L. N. Halbert v. J. J. Terrell, Commissioner of the General Land Office, et al., 102 Tex. 29

Mr. Chief Justice Gaines delivered the opinion of the court. This is an application to compel the Commissioner of the General Land Office to receive the application of relator to buy a

section of school land and to recognize him as the purchaser thereof. H. L. Kokernot, who is shown upon the records of the Land Office as the purchaser of the land, is made a co-respondent. The undisputed facts as shown by the pleadings in the case are as follows: On the 28th day of August, 1899, the

section of land in controversy, which is

section 97 of the Galveston, Harrisburg & San Antonio Railway Company surveys, together with several other sections, was leased to J. W. & H. L. Kokernot for the term of ten years from the 26th day of August, 1899. The Kokernots on the 24th day of February, 1902, transferred their lease to part of the leased lands to one Henderson, and, on the same day, another part to one Gillett, and on another date not given another part to one Winders. Sales of the lands the leases to which were so transferred, were made by virtue of the preference right so given by said assignment. On the 11th day of June, 1903, the lease on

section 97, -and ether sections was transferred to S. D. Cawthon. On the 11th day of January, 1907, Cawthon transferred the lease on that

section to H. L. Kokernot, who thereupon made application to purchase the

section as the holder of the lease. His application was accepted and the land awarded to him as a purchaser. We have been cited to no statute, nor after a search here have we found any, which provides that an attempted purchase of leased land by a lessee forfeits all rights in the leased land in case he is not entitled to buy. It is difficult in this case to say that H. L. Kokernot was entitled to purchase

section 97. It would seem to be the duty of the Commissioner in such a case to say to the applicant to purchase: I can not recognize your right to purchase and therefore you must hold to your lease. Therefore we deem it unnecessary to pass upon the question whether’ H. L. Kokernot is entitled to buy, for, if not, his lease is good and the land was not on the market at the time relator made his application to purchase. The tender of the lease being in consideration and in expectation that he will be permitted to purchase the land if the purchaser be refused, it is evident the offer to cancel is not accepted.

Since in no aspect can we see that the land was on the market for sale at the time of relator’s application to purchase the writ of mandamus must be refused. The respondents seem at a loss to ascertain whether the relator is seeking a mandamus as to

section 99. But if the purpose of the proceeding is in part to have a mandamus to- compel the Commissioner to award the land to the relator, we can not consider that question, because it appears that that

section has been awarded to another applicant who is not made a party to the suit. The mandamus is refused.