
    ATCHISON et al. v. HANNA.
    (No. 2356.)
    (Supreme Court of Texas.
    March 10, 1915.)
    1. Public Lands ⅞=>173 — School Lands — Loss of Rights by Purchaser.
    Under Acts 29th Leg. c. 103, providing for the sale and lease of school and asylum lands, cancellation of a sale and resale to another by the Commissioner of the General Land Office for failure to file an affidavit of settlement, as required by section 4 of the act, was unauthorized when the plaintiff purchased under section 5.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. <⅜=>173.]
    2. Limitation of Actions <⅜=>118 — Commencement of Action — Time for New Suit after Dismissal.
    The filing of mandamus proceedings in the Supreme Court to compel the Commissioner of the General Land Office to cancel a resale of land previously purchased by plaintiff under Acts 29th Leg. c. 103, § 5, providing for the sale and lease of school and asylum lands, was a sufficient institution of “suit” to recover the land to remove from the operation of Rev. St. 1911, art. 5458, fixing one year as the statutory period of limitation on actions for lands purchased or leased from the state, a suit of trespass to try title, brought by the petitioner against defendant after dismissal of the for--mer’s petition for mandamus.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 527, 528; Dee. Dig. <©=» 118.]
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by S. W. Hanna against John Atchi-son and another. Judgment for defendants was reversed by the Court of Civil Appeals (141 S. W. 190), and they bring error.
    Affirmed.
    John B. Howard, of Pecos, for plaintiffs in error. Charley Gibbs, of Midland, Theodore Mack, of Ft. Worth, and Chas. Rogan, of Austin, for defendant in error.
   PHILLIPS, J.

The suit was one in trespass to try title, instituted by Hanna, the defendant in error, against John Atchison and B. Armstrong, the plaintiffs in error, for the' recovery of four sections of public school land in Andrews county. The lands were originally covered by a state school land lease, owned by Hanna, as assignee. In accordance with the provisions of section 5 of the act of 1905 (General Laws 1905, pp. 159-67), under the preference right bestowed by the act, Hanna duly filed his application for the purchase of the four sections in the General Land Office on June 15, 1907, and thereon they were awarded to him on June 30, 1907. In accordance with the provisions of the act and within the time prescribed he duly perfected his settlement upon the land, but failed to file in the Land Office his affidavit showing such settlement as required by the provisions of section 4 of the act. On account of such failure the Commissioner canceled the sale to Hanna, and thereafter on application to purchase the four sections were awarded to Armstrong who made his settlement, and filed his affidavit to that effect in the Land Office within the required time. After residing on the land continuously for more than a year Armstrong sold to Atchison, who thereupon became an actual settler, having fully complied with the law in respect to substitute purchasers, and was in possession at the time of the suit. Within a year after the award to Armstrong, Hanna, joined by his wife, filed in this court a motion for leave to file a petition for mandamus against the Commissioner of the General Land Office and Armstrong, seeking to have canceled the award to Armstrong, and to have themselves recognized as the lawful purchasers of the land. The motion was granted, and the petition for mandamus permitted to be filed. It was afterwards dismissed for want of jurisdiction, caused by the interposition of Armstrong’s answer, which presented a question of fact as to whether in his original purchase Hanna had acted in collusion with one Allen. To meet the plea of limitation interposed by the defendants, Hanna pleaded that Armstrong had injected, by Ms answer, the question of fact in the mandamus proceeding in tbis court fraudulently, for ,tbe purpose of ousting tbe jurisdiction of tMs court in that proceeding. Upon the trial the proof was uncontradicted that there was no collusion between Hanna and Allen in the original purchase by the former of the land' from the state. In the trial court judgment was rendered for the defendants. This judgment was reversed by the honorable Court of Civil Appeals for the Second District, and judgment rendered in Hanna’s favor for the land.

The ease turns upon the question whether, as determined by the provisions of the act of 1905, there was a lawful forfeiture of Hanna’s purchase of the land from the state.

Sections 3 and 4 of the act contain certain general provisions which are applicable to all sales of surveyed land made under its terms, since they relate to sales, generally, of such land. Among them are the provisions in section 4 in respect to forfeiture for default in the payment of ‘interest, and for transfer of his land by a purchaser prior to his actual settlement.

Section 5, however, very plainly relates to sales under the act of a particular class of the surveyed lands, namely, sales of lands out of those held under lease from the state, and was intended to confer upon such lessee or his assignee a preferential right to purchase of such lands the quantity allowed one purchaser under the general provisions of the act. It was under this latter section that the sale to I-Ianna of the land in dispute was made; it being then held by him as an assignee under lease from the state.

In relation to the occupancy and settlement required of a purchaser of surveyed land, the' act contains two distinct forfeiture provisions, found respectively in sections 4 and 5; one having reference to sales, generally, and the other relating to sales of the particular class of land purchasable under section 5. The provision in section 4 is in the following language:

“The applicant shall have ninety days from the date of the acceptance of his application within which to ⅜ * * settle upon the land so purchased, and he shall within thirty days after the expiration of said ninety days given within which to make settlement,. file in the Land Office his affidavit that he has in good faith actually in person settled upon the land purchased- by him. Should the applicant fail ■to make and file the affidavit and proof of settlement as herein, provided within the time specified, the Commissioner of the General "Land Office'shall indorse that fact upon his application, canceling the.same, and immediately place the same upon the market,” etc.
That in section 5 is as follows:
“One who buys out of a lease as above provided and does not comply with the law as to settlement and residence, the Commissioner shall, when sufficiently informed of that fact, cancel such sale and place the land upon the market for sale as provided in this act for canceled leases.”

WMle, according to section 4, the failure to make the required proof of settlement within the prescribed period is constituted a ground for cancellation of sales generally, it is distinctly omitted as a ground of forfeiture from the provision on the same subject found in section 5. In the latter section a failure “to comply with the law as to settlement ana residence” is made a ground of forfeiture, but not the failure to malee proof that the law had been complied with.

The language used in the above quoted provision of section 5 plainly indicates that as to sales under that section the filing of proof of settlement was not contemplated as the means of affording information to the Commissioner that the law as to settlement and residence had been complied with, the only purpose of a requirement to that effect, and that the section was not framed with the view of constituting the failure to make such proof a ground of forfeiture. It will be noted that under that provision the authority of the Commissioner to cancel a sale for failure to comply with the law as to settlement and residence exists only when “he is sufficiently informed of that fact.” This reveals that the Legislature intended that Ms exercise of the power should be dependent upon his having positive information of the fact, and not upon Ms want of information, or a failure of the purchaser to furnish it.

If it was intended that the quoted forfeiture provision found in section 4 should apply in respect to sales under section 5, why was a forfeiture provision on the same subject of settlement and residence, but couched in different terms, incorporated in section 5? If it was the legislative purpose to authorize cancellation of sales made under section 5 for failure on the part of the .purchaser to furnish proof of his compliance with the law as to settlement and residence, why, under the terms of that section, was the Commissioner’s authority to cancel for noncompliance with such law conferred in terms which, for its lawful exercise, require that he have positive information of the fact? The difference between the two provisions found in the respective sections cannot be ignored. It is no part of our province to inquire why it exists. We are governed only by the statute as we find it.

There is no question but that I-Ianna fully complied with the law in respect to the settlement and residence upon the land, and the cancellation of his purchase was, in our opinion, unauthorized.

The filing by Hanna of the mandamus proceeding in this court under its leave, to compel the restoration of his rights1 as a lawful purchaser of the land, cannot be considered other than as the institution of “a suit” within the contemplation of Rev. St. 1911, art. 5458, and was therefore sufficient to save his present action from the limitation prescribed 'by that article. The proceeding was an appropriate one for that purpose,. one which it was. within the power of this court to entertain, .and the issue of which it would have determined but for the injection of an issue of fact upon the question of collusion between Hanna and Allen in the former’s purchase of the land, raised by the answer filed by the respondent, Armstrong, one of the plaintiff's in error. According to the findings of the Court of Civil Appeals the proof upon the trial of the present ease was undisputed that there was no such collusion; the defendants having offered no testimony whatever to the contrary. This strongly indicates that that was an unfounded issue in the mandamus proceeding. We think, therefore, that the plaintiffs in error are in no position to contend that the institution of that proceeding was not the filing of a suit within the contemplation of the statute.

The judgment of the Court of Civil Appeals is affirmed. 
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