C. O. Nesting v. J. J. Terrell, Commissioner, 97 Tex. 18

GAINES, Chief Justice. This is a petition for a writ of mandamus against the Commissioner of the General Land Office. Stripped of irrelevant matters the facts alleged in the petition are as follows: One Bobert Thompson on September 15, 1898, became the owner of a pre-emption survey in the name of Weaver, and thereupon made his home and continued to reside upon the tract until April 21,

Section 6 of the John H. Gibson surveys was originally a part of the free school lands of the State and the southeast half thereof was on the 12th day of August, 1899, unsold and was upon the market for sale under the law. The

section is situate within a radius of five miles of Thompson’s home tract. On the day last named, he made application to purchase the southeast half of the

section and in all respects complied with the law, save that in his application he made affidavit that he resided upon the northwest half of the

section instead of saying that his home was upon the Weaver survey. The land applied for was awarded to him by the Commissioner of the General Land Office. As a matter of fact Thompson did not reside upon the northwest half of

section 6, but upon the Weaver tract, and the statement in his application to purchase that he resided upon the former tract was inadvertently made. On January 20, 1902, Thompson for a valuable consideration executed a deed to relator to the land in controversy as well as to other lands not involved in this suit. For the purpose of perfecting the title to the half

section in controversy, on the 15th day of August, 1902, Thompson made his proof of occupancy of three years of his home tract—the Weaver survey—and upon the objection of the Commissioner that his application to purchase the southeast half of

section 6 was based upon his occupancy and residence upon the northwest half of the same section, he filed his affidavit showing that the northwest half of

section 6 was inserted therein by mistake, and that, at the time of his application, he in fact resided upon the Weaver tract and intended to state such as the fact. Nevertheless the Commissioner canceled Thompson’s purchase upon two grounds, (1) on that of the mistake in the application, and (2) because the relator did not become an actual settler upon the land when he bought from Thompson.

The case is submitted to us upon a demurrer to the petition, and an answer alleging merely in effect that the uniform practice in the land office had been in cases like this to hold that a sale by an original purchaser to one who does not become an actual settler upon the land so sold had the. effect to forfeit the title to the land and to cancel the original purchase. Three questions suggest themselves by the case so made: 1. Can a purchaser of additional school lands, who in naming in his application his home

section has by mistake given the wrong designation, have the application corrected so as to show the true name? 2. Does a sale by a purchaser under

article 4218fff of the Eevised Statutes to one who is not an actual settler forfeit the title to the land so sold ? ' 3. If the original purchase be not forfeited, does the sale to the second purchaser pass the title? In the argument before us, the second was the only question insisted upon; but all of them are necessarily in the case, and must be.passed upon in determining whether the writ of mandamus should be awarded. 1. The statute gives to the owner of land other than school lands the right to purchase school lands lying within a radius of five miles of the land owned by him. Rev. Stats., art.. 4218fff.

But it does not provide the manner in which the Commissioner is to be apprised of the fact of ownership, or of the situation of the lands proposed to be purchased with reference to the land already owned by him.. It would seem, however, that in order to execute the law, the Commissioner should be in some manner advised as to these facts.

But since the statute gives to the owner of the other lands the right to purchase' school lands in proximity thereto, we think, when the owner does so purchase, he acquires the title, and that, at any time before the right of any third party has intervéned, he should, in case the mistake in the description of the land upon which he bases his right to purchase has been inadvertently made, be permitted to show the fact and to correct his application.

Whether a third party might acquire a superior right by applying to purchase before the correction is made is a question not in this case and it is one we do not decide. 2. Counsel for respondent concedes that the point raised by the second question had been ruled against him in the case of Robinson v. Sterrett, 96 Texas, 180, but asks us to reconsider that ruling. We have accordingly considered the matter for the third time and see no good reason for changing our opinion.

Article 4218fff expressly provides a condition for forfeiture which is different from that provided in

article 421851; and, by a well" established rule of construction, we think that no additional grounds of forfeiture should be implied. The mere fact that to permit the second purchaser to buy without settling upon the land does not seem to accord with the general spirit and policy of our laws in relation to the sale of school lands, is not sufficient to justify us in disregarding this rule of construction. We hold, therefore, that the title was not forfeited by the sale from Thompson to the relator, although the relator did not become an actual settler upon the land. 3.

In regard to the third point we have, with much difficulty, reached the conclusion that Thompson had the right to sell to one who was not a settler. It follows, that in our opinion the writ prayed for should be granted, and it is accordingly so ordered.