ERP et al. v. ROBISON, Land Office Com'r, 157 S.W. 1160

PHILLIPS, J. We have carefully considered the motion for rehearing, but adhere to our original disposition of the case. .

In the opinion filed appears this language,: “It furthermore appears from the petition that, when the land was awarded to Erp at the price of $3 per acre, it stood appraised at $5 per acre; whereby a sale was effected for less than the appraised value of the land, contrary to law.” This is possibly subject to the construction that a reappraisement of land of this character before its award, whereby its appraised value is increased, would of itself render invalid a sale made for a price at which it stood appraised when the application to purchase was filed.

It was not our purpose to determine this question, since its decision was unnecessary in the case. What we intended to make clear was that the land here involved was not sold at its appraised value, and for this reason in itself the sale was invalid. This is true since the land was not capable of sale until after a legal cancellation of the. Chambers-Schmitz sale, which did not occur until March 25, 1905, at which time the land stood reappraised at $5 per acre, whereas the sale to Erp, upon which the application for a mandamus is based, was made at $3 per acre under his premature application of February 8, 1905.

The motion for rehearing is overruled.