J. H. and Sarah Anderson v. R. B. Neighbors, 94 Tex. 236

BROWN, Associate Justice. The Court of Civil Appeals for the Fourth District has certified to this court the following statement and question: “Appellee instituted this suit in the form of an. action in trespass to try title against Mrs. Anderson and her husband, and judgment was rendered in favor of appellee. “It was in proof that in 1895 Mrs. Anderson, a married woman, applied for and purchased from the Land Commissioner the land in controversy, and made the payment required of her at that time, and gave her written obligation for the balance. In 1898, Mrs.

Anderson having made default in payment of interest for 1895, 1896, and 1897, the sale was declared forfeited by the Commissioner of the General Land Office and the land was again appraised and placed upon the market. On February 2, 1899, R. B. Neighbors applied to the Land Office to lease said land at 3 cents per acre and paid in advance for the first year’s rent. On the 14th day of February, 1899, the lease was awarded to Neighbors, but the contract was not executed until March 4th, and Was recorded in Pecos County, where the land is situated, on March 14, 1899. Mrs.

Anderson and her husband have been in possession of the land since her purchase in 1895, and they have made valuable improvements on the land and have occupied it as a homestead up to the time of the trial. On February 28, 1899, while the application of Neighbors for lease of the land was pending in the Land Office, and before the contract of lease was executed and recorded in Pecos County, Mrs.

Anderson wrote to the Land Commissioner, applying for reinstatement, and informing him that she and her husband had made valuable improvements on the land and were using it as a homestead, and requesting him to send amount due in order that she might pay it. This letter was received on March 4th, before the lease was executed. The Land Commissioner on May 18, 1899, notified Neighbors that his lease was suspended because it was made under a misapprehension of the facts, the land at the time of the lease being not only in demand for purchase, and actual settlement, but then actually occupied as a homestead by Mrs.

Anderson and her husband, and that correspondence was actually going on between the Land Office and Mrs. Anderson at the time of the lease, and the State Treasurer showed that reinstatement of Mrs. Anderson’s claim in accordance with advices from the Land Office was actually in progress at the time of award to Neighbors. On June. 27, 1899, the Land Commissioner wrote Neighbors, informing him that on the very day that his application to lease the land was filed Mrs.

Anderson was making an effort to pay her indebtedness to the State on the land, and that when she was informed of the amount due, she had sent it in, but the money was sent after the lease had been made. The communication to Neighbors showed that the lease had been made to him through the ignorance or mistake of a clerk in the Land Office. On August 12, 1899, the lease of Neighbors was canceled and Mrs. Anderson’s purchase reinstated. “Question: Under the foregoing facts, has Mrs. Anderson'lost her right to the land?” In the year 1897 the Legislature passed

an act regulating the sale and lease of the public free school lands, the fifth

section of which appears in Batts’ digest of the laws as

article 4218f, which provides for reinstating forfeited contracts of purchase in the following terms: “In any cases where lands have been forfeited to the State for non-payment of interest, the purchasers or their vendees may have their claims reinstated on their written request, by paying into the treasury the full amount of interest due on such claim up to the date of reinstatement; provided, that no rights of third persons may have intervened.

In all such cases, the original obligations and penalties shall thereby become as binding as if no forfeiture had ever occurred.” Many persons had forfeited their purchases of the public school lands by the failure to pay interest, and the Legislature, by enacting the foregoing clause of the statute, provided the means by which such persons might be relieved ’ of the consequences of the forfeiture, and the rights both of the State and of such forfeiting purchasers be reinstated as they were before.

No formal application was necessary, because the obligation of the purchaser being on file with the officers of the State, it was only necessary for such person to signify his wish to reinstate his contract with the State and to resume his obligation to pay for the land. This was a remedial statute and entitled to be construed so as to give the greatest latitude the language admits of in the consummation of the purposes expressed in the act. Suth. on Stat. Cons., sec. 430; Sedgwick on Stat. Cons., p. 309; Turtle v. Hartwell, 6 T. R., 429; White v. Carpenter, 2 Paige Ch. Rep., 229. In the case of Turtle v.

Hartwell, above cited, Lord Kenyon said: “In expounding remedial laws, it is a settled rule of construction to extend the remedy as far as the words will, admit.” In the case of White v.

Carpenter, before cited, the chancellor, in passing upon a statute concerning trust estates, said: “My judgment must be borne down by the force and weight of authority before I can attach to statute provisions a harsher operation or more unbending severity than to common law principles; or deny to legislative enactments the liberal, benign, and equitable construction which will give to them the attributes of a nursing mother, equally with the rules and principles of the common law.” There can be no doubt that Mrs.

Anderson comes within the meaning of the law and that her contract was preserved, unless the rights of some third person had so intervened as to debar her of the privilege granted. The Legislature, by the proviso “that no rights of third persons may have intervened,” intended to expressly give the protection which the Constitution afforded to vested rights.

Section 17 of the same act of the Legislature of 1897, which appears in Batts’ Digest as

article 4218r, authorized the leasing of the public school lands under certain circumstances and prescribed rules to govern the Commissioner in making such leases. The last sentence in that

article reads thus: “All bids and offers to lease may be rejected by him [the Commissioner] prior to signing the lease contract, for fraud or collusion, or other good and sufficient cause.” At the time Mrs. Anderson’s request to be allowed to redeem the land was received in the office, the lease had not been signed and delivered by the Commissioner.

Under the provision last quoted from the statute, the Commissioner of the General Land Office was invested with the discretion to withhold the lease at any time before signing and delivering the same for any cause which he might deem sufficient, and certainly the notice by Mrs. Anderson and the fact that she was occupying the property as a home would have-been ample cause for refusing to sign the lease. It follows, then, that at the time Mrs.

Anderson’s request was received, Neighbors had not acquired such a vested right as would have entitled him to enforce the lease contract by a proceeding in the court, for which reason it must be held that the rights of a third person had not intervened at the time the request was received. But Mrs. Anderson was required to pay into the treasury the full amount ofynterest due on her claim up to the date of reinstatement, and it is claimed that she should have accompanied her request with the payment of this money in order to acquire a right in preference to the pending bid for a lease.

The language of the law is broad enough to admit the construction that the Legislature intended that the Commissioner, upon receiving notice of the desire on the part of the purchaser to reinstate the forfeited contract, should allow to such applicant a reasonable time within which to ascertain the amount due and to make payment to the treasury.

It was to the interest of the State to have this contract restored, because, by so doing, it would receive the past due interest which otherwise would be lost to the school fund, and secondly, it would secure an actual settler upon its public school land in conformity to its general policy in selling those lands.

A construction which would deny such indulgence to the party wishing to redeem would be more restricted than the language justifies, and, instead oí fulfilling the benign purposes oí the Legislature, the existing evil would go unremedied, the hardships would not be relieved against, and the general policy of the State would he reversed. We believe that our

interpretation is in harmony with the policy of the State and fully justified by the terms in which the law is expressed. We answer the question, that Mrs. Anderson’s right to the land had not been lost under the circumstances stated in this case, and that the lease contract, executed after the written request made by her, conferred no right upon the lessee.