
    HOUSTON OIL CO. OF TEXAS v. McGREW.
    (No. 2410.)
    (Supreme Court of Texas.
    May 5, 1915.)
    1. Public Lands <§=>173 — School Lands— Contractual Right to Purchase.
    Under Rev. St. 1895, art. 4218q, providing that the purchaser or his vendees of timber on school lands may purchase the land at <¡>2 per acre at any time within five years, the right of a purchaser of timber to so purchase the land is a contract right.
    [Ed. Noté. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. <§=173J
    
      2. Public Lands <§=173 — School Lands— Purchase — Aw ard .
    Where the purchaser of timber on school lands within five years made due application to purchase the land, and paid the purchase money to the state, he became invested with a right to the land without any award by the commissioner.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544^551; Dec. Dig. @=173.]
    .3. Public Lands <§=173 —Trial <§=192 — Purchase oe School Lands — Receipts— Date oe Payment.
    That the state treasurer’s receipt for the ■money paid by a purchaser of school land was dated July 13th did not controvert positive evidence afforded by an entry on the treasurer’s account that the payment was made on June 2Sth; and hence it was not error' for the court to assume, in an instruction, that payment was .made on June 28th.
    [Ed. Note. — For other cases, see Public Lands, •Cent. Dig. §§ 544-551; Dee. Dig. <@=173; Tri_al, Cent. Dig. §§ 432-434; Dec. Dig. <@=192J
    4. Appeal and Error <@=730 — Assignment oe Error — Grounds oe Objection — Instructions.
    Where an assignment of error, challenging the charge in a suit in trespass to try'title, complained only that the charge was erroneous in that it authorized computation of the limitation period from the date of the commissioner’s award of school lands purchased, an objection that the charge was erroneous in that it assumed, though the evidence thereon was conflicting, that payment of the purchase money was on a ■ certain date, could not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dec. Dig. <@= '730.]
    .5. Adverse Possession <§=100 — Acts Constituting — Improvements.
    That a part of defendant’s fence on improved land lies on another quarter section adjoining the one on which he has a residence and the remainder of his improvements does not prevent him from recovering the quarter section, on a claim of title by adverse possession in a suit in trespass to try title.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. <§= 100.]
    ■ 6. Trial <§=192 — Instructions—Assumption oe Fact.
    Where, in trespass to try title, the undisputed evidence showed defendant’s right to recover under the ten years’ statute of limitations, unless Ms occupancy was broken by an acknowledgment of tenancy, a charge that, if defendant had made such acknowledgment, he could not recover, but, if he did not agree to acknowledge such tenancy, he could recover, was not objectionable as invading the province -of the jury. v
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. <@=192.]
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Action by the Houston Oil Company of Texas against William McGrew. Judgment for defendant was affirmed by the Court of Civil Appeals (143 S. W. 191), and plaintiff brings error.
    Affirmed.
    Hightower, Orgain & Butler, of Beaumont, and H. O. Head, of Sherman, for plaintiff in error. Joe W. Thomas, of Woodville, for defendant in error.
   PHILLIPS, J.

This was a suit in trespass to try title by the Houston Oil Company of Texas to recover of McGrew a 640-acie section of land in Tyler county. The defense was a limitation title to 160 acres under the statute, based upon improvements and ten years’ occupancy of a part of the section and an adverse claim to the whole of it. McGrew prevailed under this plea on the trial, and the land was partitioned under the judgment ; 160 acres, including his improvements, being set aside to him, and the remainder of the section being allotted to the oil company.

The land was originally school land belonging to the state, classified as “timber land.” The oil company claimed under a purchase from the state by V. Wiess, who in 1895, under the act of -1895, purchased the timber on the section, and thereafter, on June 28, 1899, under the act of 1895 (Acts 24th Leg. c. 47), as amended in 1897 (Acts 25th Leg. c. 129) — article 4218q, R. S. 1895, and, as re-enacted with modifications and additions, now article 5430, R. S. 1911 — made to the Commissioner of the Land Office due application to purchase the land itself at the valuation fixed by the statute, of $2 per acre cash. The account of the state treasurer showed that Wiess, on the same date of his application to purchase the land (June 28, 1899), deposited with the treasurer the full amount of the purchase money. The latter issued his receipt to Wiess under date of July 13, 1899, and it was filed in the Land Office the following day. The award was made by the Commissioner on July 18, 1899, and the patent was issued on August 15, 1899.

The evidence was undisputed that, at the time of the trial, McGrew had been living upon the section for about 21 years, with improvements upon it consisting of his dwelling house and outbuildings, and an inclosed farm of about 25 acres, cultivating, using, and enjoying the premises; and there was evidence of his adverse claim throughout that period to the entire section.

The question in the case is with respect to the date when limitation began to run in Mc-Grew’s favor, which is determined by tne time when it may be said that Wiess acquired his right to the land. The suit having been filed on July 13, 1909, the trial court instructed the jury that, in determining the question <of limitation, they would reckon the time of McGrew’s occupancy from June 28, 1899, which, as has been stated, was the date upon which Wiess made his application to purchase the section and, according to the treasurer’s account, paid the purchase money to the state — more than ten years before the institution of the suit. The oil company insisted in the Court of Civil Appeals, and maintains here, that it should have been computed from the date of the award of the land by the Commissioner, which was less than ten years before the suit was filed.

Article 4218q, R. S. 1895, under which the land was purchased by Wiess, after declaring that a purchaser of the timber on the timbered school lands of the state should have five years from the date of his purchase within which to remove the timber, concluded with this proviso:

“Provided that the purchaser or his vendees of any such timber shall have the right to purchase the land upon which such timber so purchased is situated at two dollars per acre, cash, at any time before the expiration of five years from date of purchase of timber under the provisions of this chapter.”

The effect of this statute was plainly to confer upon Wiess a contractual right, as the purchaser of the timber upon the section, to purchase the section itself at the price of $2 per acre cash at any time within five years from the date of his purchase of tho timber. Jumbo Cattle Co. v. Bacon, 79 Tex. 5, 14 S. W. 840; Hooks v. Kirby (Civ. App.) 124 S. W. 156; Wing v. Dunn (Civ. App.) 127 S. W. 1101 (writs of error refused in both cases).

With this true, it follows that when, within the five-year period, he made due application to purchase the section and paid the purchase money to the state, he became invested with a right to the land, without any award by the Commissioner, since the latter, under the statute, had no authority to refuse to make the award. Jumbo Cattle Co. v. Bacon; Burnett v. Winburn (Civ. App.) 25 S. W. 969; Watts v. Wheeler, 10 Tex. Civ. App. 117, 30 S. W. 297. If the award was required, and it was also necessary that Wiess make affidavit that the timber had not been removed, and of his sole interest in the purchase, as is contended by the oil company in its argument, the filing of such affidavits was clearly a prerequisite to a valid award. On this theory there was no valid award of the land to Wiess, and the oil company had no title upon which to maintain the suit, for the first affidavit was not filed until after the award was made, and the other does not appear to have been filed at all.

It was undisputed that Wiess made his application to purchase the section on June 28, 1899; and we agree with the Court of Civil Appeals that the evidence conclusively established that as the date of his payment of the purchase money to the state. The only evidence touching the date of payment' was the entry upon the state treasurer’s account, showing that the payment was made to the treasurer by Wiess on June 28, 1899, the same day on which he made his application to purchase, and a receipt for the money issued- by the treasurer, dated July 13, 1899. The receipt in no wise purported that the payment was made on the date of its issue. It did not profess to evidence any date as the date of the payment. It merely acknowledged the receipt of the money. It was therefore not inconsistent with the positive evidence of the payment on June 28, 1899, afforded by the treasurer’s account. It is altogether improbable that the treasurer would have charged himself with the payment on his books before the date it was actually made, whereas the issuance of a receipt for the money on a later date was perfectly consistent with the previous payment. The receipt, in other words, in no sense contradicted the entry as proof that the payment was actually made on June 28, 1899. >ve hardly see how ordinary minds could differ upon the question, and therefore conclude that it was not improper for the court to assume, as was the effect of the charge, that the payment was made on that date.

The date of the payment becomes, in fact, an immaterial question under the actual proposition advanced by the oil company in the Court of Civil Appeals and in this court, for its contention entirely repudiates it as a determining factor in the issue of limitation. Its position throughout the case has been that the date of the Commissioner’s award alone fixed the time when limitation began to run in McGrew’s favor. That was the single proposition submitted in the Court of Civil Appeals under its assignments of error challenging the charge that the jury should compute the period of McGrew’s occupancy from June 28, 1899, and is likewise the sole ground of error assigned in this court with respect to the instruction.

The fact that a part of McGrew’s cultivated field lay across one of the boundáry lines of the section did not, in our opinion, defeat his right to assert a limitation title to 160 acres of the section under the statute. His residence and improvements were entirely upon the section, and under the finding of the jury, supported as it was by sufficient evidence, his adverse occupancy of a part of the section and his adverse claim to the whole of it for the full period of ten years before the institution of the suit must be treated as established. In the state of the record, this was a sufficient basis to support the judgment in his favor. It is not disclosed how much of his field lay without the section. As remarked by Judge Reese in his opinion, it may have been a portion so small as to be negligible. Under such condi. tion of the proof, this question cannot be regarded as a material one.

McGrew was entitled to recover upon his plea of limitation, according to the undisputed evidence, unless, under the issue tendered by the oil company, the adverse character of his occupancy was broken by an acknowledgment of tenancy to it. The province of the jury was therefore not invaded by the charge of the court to that effect. The judgments of the district court and the Court of Civil Appeals are affirmed.

HAWKINS, J., dissents. 
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     