D. B. Willoughby v. W. A. Townsend, 93 Tex. 80

WILLIAMS, Associate Justice. Under the verdict of the jury and the findings of the Court of Civil Appeals, it must be taken as established that defendant in error, who was plaintiff below, was an actual settler upon the

section of school land for the recovery of which he sued, when he applied to purchase it on January 13, 1897; and that plaintiff in error, defendant below, was not such a settler when he applied on January 12, 1897. From this it follows that if defendant in error, in making his application, complied with all of the requirements of the law governing it, he was entitled to the land and therefore had the right to recover it.

It also follows that the act of the Commissioner of the General Land Office, in accepting the application of plaintiff in error and in concluding a contract with him, was ineffectual to prevent such a recovery. But as defendant in error was plaintiff, it was necessary for him, in order to maintain his action, to show such compliance with the law as entitled him to an award of the land at the hands of the Commissioner; and the defect in the title of the plaintiff in error could not help him. Gracy v. Hendrix, ante, p. 26.

The statute in force when the transactions took place required that the application to purchase should be accompanied by the affidavit of the applicant "that he desires to purchase the land for a home and has in good faith settled thereon,” besides other facts not material here. The affidavit which accompanied the application made by defendant in error was in the following language: “I, W. A. Townsend, do solemnly swear that my home is upon aforesaid

section No. 228, certificate 32-246, issued to G. H. & H. R. R. Co. in McCulloch County, purchased under Act of 1895, and that I am a bona fide settler on the same and head of a family, and am now neither assignee or original purchaser, the owner of any other land purchased from the State.

I further swear that I am 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 this purchase save myself, and that my postoffice address is Brady, in McCulloch County, State of Texas.” It is apparent that this does not contain the language prescribed by the statute. Are the words of the affidavit and those of the statute “in effect” the same ?

Unless they are, it can not be held that the applicant complied with the law and plaintiff’s title must fail; for neither the Commissioner nor the courts have power to dispense with so plain a requirement. It may be true that the home of an intending purchaser is upon the land when he makes his affidavit, and at the same time, be true also that he does not desire to purchase it for a home. His application to buy shows that he desires to purchase, but it does not imply that his desire or intent in purchasing is to make his home upon the land.

The difference thus shown between the statement in the affidavit and that required by the statute is rendered material not only by the express language of the law, but by its policy and purpose. These lands are reserved for sale to actual settlers, and not to actual settlers simply,, but to such as settle with the purpose of acquiring a home upon the land. To enforce this policy, the law requires actual residence'upon the land for three years as a condition precedent to the extension of final title.

To prevent evasions of this policy by sales to those who have no purpose of making their homes upon the land, the law requires this affidavit to purge the conscience and show the good faith of the applicant and his intent and pnrp.ose to acquire the land, as the law intends he shall acquire it, — for a home. Nor can it be admitted that the statement that the applicant was a settler in good faith may be properly held to include the other. The law requires the statement of both the settlement in good faith and the desire to purchase for a home.

We can not dispense with one as being included within the other when the Legislature has plainly separated them and exacted both. An affiant may state that he has made a settlement in good faith when his purpose is other than that intended by the law. It was doubtless to prevent this that an express declaration from himself under oath of his desire to purchase for a home was required. T'o dispense with this would permit evasion at a póint where the Legislature intended to forestall it, a precaution doubtless suggested by experience.

It follows that it was the duty of the Commissioner to reject plaintiff’s application, and whether he assigned the proper reason or not is immaterial to this controversy. Since the evidence admitted failed to show a right in plaintiff to recover the land, the judgment in the District Court should have been that he take nothing; and such is the proper judgment for this court to render, unless, hv his cross-assignment of error, defendant in error has shown a reason why the cause should be remanded.

By such assignment it is urged, in substance, that the District Court excluded evidence which, if admitted, would have established plaintiff’s right. The evidence offered and excluded tended to show that on January 4, 1897, prior to the making of the application which we have discussed, which ivas presented January 13, 1897, defendant in error had presented to the Commissioner an application which complied with all of the requirements of the statute, and that it was rejected by that officer because the land was not then properly on the market and open to bidders.

The facts upon which this action was based Avere that the

section had been classified and appraised in 1881 under the law then in force and had been sold in 1882 to one Gilbert. Suit had been brought by the State against him to forfeit his contract for nonpayment of interest, which resulted in a judgment in November, 1895, canceling the sale.

A copy of this decree aahs filed in the General Land Office during December, 1896, and, thereupon, on January 1, 1897, the Commissioner declared the purchase canceled, but did not notify the county clerk of McCulloch County thereof and list the land Avith him for sale until January 7, 1897, after defendant’s application had been filed.

The contention of defendant in error is that upon the annulling of the sale to Gilbert, the land at once reverted to the school fund, and Avas, by operation of laAV, made subject to sale at the former valuation, and that the Commissioner had no poAver to refuse to sell it upon proper application. It is true, as contended, that the Act of 1895 did not require the classification and appraisement of land previously classified and appraised under former laAvs. Laws 24th Leg., p. 63, sec. 3; p. 64, sec. 4. But

section 6 of that act did require the Commissioner to notify the county clerk of the valuation fixed upon each

section of land AAdiich “he [the Commissioner] offers for sale.” It may be true that it Avas not necessary, under this act, for him to repeat such notice as to lands not previously sold Avhere it had been given under former laws. It does not appear that this

section had eArer before been listed with the clerk. However that may be, it had been sold and thereby removed from market so long as the sale to Gilbert stood. How was it to he again offered for sale? The second

section of the Act of 1895 invested the Commissioner “with all the power and authority necessary to carry into effect the provisions of this act” and required him to “adopt such regulations as may be deemed necessary to carry into effect the provisions of this act,” the regulations to be submitted, it is true, to the Governor for approval before adoption or promulgation. The sixth

section required notice, as before stated, to the county clerk of lands offered for sale. The ninth

section provided: “Any owner of land heretofore purchased shall have prior right after this act goes into effect or after the land is again placed upon the marleet to purchase," etc. The language italicized implies that the land is to be again placed upon the market. - The Commissioner is the officer who is to take this-action, and he is required by

section six to do so by giving the notice to the county clerk of each

section which he offers for sale. This probably requires action such as was taken; but whether it does so imperatively or not, the power given in the second

section to the Commissioner is sufficient to enable him to prescribe that course, especially as it is in line with the obvious spirit and -purpose of the law. Such purpose is, doubtless, by placing the list with the county clerk, to give equal opportunity to all persons desiring to settle upon and buy school lands, and this purpose was promoted by the course taken. As defendant in error’s first application was made before the land was open to purchase, the Commissioner properly rejected it, and the admission of it in evidence could not have helped the case.

The judgments of the District Court and the Court of Civil Appeals will therefore be reversed, and judgment will be here rendered that-plaintiff below take nothing, etc. Reversed and rendered.