J. S. Martin v. D. Q. McCarty, 74 Tex. 128

Hobby, Judge. This is a suit by the appellant J. S. Martin against the appellee D. Q. McCarty to recover

section 128, surveyed by the Southern Pacific Railway Company for the State for the benefit of the common school fund, containing 640 acres of land, and situated in Tom Green County. The plaintiff’s petition is in the usual form of an action of trespass to try title and alleges ownership in plaintiff on the 2d day of January, 1884.

It appears from the evidence in this case offered by the plaintiff that the Land Board of the State, under the Act of April 12, 1883, placed the land which is the subject matter of this suit upon the market for sale, and provided that any one desiring to purchase should make a written application addressed to the secretary of said board describing the land by block, number, etc., and with sketch of survey accompanying and price offered. This was to be registered by the surveyor of the county and open to inspection. The surveyor was required to endorse on the application the bid and date of registry.

This was to be done at least ten days before the first Tuesday of the month following. The application was to be forwarded to the board for consideration. In accordance with the plan adopted by the Land Board for the purchase of the land the plaintiff on December 14, 1883, applied in writing to the surveyor of Tom Green County, who registered the application, and it was forwarded to the board at Austin Avith the sum of 642.67, the first payment on the land, which was received by the proper authorities. It was shown by the endorsements upon the application of Martin that his bid was Ho. 220.

His obligation for the balance of the unpaid purchase money Avas executed in the stun of $1237.33, payable to the State. The payment of the sum of $61.86 interest upon the foregoing obligation was also shown. Upon the application of Martin on December 14, 1883, forwarded as above stated to the board at Austin, the land in controversy was awarded to him on the 2d day of January, 1884. H. B. Tarver testified that he was the surveyor of Tom Green County in 1883 and 1884, and was the agent of the Land Board authorized to sell the school land in that county.

That as such agent he did not sell the land in controversy to Martin in that county. He received and registered the application and bid made by Martin in December, 1883, and forwarded it to the board. That there was no classification made and tabulated statement of the school land on file in his office under the law of April 12,1883, or at any other time, under the resolutions of the Land Board. That the land in controversy was not sold or offered for sale at public outcry in Tom Green County. That there Avere about 140 applications received by him on the last day they could be filed in his office.

He did not offer the land for sale in Tom Green County at public outcry. The foregoing facts constituted the foundation of appellant’s title. It appears from the testimony that the application of appellee Avas rejected on April 24, 1884. The questions raised upon this appeal are, whether the appellant, plaintiff in the lower court, has established any title, complete or inchoate, which Avould authorize a recovery? If not, has the appellee shown by the proof that he has title as an actual settler as specially pleaded by him ?

The conclusions of fact and law found by the court were: “That the land in controversy Avas on the 14th day of December, 1883, public free school land in Tom Green County. That on the 17th day of December, 1883, the appellant Martin made application to purchase under

section 7 of the Act of April 12, 1883, which was duly filed and registered in the surveyor’s office. That the application was filed in said office on December 21, 1883, and in the office of the secretary of the Land Board on January 3, 1884. That the first payment of $42.07 was made by Martin on the land, and that it was awarded to him by the board on the 2d day of January, 1884. That the land was not sold in Tom Green County.” The conclusion of law found from these facts by the court was that the< gale not having been made in Tom Green County, where the land was. situated, the sale was void.

The .judgment was that “the plaintiff take-nothing by his suit and the defendant go hence without his costs, and the defendant take nothing by his cross-action and recover(eosts of plaintiff.”' Both parties ajopealed and assign errors. The defendant McCarty pleaded specially his title as a purchaser under

section 5 of the Act of April 12, 1883, for the benefit of actual settlers in good faith who had settled on or before the first day of January, 1883, under the Act of April 6,1881. The proof in support of his title consisted of his application as such purchaser to the secretary of the Land Board, dated July 14, 1883, with the statement that the land in controversy had been duly appraised by the surveyor of Tom Green County and by the Commissioners Court of said county approved, and filed in the Land Office, as provided by

section 5 of the Act of 1883, showing the appraisement to have been under the Act of 1881, at $1 per acre, accompanied with his affidavit that on the-day of March, 1882, he had procured the surveyor to survey the said

section 12-8. That he immediately entered upon and has continuously held possession of and occupied the same, and does now have full and complete possession and occujiancy of said section. That he has erected valuable improvements thereon, consisting of a corral and lumber dwelling house, and has made every effort that the law permitted to purchase the same, and desires now to purchase said

section under the Act of 1881, as provided by

section 5 of the Act of 1883; with the supporting affidavits of two citizens, each stating that he knew of his-own personal knowledge that said applicant settled upon said land prior to January 1, 1883, and has continuously held and occupied said land up to the present time and has valuable improvements on said land. There was proof of the payment by appellee McCarty of the sum of $71, being one-thirtieth of the appraised value of the land and interest for one year thereon. Is is apparent, we think, from the foregoing that appellee McCarty having applied to purchase the land on the 14th day of July, 1883, under

section 5 of the Act of April 12,1883, providing for the acquisition of the same by actual settlers in good faith, would be entitled to a decree under his pleadings had his application been a full compliance with this law, there being no assertion of or claim to any right in appellant Martin prior to December, 1883. But it is nowhere shown by the evidence that appellee McCarty was a settler in good faith as that character and term have been repeatedly described and defined in this State. Burleson v. Durham, 46 Texas, 159.

That this was essential to a recovery by appellee is recognized by his answer, but in this important and vital respect the proof does not support the answer which fully alleges him to be such purchaser. This question has been discussed in Snyder v. Nunn, 66 Texas, 358, and cases there cited, and all that we might say with reference to the necessity for establishing this fact would be but a repetition of what was there said.

The evidence of appellee merely shows that he settled upon and had possession of the land and erected valuable improvements'thereon on the-day of March, 1883; that he desired to purchase the land and still does wish to purchase the same under the Act of 1881, as provided by

section 5 óf the Act of 1883. The statute of April 6, 1881, gives a preferred right to purchase to “any persons having improvements upon any of such land prior to the taking effect of this act for the period of six months next after the value thereof is fixed.” Gen. Laws 1881, sec. 3, p. 119.

Section s of the Act of April 13, 1883, provides that “any actual settler in good faith upon any land included in this act, who is now and was an actual settler in good faith on the, 1st day of January, 1883, shall have the right, etc., provided, that any actual settler in good faith upon lands appraised, etc., in accordance with the provisions of sections 1 and 3 of the Act of 1881, etc., shall be permitted to purchase.” It is not pretended that he has any right by reason of having improvements tipon the land prior to April 6, 1881. If so, it seems, under

section 3 of that act, he might have had a preferred right to purchase for six months from the date the Act of 1881 took effect, which was April 6,1881. But his right rests primarily upon the fact of being (under the law by virtue of which he asserts title) an actual settler in good faith. Not having brought himself within the provisions of the statute upon which he relies he has no reason, we think, to complain of the judgment in this case. The remaining question then is, has the appellant shown such a compliance with the law of 1883 as would authorize a recovery?

As we have stated, there was no compliance with the law requiring a classification of the land and the filing of a tabulated statement in the office of the surveyor of the county where the land was situated. Nor was there any offer of the land for sale at public outcry at the court house of the county by the person authorized by the board to sell, as provided by

section 8 of the act. In Taylor v. Burke, 66 Texas, 646, it was said that this was a requirement of the law, but the question was not raised in that case and not decided. In Snyder v. Nunn, before cited, it was held that no right vested in a purchaser as an actual settler where the application was made in the absence of an appraisement. In Ramsey v. Medlin, 55 Texas, 248, also an appraisement was held to be absolutely necessary to entitle a purchaser to recover. We think the rule applies with equal reason to the requirement of the law that the classification and tabulated statement shall be made and filed.

The statute prescribes with particularity the facts which must exist, as said in Snyder v. Nunn, 66 Texas, 260, before the applicant shall- be entitled to the land. And though payments upon their respective applications were made by appellant and appellee and were accepted, these have been held as insufficient to warrant the presumption that an appraisement had been made where the evidence was silent upon that point.

In the case under consideration the uncontroverted proof was that no classification of the land and tabulated statement had been made and filed in Tom Green County, under the Act of 1883 or at any other time. So too there was undisputed testimony that the agent authorized by the board to sell did not, as required by

section 8 of that act, sell or offer to sell at public outcry this land. That which the law had prescribed as absolutely essential to be done to vest any right to the land in appellant, was not done. And we therefore think he failed to establish his right to recover, and we are of opinion .that the judgment is correct as between the parties to this suit. But we do not wish to be understood as saying that the appellee McCarty is precluded from showing that he is entitled to the land as a settler in good faith under the Act of April 12, 1883. If he can establish this fact he would be entitled to recover.

The judgment as between the parties in this case should be affirmed. Affirmed. Adopted December 4, 1888. Motion for rehearing was filed by counsel for appellant. The motion was transferred to Galveston, then to Austin, and was overruled May 28, 1889. John C. Townes and A. S. Fisher, for motion.