L. C. Barnes v. J. B. Williams, 102 Tex. 444

Mr. Justice Williams delivered the opinion of the court. This suit was brought by the defendant in error against the plaintiff in error to recover half sections Eos. 48 and 54 in Donley County, which had belonged to the school fund. Both parties claimed as purchasers from the State. The applications of plaintiff below were made and accepted by the Commissioner of the Land Office in January, 1901, and in 1904 he made proof of three years occupancy and received the statutory certificate of that fact.

The defendant, however, before such proof and certificate were made; had made his applications, July 30, 1901, which were rejected by the Commissioner January 19, 1903. The defendant alleged and introduced evidence tending to show that the sale to the plaintiff was void for the reason that plaintiff at the time it was made was not a settler in good faith upon No. 48, which was bought as his home tract.

Among the contentions of plaintiff was one that defendant, at the time of his applications, was not a settler in good faith upon his home tract (No. 48) and that he therefore had no right to attack the sale to plaintiff. These questions of fact, with correct instructions, were submitted by the trial court to the jury and verdict and judgment were rendered for the defendant, from which the plaintiff prosecuted an appeal to the Court of Civil Appeals. That court reversed the judgment and rendered one for the plaintiff, and from this the defendant prosecutes this writ of error.

One of the reasons given by the Court of Civil Appeals for its action was that the proof and certificate of occupancy produced by plaintiff precluded all inquiry as to the fact of his settlement upon the land. We are of the opinion that this was error. The decision of this court in the case of Logan v. Curry, 95 Texas, 664, does not go so far. In that ease when the certificate of occupancy was issued no right had been acquired by any third person to be affected by the action of the Commissioner in issuing it.

The only effect that was given to his certificate was that it determined the status of the sale so conclusively as to preclude subsequent purchases so long as the State allowed it to stand. That the Commissioner has the power to do that is one proposition, but that he has power to adjudicate the rights of other claimants already accrued, is quite a different one. We find nothing in the statutes which expressly or by construction gives him any such authority. It would be extremely difficult to give to such a certificate a greater effect than that given, to a patent issued by him.

While it is held that a patent which is- not void is conclusive against claims subsequently accruing, it is equally true that prior ones are not concluded' by the act of the Commissioner. He is entrusted by law with no power to adjudicate between rival claimants whose titles have become fixed. He may, and often must, pass upon the questions involved merely for the purpose of determining his own course of action; but that action, when taken, ordinarily has no conclusive effect on the titles upon which he thus incidentally passes. These may still be asserted and adjudicated in the courts.

There is nothing in the statute which provides for a hearing of rival claimants, when proof of occupancy is offered. The proceeding is purely ex parte, and there is nothing in it to suggest that existing rights of any but the person offering it are to be considered. It would seem to be contrary to fundamental principles to give to such action a conclusive effect against other claimants of the land for a hearing of whom no provision is made. And this of itself indicates sufficiently that the Legislature intended no such effect. Nor can we agree with the other position taken by the Court of Civil Appeals.

It is, in effect, that school lands were taken off the market and sales thereof suspended by the Act of 1901 until the statement provided by

section 1 thereof had been made to the county clerks. The Act does not so provide. This

section was intended merely to give fuller and more accurate information as to unsold lands in order to help purchasers and facilitate sale. It was not intended to stop sales which were then going on and continued to be made under other provisions. Such has been the practical construction of it, as appears from cases in this court, and we see nothing in the law requiring a different one. Other provisions were made under which sales could be and were continually made with which this provision in no way conflicts.

Having reached this conclusion we must see if the judgment should have been reversed for any other reason assigned by the defendant in error in the Court of Civil Appeals. According to repeated decisions of this court and of the Courts of Civil Appeals, one who shows that his title consists of a purchase. of school lands which is in good standing and recognized by the officers of the State in the manner prescribed by the statute makes a prima facie case against an adversary who claims under a subsequent rejected application.

When the latter contends that the elder sale was void he must show the facts which invalidate it. The plaintiff sought to get the benefit of this rule by special charge Ho. 4, putting upon the defendant the burden of proving the fact by which he sought to defeat plaintiff’s title, and there being nothing to that effect in the court’s charge and the evidence being such as to make it proper, the special instruction should have been given. While the general charge contained nothing expressly relating to the burden of proof, the jury might well have gathered that such burden was on plaintiff.

For this reason the judgment of the District Court should have been reversed; but final judgment should not have been rendered by the Court of Civil Appeals. Other assignments nresent no reversible error. Judgments of the Court of Civil Appeals and of District Court reversed and cause remanded. Reversed and remanded.