W. J. McGee and E. T. Bridges v. J. A. Corbin, 96 Tex. 35

WILLIAMS, Associate Justice. Corbin sued McGee and Bridges to recover the land in controversy. Each of the three parties asserted title by purchase from the State and the judgment of the District Court was in favor of McGee. Both Corbin and Bridges appealed, and the Court of Civil Appeals reversed the judgment of the District Court and adjudged the land to Corbin. McGee and Bridges have prosecuted separate writs of error to this court. The land in controversy is

section 49. Hone of the parties settled upon it or claimed it as a home section, but each sought to purchase it as additional land, and the title of each to it depends upon his right to the other

section which he settled upon and sought to purchase for a home. The following are the facts upon which their respective rights rest: Under the Acts of 1895 and 1897 all of the lands involved were classified, appraised, and placed upon the market for sale as belonging to the common school fund.

On the 3d day of January, 1900, the Commissioner of the General Land Office executed two leases, one to Jackson and the other to Loftin, both running for the same time, viz., “for a term of two years from the 26th day of August, 1899,” and being in the same form and upon the same terms and conditions, and each embracing a number of sections. Bach of the lessees inclosed the sections leased by him in a pasture with a wire fence;

Section 49 in controversy and

section 39 claimed by Bridges as his home

section were in the Jackson pasture, while

section 7, upon which both Corbin and McGee settled and which each claims as his home section, was in the adjoining Loftin pasture. On the 25th day of August, 1901, both Corbin and McGee entered Loftin’s pasture, without his consent, and actually settled upon

section 7, which settlements were made and have since been maintained in good faith, unless the fact that they began before the expiration of Loftin’s lease deprives them of that quality. Jackson had, on the 6th day of June, 1901, assigned his leasehold to Bridges, and on the 25th day of June, 1901, Bridges in good faith made and has since kept up the settlement in good faith upon

section 39. On August 25, 1901, about eighty persons were at the county seat of Schleicher County for the purpose of making applications for the purchase of school lands, it being supposed that about one hundred and thirty-two sections would come upon the market for sale at the expiration of that day. The county clerk made it known that he would open his office at 12 o’clock, midnight, for the purpose of receiving applications, and at that time was in his office for the stated purpose. McGee had prepared his applications and made the necessary affidavits at 11 o’clock p. m.

He and twenty-one other applicants had engaged an attorney to file the applications, and when the office was opened this attorney worked his way through the crowd to the clerk’s desk, and at 12 o’clock, 1 minute and- 20 seconds presented the bundle of applications to the clerk with the direction that he “file these applications.” Bach of the twenty-two applicants had separate applications for a home

section and for three additional sections which were pinned together; each set of applications was placed in the bundle, thus containing eighty-eight applications, and on the top was the amount of money necessary to make the first payment for all. The clerk received the bundle, counted the money, completing this at 12:15 a. m., and then indorsed, as of that time, on the application on the top of the package, his file mark. The applications of Bridges and Corbin were presented within a few minutes after those above mentioned, and were received by the clerk after he had completed counting the money as stated.

Within a day or two the clerk indorsed his file mark upon each application in the bundle, giving the time of filing as that when the bundle was marked filed. In some respects the manner of the presentation and filing of the applications of Corbin and Bridges differed from that pursued by McGee and those acting with him, but the view taken of the objections to the McGee claim, which was the first presented and filed, makes further statement unnecessary.

Corbin and Bridges also made new applications on the morning of the 27th of August, Corbin’s being the first of these; and Bridges made a third application August 30th. In due time all of the applications were forwarded to the Land Office and the Commissioner awarded

section 7, upon which Corbin and McGee had settled, and

section 49, in controversy, to the latter; and awarded to some person, whose name the record does not disclose,

section 39, upon which Bridges had settled. The first question which will be considered is, whether or not, at the time McGee filed his applications, the leases to Jackson and Loftin had expired so as to leave the land subject to be purchased; and this depends upon whether or not the 26th day of August, 1901, is to be included in the term of the leases. Since McGee’s home

section was embraced in one lease and

section 49 in the other, both leases must have expired when he applied to purchase to give effect to his applications from the time of filing. Upon the question just stated, we said in Hazlewood v. Rogan, 95 Texas, 306. “The weight of authority seems to be that in construing a lease which is to run ‘from’ a day for a certain number of days, months, or years, ordinarily the day from which it is to run is to be excluded.

On the other hand, it is also held that the intent of the parties must govern, and that the intent to include the day may be inferred from the context or even from the circumstances of the particular case; and it may be that had it been shown in this case that the lease to Schreiner was in the form in general use in the Land Office, and that the uniform and Well known construction in that office was to include the day mentioned for the beginning of the term, such construction should govern.” The Court of Civil Appeals thought that the fact that both the Commissioner of the General Land Office and Bridges, the assignee of the Jackson lease, treated it as expiring at midnight of the 25th, authorized the conclusion that this lease did so expire; but that, ns no such action on the part of Loftin appeared, the same conclusion was not warranted as to his lease.

We agree to the first proposition, but not to the latter as it affects this case. Eo action of Loftin appears, but the Commissioner, in accepting McGee’s' application, treated the two leases as having expired at the sanie time. They were alike in all respects and there could be no just reason for his holding that they terminated at different times.

A proper discharge of his duties and a due respect for the rights of parties dealing with the State would require him, in such matters, to treat all alike, and we think it should be assumed, in the absence of anything to the contrary, that in allowing these sales he acted upon a construction applying uniformly to all such leases. Further reflection has confirmed us in the view intimated in the above quotation, that such a construction by him should be treated as entering into the lease and determining its duration.

The law leaves it to the Commissioner and lessees to fix the term for which leases are to run as they may agree, and when, in the management of so extensive a business running through many years, this officer has adopted a form of lease and by a construction fixed its duration, persons applying to lease school lands should be held to have assented. This view is essential to the proper and orderly management of the business of selling. and leasing these lands and to the repose of titles bought under such rulings.

As shown above, there is no unbending rule of law upon the subject constraining the parties to such contracts, and therefore no reason why a court must adopt a rule as to these leases different from that established and acted on in the department intrusted with leasing and selling. It is of little importance to lessees whether the day of the date of the lease or its anniversary be included, but it is of vast importance to those buying lands previously embraced in leases that the rulings under which they have acquired their titles be not unnecessarily disturbed.

Besides all this, it can not be denied that, consistently with all that appears in this record, a state of facts may have existed under which the Commissioner could properly have held that the Loftin lease as well as that of Jackson was at an end after midnight of August 25th. The recognition of McGee’s purchase by the Commissioner affirms as much; and the presumption being in favor of the correctness of the action of that officer, it was incumbent upon the parties attacking it to show the facts necessary to establish its illegality, and this has not been done. Boaz v. Powell, ante, p. 3.

It is further objected to McGee’s title that his applications were not properly filed when they were merely presented to the clerk, in the manner stated, in a bundle with many others. The statute has prescribed no rule except that applications shall be filed in the office of the clerk and that officer shall indorse upon them the hour of filing. The manner in which claims are to be brought to the attention of the clerk so as to secure his recognition and action is a matter of detail which must be left largely to him.

In this instance he did receive the applications when presented and recognized them as filed before the others, and the evidence shows no good cause for the court to reverse his action and that of the Commissioner, both of which must be presumed to have been fair and regular until the contrary appears. The complaining parties have failed to show any injustice to themselves in this particular. Another objection is that McGee’s affidavit was made before the land came upon the market and can not be taken as an oath to the existence of the necessary facts at the time the application was filed.

The initiation of such a claim is not the making of the affidavit, but the. filing of the application accompanied by the affidavit. The affidavit is an essential part of the application and is intended to show the existence of the facts sworn to at the time the claim is begun. But an oath to the existence of such facts as the affidavit must state at 11 o’clock at night is substantially equivalent to an oath of their existence when the affidavit is presented just after 12 o’clock, for the reason that no change could reasonably be supposed to have taken place in so short an interval.

In so strict a proceeding as an attachment, wherein the existence of certain facts must be sworn to when the writ is applied for, no such rigid rule as that contended for is enforced, but an affidavit is held sufficient if made so shortly before the suing out of the writ as not to “authorize the inference that the facts stated had ceased to exist or as not to cast suspicion on the fairness and integrity of the proceedings.” Campbell v. Wilson, 6 Texas, 395; Wright v. Ragland, 18 Texas, 293. Here, not only can no such inference be indulged, but it is an admitted fact that no change had occurred.

The fact that the lease had not expired when the affidavit was sworn to is unimportant. The affidavit performed no office until used with the application and, being equivalent to one then made, was sufficient. But it is said that McGee could not be a settler in good faith on his home

section because, at the time he entered, it was under lease to Loftin, upon whose rights a trespass was committed by such entry. The question is not as to the character of the original entry but as to his status when he applied to purchase. At that time all right of Loftin had ceased, the State had the right to sell, McGee was on the land intending to make his home there, and possessed all the qualifications requisite under the statute to entitle him to buy. The inception of his settlement was immaterial. Cravens v. Brooks, 17 Texas, 268.

It has often been held by the Supreme Court of the United States and other courts that a right to pre-empt land, as against another, can not be obtained by a forcible entry upon" the actual possession of such other, who is in possession and claiming the land, although it turn out to be public land of the United States. Atherton v. Fowler, 96 U. S., 513. It is unnecessary that we undertake to further state the extent of that doctrine, for it clearly has no application here.

A distinct limit was set by law to such possession as Loftin had under his lease and all his rights ceased before any effort was made to purchase. Up impediment was then in the way of a sale to one actually settled upon the land, as was McGee, and the title now asserted by him conflicts with no right or claim of Loftin. It is not even made to appear that force of any character was used or that Loftin’s, enjoyment of his leasehold was in any way impaired.

Having decided all the objections raised to McGee’s title in his favor and his claim being first in time, we must hold that he was entitled to the judgment which the District Court gave him. The judgment of the Court of Civil Appeals will therefore be reversed and that of the District Court affirmed. Judgment of the Court of Civil Appeals reversed. Judgment of the District Court affirmed.