BRADFORD v. ROBISON, Land Com'r, 141 S.W. 769

RAMSEY, J. This is an original proceeding filed in this court, and by its permission, in which the relator seeks a mandamus compelling and requiring the respondent to accept and file the deed of conveyance. hereinafter referred to as well as relator’s substitute obligation, and to substitute him as the purchaser >of the land involved in the controversy and as the exclusive owner thereof. The grounds of the action are thus stated in the petition, and are substantially undenied: “That heretofore, to wit, on the 20th day of August, A. D. 1908, the said respondent, J. T.

Robison, acting in his official capacity as- Commissioner of the General Land Office, awarded to one H. A. Hamilton, of the county of Val Verde, and state of Texas, the following described tract of school land as additional to private lands already owned by the said Hamilton, to wit:

Section No. 766, certificate No. 2318, G., C. & S. F. Ry. Co., grantee, situated in the county of Val Verde, and state of Texas, and containing six hundred and forty (640) acres. That said land so awarded to the said Hamilton was situated within a radids of five miles of the said Hamilton’s private lands, upon which the said Hamilton resided.

That the said Hamilton resided on the said land as required by law, and used the same in connection with his home tract and other sections of school land purchased by him from the state from the time of the said purchase and date of award until on or about April 12, 1910, and long after the lapse of one ye-ar from the date of his said award. That on or about the date last above mentioned the said H. A.

Hamilton filed with the said respondent his proof of occupancy to that date, and about the same time transferred for a valuable consideration and by deed duly executed and recorded in the deed records of Val Verde county, Tex., and filed with said respondent, the above-described tract and

section of land to this relator as additional land to relator’s home

section theretofore purchased. That at the time of the said transfer to this relator said relat- or was residing on and claiming as his home

section 14, certificate No. 894, Jacob Hahn, grantee, containing six hundred and forty (640) acres of land and located partly in Kinney and partly in Edwards county, Tex. That with said deed frojn said Hamilton to this relator said relator transmitted to the respondent his substitute obligations, by which this relator assumed and promised to pay to the state of Texas all moneys due by the said Hamilton to the state for said sections so transferred, together with all interest due and to become due thereon.

That the counties of Kinney, Edwards, and Val Verde were all eight-section counties, by which is meant that any citizen may purchase with the condition of occupancy required by law eight full sections of the public free school lands of the state, and that this relator had not theretofore purchased from the state or by transfer from the other purchasers from the state his full complement of eight sections of the public free school lands subject to sale under the conditions imposed by law. That the home

section of this relator, hereinbe-fore described, is within five miles of the

section purchased by this relator from the said Hamilton. That relator is over the age of 21 years, has purchased his said designated home and other sections of the public school lands, and is in no way disqualified from holding, owning, and living out said sections so purchased as required by the law for the purchase of such public domain. That, despite all the facts herein related, the Commissioner of the General Land Office, without authority of law, and in total disregard of . the rights of this relator in the premises, did on and about the 23d day of July, A.

D. 1910, refuse, and still refuses, to file said deed from the said H. A. Hamilton to this relator, accept said substitute obligations, and substitute this relator on the books of his office as the owner of said

section 766, so purchased as aforesaid, giving as his reason, and only reason therefor, that the said

section was not wholly within a radius of five miles of this relator’s designated home section. This relator concedes as a matter of fact that all of his designated home tract is not wholly within a radius of five miles of tfie said tract purchased from the said Hamilton, hut this relator contends that the said two sections are within the five miles required by law for the transfer and substitution of such lands.” Besides a general demurrer the respondent filed an answer to this effect: “That the allegations contained in relator’s petition are substantially true, but that the home tract of relator, to wit, No. 14, is not wholly within five miles of

section No. 766, of which latter

section he seeks to become a substitute purchaser; that a five-mile radius from the nearest corner of said home

section No. 14 will cut off but a small corner of said

section No. 766, as shown by a plat hereto attached and made a part of this answer. Wherefore, respondent says that relator’s said home

section No. 14 is not within five miles of said

section No. 766 as required by

section 6 of

chapter 10S of the Acts of the Regular Session of the Twenty-Ninth Legislature (1905), and of'

section 6d of

chapter 20 of the Acts of the First Called Session of the Thirtieth Legislature (1907).” The location of the land owned by relat- or and the land (section 766) purchased by him from Hamilton, and with reference to which the mandamus is sought, will more distinctly appear from the following plat:

Section Gd of the Acts of the 30th Legislature of 1907 (see p. 494) and its proper

interpretation controls and must decide the icase. This

section is as follows: “Sec. 6d. One who hereafter buys land on condition of settlement shall not sell any part of such purchase prior to one year after date of award of the home tract, nor prior to one year after date of the award of the first additional tract purchased to a formerly acquired home unless the required residence has sooner been completed.

After the lapse of time aforesaid the purchaser may sell all of his land or any part thereof in whole tracts, according to his purchase, to another qualified purchaser, who will become an actual bona fide settler on some part thereof at date of his transfer if the residence is not complete, and such assignee shall complete the residence on the land by continuous residence thereon as required of his vendor, and if the vendor does not sell all of his purchase he shall continue to reside upon his home tract or on some part of that retained until the completion of the residence required of him.

A purchaser on condition of settlement under this act, or any former law, who may have the right to sell his land or a part of it, may sell his whole home tract or one or more of his additional tracts as a whole, according to his purchase to another purchaser who owns a designated home tract within five miles of each of such tracts as he may purchase as assignee, and the assignee may take each of the tracts as additional to his own designated home tract; provided the total tracts so purchased by an assignee prior to the completion of the residence of the vendor, together with the former purchase of the assignee, shall not exceed one complement of sections.

In such cases the assignee shall continue to reside in person upon either his formerly designated home tract, or on one of his formerly acquired additional tracts, or on one of his additional tracts purchased as assignee, continuously until the completion of the residence required of him under his former purchase and that of his vendor.

No tract hereafter purchased shall be transferred except as a whole prior to the issuance of patent thereon, but should a transfer of less than a -whole tract be made after the purchaser has the right to sell in whole tracts under the provisions of this act, such transfer shall not be void, but the owner shall not be substituted as assignee on the records of the Land Office nor recognized on the accounts kept by the State Treasurer.

The failure to pay the interest on the whole of such tract shall operate as a forfeiture of every part thereof.” < It is admitted that the home tract is reached within less than five miles of the tract sought to be purchased, and it is also conceded that beginning at the point of the home

section nearest the

section sought to be bought that it is less than five miles to

section 76G, but that a circumference described from the nearest point of the home

section with a radius of five miles will include but a small portion of the land sought to be acquired. What, then, is the meaning of the statute? Does it mean that the land to be purchased must be wholly within a radius of five miles, or that the land to be purchased must not be more than five miles from the home section?

We think a fair construction of the statute must lead to the conclusion that, with a view of protecting the state from purchases by speculators and thus retarding the growth and development of the state, it was intended to make certain that such purchases were on account of, and to be used by, actual settlers owning property in the vicinity, and, having in mind this purpose, we ought not to adopt a strained or technical construction of the statute as to an adjacent landowner.

The land purchased is within (or distant from) five miles from the home section, and relator, having adopted all the precedent steps, is entitled to acquire same. Let the mandamus issue as prayed for, with costs.