J. R. Gracey v. A. W. Hendrix, 93 Tex. 26

BROWN, Associate Justice. Under the Act of 1887, survey number 104 of school land in Hall County was classified as dry agricultural land and valued at $2 per acre, at which price it was put upon the market, and remained on the market under that classification and price until the 23d day of August, 1897, except during the time that A. W. Hendrix claimed it under a purchase from the State, which was forfeited.for nonpayment of the interest of 1893. On the 20th day of August, 1897, A. W. Hendrix was and had been for several years an actual settler upon the

section of land, and on that day made an application to the Commissioner of the General Land Office to purchase it at the price of $1.50 per acre, which was filed in the General Land Office the next day. He remitted to the Treasurer of the State $24, the one-fortieth part of the whole purchase price, and he sent his obligation to the Commissioner of the General Land Office for $936, the remainder of the purchase price. If, however, he was entitled to purchase it at $1.50 per acre, his application, remittance, and obligation were in conformity with the statute.

If the valuation of $2 per acre was then in force, he did not comply with the law. • J. R. Gracey filed in the General Land Office his application to purchase the east half of

section 104 at $1.50 per acre and complied with the statute, if the price of $1.50 per acre had been the valuation placed upon the land at the time. Gracey was not an actual settler at the time he made the application, but subsequently moved upon the east half of the land and became an actual settler before the land was awarded to him by the Commissioner of the General Land Office. On the 23d day of August, 1897, the

section of land was reclassified as dry grazing land and valued at $1.50 per acre. On September 10, 1897, the Commissioner of the General Land Office sold the east half to Gracey at $1.50 per acre and refused the application of A. W. Hendrix. Hendrix brought suit against Gracey for the entire

section of land, who disclaimed as to the west half but claimed the east half for himself. The trial was had before the judge without a jury, who gave judgment in favor of Gracey, which judgment the Court' of Civil Appeals reversed and rendered it in favor of A. W. Hendrix for the east half „of the land. The question in the case is, did Hendrix, by his application, remittance of a part of the price, and execution of his obligation for the balance, acquire a right to purchase

section 104? If he did, the judgment of the Court of Civil Appeals is right, because, in that event, Gracey could not have subsequently acquired any right to the east half of the survey. If, however, Hendrix did not acquire a right to purchase the land by his application and proceedings connected therewith, then the judgment of the District Court was correct, although 'Gracey may not have acquired any right himself. Hendrix must recover in this suit upon the strength of his own title and not because Gracey has none.

Article 4218j, Revised Civil Statutes, prescribes the mode of procedure by which an actual settler upon the public free school land may acquire a right thereto, as follows: “Any person desiring to purchase land in accordance with the provisions of this

chapter shall forward his application to the Commissioner, describing the land sought to be purchased, which application shall be accompanied with the affidavit of the applicant, in effect that he desires to purchase the land for a home and has in good faith settled thereon, except where otherwise provided herein, and he shall also swear that he is not- acting in collusion with others for the purpose of buying the land for any other person or corporation, and that no other person or corporation is interested in the purchase thereof. * * * The purchaser shall transmit to the Treasurer of the State one-fortieth of the aggregate purchase money for the particular tract of land and send to the Commissioner his obligation to the State, duly executed, binding the purchaser to pay the State on the first day of November of each year thereafter, until the whole purchase money is paid, one-fortieth of the aggregate price, with interest at the rate of three per cent per annum on the whole unpaid purchase money, which interest shall also be payable on the first day of November of each year; and upon receipt of one-fortieth of the purchase money by the Treasurer and the affidavit and obligation aforesaid by the Commissioner, the sale shall be deemed and held effective from the date the affidavit and obligation are filed in the General Land Office.” To comply with the requirements of the law, Hendfix must have made the affidavit and presented the application required by the statute and must have forwarded one-fortieth part of the purchase money for the whole

section and his obligation for the remaining portion of the purchase price, as above stated. The land was valued at the time the application, affidavit, and obligation were filed and the money paid in, at the price of $2 per acre, which would make an aggregate of $1280 for the section, the one-fortieth part of which would be $32, which he was required to have remitted to the Treasurer of the State, but he sent only $24, being $8 less than the amount required by law.

The remainder of the price to be secured by the obligation would have amounted to $1248, but Hendrix gave his obligation only for $936, which was $312 less than was required by law. He did not comply with the law, and the sale did not become effective and confer a right upon him at the time that the papers were received by the Commissioner of the General Land Office.

It is claimed that the Act of 1897, “relating to leasing and selling the free school and asylum lands,” (chapter 129, General Laws, 1897, page 184), had the effect to repeal or annul the former classification and valuation placed upon the land and to put it on the market for sale at $1.50 per acre.

After empowering the Commissioner to classify any lands not before classified, the act provides: “He may also reclassify any lands heretofore erroneously classified, upon the official certificate of the commissioners court of the county in which said land is situated or the county to which said land is attached for judicial purposes certifying what the proper classification should be. * * * When any portion of said land has been classified to the satisfaction of the Commissioner of the General Land Office under the provisions of this

chapter or former laws, said land shall be subject to sale. * * * All agricultural lands belonging to the public free school and the several asylum funds shall be sold at not less than $1.50 per acre; and all grazing lands shall be sold at not less than $1 per acre.” This land having been previously classified and valued, the Commissioner could not have reclassified it except upon the certificate of the commissioners court of that county, and it was upon the market for sale upon the original classification and at the price previously fixed when Hendrix’s application was filed in the General Land Office, unless that act had the effect to reduce the price of lands previously classified to the minimum stated therein.

The law does not say that the lands of the given class shall not be sold for a price exceeding that named in the act, but prescribes that it shall not be sold for less than the sum stated per acre. It did not affect the valuations previously made for more than $1.50 per acre. The payment and obligation of Hendrix were not a compliance with the law at the time they were filed and presented to the officials of the State, and did not secure to him the right to purchase the land.

The honorable Court of Civil Appeals rests its judgment upon the proposition that the application, being on file, became effective when the classification and valuation were changed so as to make it a compliance with the conditions as thus changed. In this we think that honorable court committed error. The statute had prescribed the terms upon which the settlers might acquire a right without the concurrence of any official and had prescribed the standard of compliance to be the requirements of the law on the day that the papers were filed in the General Land Office.

The language of the law is so explicit as to preclude construction and courts have no authority to change its terms. The obligation of Hendrix not being in compliance with the law, did not bind him, and he might have abandoned his application at any time. The right to the land did not, by the law, attach upon any day subsequent to that on which the papers were filed with the Commissioner of the General Land Office, because the law is not so written, and, if compliance was not had on that day, what was done subsequently would not inure to the benefit of a previously filed void application. Busk v.

Lowrie, 86 Texas, 128; McKinney v. Grassmeyer, 51 Texas, 376; Wright v. Hawkins, 28 Texas, 470. Hendrix, the plaintiff in the court below, acquired no right to the

section of land, and was therefore not entitled to recover, although the defendant, Graeey, may not have acquired any legal right himself, upon which it is not necessary for us to pass. It is therefore ordered that the judgment of the Court of Civil Appeals be reversed and that the judgment of the District Court be affirmed. Reversed and judgment of District Court affirmed.