
    STOCKWELL et al. v. ROBISON, Commissioner of General Land Office, et al.
    (No. 2900.)
    (Supreme Court of Texas.
    April 3, 1918.)
    1. Public Lands <®=j172(8) — Payment of Interest — Eokfeiture.
    Purchasers of public lands, against whom forfeiture has been declared for failure to pay installments of interest, may be relieved of the forfeiture only in the absence of intervening rights of other persons.
    2. Public Lands <®=al72(3) — Reappraise-MSNT AND S'ALE — APPLICATIONS — TIME OF Making Affidavit.
    Where purchasers of public lands failed to pay installments of interest, and the sale was declared forfeited, and other persons made application in due course of mails, as required by Vernon’s Sayles’ Ann. Civ. ,St. 1914, art. 5410, and made bids for more than the appraised value, tendered the required cash payment, and filed the necessary affidavit, they perfected their rights to the land, although the affidavit was made a few days before the land was officially declared to be for sale, but was duly filed as required, by mail.
    3. Public Lands <§=^172(8) — Reappraisement — Discretion of Commissioner.
    The commissioner of public lands may, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5407, when a _ second forfeiture has been declared, reappraise land at less than the amount at which it was once appraised, under Acts 33d Leg. c. 160 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5423a-5423f), permitting repurchase by former purchasers whose purchase was declared forfeited; his powers under the general statute being independent of those inferred by the act of 1913.
    Original petition for mandamus by William R. Stockwell and another against J. T.’ Robi-son, as Commissioner of the General Land Office, and others.
    Writ refused.
    • Gregg & Love, of Austin, and Hudspeth, Pale & Harper, of El Paso, for Clyde Hudson. B. F. Looney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., for respondents.
   PHILLIPS, C. J.

The relators, William R. Stockwell and H. L. Tolar, here seek a mandamus to require the Commissioner of the Land Office to re-instate their purchases of two sections of public land. The land was originally awarded to George C. Harris and A. L. Harris. Tne awards to them were forfeited on July 12, 1913, for failure to pay the interest on their obligations. They applied for its re-appraisement under the Act of 1913 (Chapter 160, General Laws of 1913), and it was re-appraised-under that act, one of the sections being valued at $5.00 per acre and the other at $6.00 per acre. Thereafter, the two sections were re-awarded to the original owners, to whose rights the relators succeeded as substitute purchasers. They failed to pay the interest accruing November 1, 1915. They were notified by the Commissioner in April, 1916, that a forfeiture would be declared on August 15, 1916, unless they paid the interest by that time. It was not paid, and on August 25, 1916, the sales to them were duly declared as forfeited. Following the forfeiture, the Commissioner, on the same day, classified the land as agricultural and appraised it at $4.00 per acre; the list, ap-praisement and notice of the forfeiture being sent at the same time to the county clerk of the county where the land lay, and received by him at 4 P. M. on August 29, 1916, and recorded in his office at 10 A. M. on August 30, 1916. In the list of lands duly advertised by the Cbnmiissioner as subject to forfeiture if the interest were not paid by August 15, 1916, and as subject to purchase on September 1, 1916, these sections were included,— classed as agricultural land and their appraised value being stated as $4.00 per acre.

On September 1, 1916, the applications respectively of Clyde Hudson and W. T. Morris to purchase the two sections as home tracts at $4.03 per acre were received by mail at the Land Office. Each was in due form and accompanied by the necessary preliminary payment, the obligation of the applicant, and the affidavit required of him by law, dated August 28, 1916. The applications were duly filed at 10 A. M. the following day, September 2d. On the same day, September 2d, the relators had a bank of Alvin, Texas, wire the Commissioner that it was remitting him the interest due by the relators, the amount of which they had delivered to the bank for that purpose. The telegram was received by the Commissioner that afternoon. The amount of the interest was forwarded and received at thé Land Office on the morning of September 5th. The Commissioner refused to reinstate the purchases of the relators because of the rights acquired by Hudson and Morris.

The relators were entitled to be relieved of the forfeiture declared against them for the non-payment of their interest only in the absence of intervening rights in others. They made no offer to pay the interest until after Hudson and Morris had filed their applications to purchase. Hence the question in the case is whether Hudson and Morris acquired any rights to the land.

When the applications of Hudson and Morris were filed in the Land Office the land was on the market for sale. From aught that appears here, their bids were the highest offered. Each was for more than the appraised value. They tendered the required cash payment and obligation, and filed with their applications the necessary affidavit. In our opinion they perfected their rights to the land.

The chief objection urged against their claims is that they made their affidavits on August 28th, — prior to the time the land was on the market, rendering, it is said, their applications premature. We. think the objection is wholly without force.. Anyone entitled to purchase land in the situation of this may make application for it at any time after it is open to purchase, even though it be immediately afterward. This is plainly the contemplation oí the law since it does not postpone the right to make the application to any particular period after the land is upon the market. The application is of no effect until filed in the Land Office, though the statute — Article 5410 — provides that it shall be filed “through due course of mail and not by anyone in person.’’ Byrne v. Robison, 103 Tex. 20, 122 S. W. 256. It would be a very unreasonable requirement to compel everyone entitled to bid upon these lands on the day they are subject to purchase to come to the state capital for the purpose of making the necessary affidavits to accompany their applications, in order to avoid their being made before the identical day the applications may he lawfully filed. On the contrary, it is the theory of the law that the applications may be mailed from points in the region of the land, in most instances remote from the 'capital, requiring ordinarily a few days for transmission. It is apparent that this was true of the applications of Hudson and Morris which were made in Yoakum County where this land is situated. In such cases there can be to our minds no objection to the affidavits being made substantially at the time the applications are mailed, where, as here, the truthfulness of their statements, either when made or when the applications are filed, is in nowise challenged. It is evident that the affidavits of Hudson and Morris were made on August 2Stli for the purpose of having their applications reach the Land Office as early as possible after the land was upon the market. They were made only a few days prior to that date. The applications were not received or filed before the land was open to purchase, and were therefore not premature. The affidavits were of no effect until the applications were filed. Under the facts they are to be treated as having been made contemporaneously with the filing of the applications. McGee et al. v. Corbin, 96 Tex. 35, 10 S. W. 79.

The further contention is made that the Commissioner’s re-appraisement of the land at $4.00 an acre after its appraisement under the Act of 1913 at a higher value and after the forfeiture of the sales to relators declared on August 25, 1916, was void. In so appraising the land the Commissioner acted under the authority conferred upon him by Article 5407. The office of this article is entirely distinct from the provisions in respect to appraisements found in the Act of 1913, and it was not affected by that act It gave full warrant to the Commissioner’s action.

The mandamus is refused. 
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