Hazelwood v. Rogan, Commissioner , 95 Tex. 295 ( 1902 )

This is a petition for the writ of mandamus to compel the respondent, the Commissioner of the General Land Office, to reinstate the relator as purchaser of certain sections of school lands lying in the county of Kimble and described as sections 65, 83, 85, and 101, in the name of the Galveston, Harrisburg San Antonio Railway Company. W.R. Nichols and Thomas Nichols, each of whom was asserting and still asserts an adverse claim to certain of the sections in controversy, were made parties defendant, and for the sake of convenience will be so styled during the course of this opinion.

The allegations of the amended petition show the facts hereinafter stated, but we set them out in chronological order. On the 26th day of August, 1899, Charles Schreiner made application to the Commissioner of the General Land Office to lease ten surveys of school lands including those in controversy, and on the 22d day of November next thereafter the Commissioner accepted his bid and executed to him a lease "for a term of two years from the 26th day of August, 1899." On the 20th day of November, 1900, Schreiner conveyed his right in section 85 to defendant W.R. Nichols, and on April 8, 1900, also conveyed to the same party his right in section 101. On the day last named, he also conveyed to Thomas Nichols his right in section 65. On the 26th day of August, 1901, the relator, being an actual settler upon and a purchaser of 160 acres of school lands, filed successively with the county clerk of Kimble County separate applications to purchase the respective surveys in controversy, complying in all respects with the law. That for section 65 was filed at 7 a.m., that for section 101 at 7:01 a.m., that for section 85 at 7:02 a.m., and that for section 83 at 7:03 a.m. Each of the sections so applied for were within a radius of five miles of the applicant's home tract. On the same day, defendant W.R. Nichols filed his three separate applications to purchase three of the sections; section 85 at 7:12 a.m., section 83 at 7:14 a.m., and section 65 at 8:05 a.m. In conformity to the statute, the clerk forwarded all these applications, with the respective obligations for purchase money, to the Commissioner of the General Land Office, and also the cash installments of purchase money to the State Treasurer. On the 3d day of September next thereafter, the applications of the relator were approved by the Commissioner and on the 20th day of the same month the lands were awarded to him, but on the 30th the award was canceled upon the ground that the statute allowed him to purchase three sections only in addition to his home purchase. According to the allegation in the body of the petition, on the 9th of September, 1901, the defendant Thomas Nichols filed with the county clerk an application to purchase section 63 and made first payment, which were duly forwarded to the Commissioner and State Treasurer respectively. But a certified copy of the application is filed as an exhibit to the petition, and it appears clearly therefrom that the application was filed on the 9th day of October. The acceptance of the applications of the relator was canceled by the Commissioner solely on the ground that he applied to purchase four surveys in addition to his homestead survey (already purchased) and that he was entitled to purchase but three. The land already purchased by relator and upon which he resided as an actual settler contained only 160 acres and section 65 embraced only 456 acres and a fraction of an acre. Hence his claim of right to purchase the four sections applied for, — all, together with his home tract, containing less than 2560 acres, or four sections of 640 acres each.

The answer of the respondent, the Commissioner of the General Land Office, and that of the defendant are practically demurrers to the petition. The respondent, however, concedes the legality of relator's purchase, provided he was entitled, as claimed by him, to purchase four additional sections, — so as to make up a complement of 2560 acres or four full sections in all. The point is made both by respondent and by defendants, that the writ should not issue because the relator has a plain, adequate, and complete remedy at law.

Defendants also contend that the relator's applications are invalid for the reasons, (1) that they were filed on the day before Schreiner's lease expired; (2) that the defendants, as assignees of the lease of Schreiner, had, for the period of sixty days after the expiration of the term, a prior right to purchase the sections respectively claimed by them; and (3) that the relator in no event had the right to purchase section 85, for the reason that it was a leased section and had upon it at the expiration of the term improvements of the value of $200.

If the plaintiff has an adequate legal remedy without resort to the writ of mandamus, he is not entitled to maintain this suit, however just his claim. If no legal obstacle to the purchase of the lands existed at the time he filed his application with the county clerk, by complying with the terms of the statute for such purchase, he acquired a title sufficient to enable him to maintain an action of trespass to try title against all adverse claimants and to have his rights adjudicated as between him and them. Such a suit, although prosecuted to a successful issue by him, would not restore him to his position as a recognized and accepted purchaser on the records of the General Land Office, nor upon the books of the treasury department. If a lawful purchaser, he has the right to make his annual payments upon his obligation and to have a credit therefor. He may ultimately have the right to have patents issued to him for the lands. Under the statute, a purchaser of school lands may sell to another actual settler and may have his vendee's obligation substituted for his own. Clearly the fact of the cancelation of the award as a purchaser of the land made in his favor and the rejection of his application would so cloud his title as to operate to his injury in a sale of the property. The disadvantage of his position is obvious and it is evident that a successful suit against the adverse claimants only would not afford an adequate and complete remedy for the wrong. We therefore conclude that the relator is entitled to maintain his suit, and that if he has established his right he is entitled to the writ of mandamus for which he has prayed.

Having reached the conclusion that the relator, if a purchaser, has a right to have a writ of mandamus issued in order to compel his reinstatement as such upon the records in the Land Office, we will next inquire whether the defendants, as assignees of the lease of Schreiner, had a prior right for sixty days to purchase the sections the leases to which were respectively assigned to them. This right is claimed by virtue of section 6 of the Act of April 19, 1901, entitled "An act relating to the sale and lease of the public free school and asylum lands and to repeal all laws and parts of laws in conflict therewith." So much of that section as is pertinent to the inquiry reads as follows: "Any lessee shall have sixty days prior right to purchase lands as an actual settler at expiration of his lease." Laws 1901, p. 296. The question is, does the word "lessee" mean the original lessee only, or does it include assignees of the lease. We are of the opinion that the Legislature intended to confer the right upon the lessees only and not upon those to whom the lease might be assigned. The statutes which provide for sales of the free school and asylum lands to actual settlers also provide for the sale by a purchaser to a subsequent vendee under certain conditions and for the substitution of the latter to the rights and obligations of the original purchaser. It is not so with the act under consideration, so far as it relates to lessees of such lands, nor with any previous statute upon the subject, so far as we are aware. It would seem, therefore, that although an assignment of the lease is not expressly prohibited, such assignment was not in contemplation of the Legislature when it passed the act, and that the privilege was intended to be conferred upon original lessees only. Being a thing of value to the lessee, a prior right to purchase, even for a short time after the end of his term, tended to aid in securing leases of the lands. Hence it was to the interest of the school fund to grant the privilege to the original lessee as an inducement to a lease. The right being fixed by the lease, the school fund had no interest in conferring such privilege upon a sublessee or an assignee of the lease. To have done so would have been merely to enable the original lessee, shortly before the expiration of his term, to parcel out his holdings by assignments to third parties and thereby to confer upon them a privilege to the detriment of others equally meritorious who might desire to settle upon and purchase the lands. In the absence of some language in the statute directly indicating such a purpose, we would be loath to hold that it was intended to grant such a power. In the Act of February 23, 1900, in relation to the unsurveyed lands of the State which were by that act made a part of the school fund, a preference right to purchase was given, among other classes, "to all leaseholders of unsurveyed lands to the amount of four sections or less, who were lessees of such lands from the State of Texas on January 1, 1900, either directly or assignee of the original lessee." Laws 1900, p. 33. From this it would seem that when the Legislature desired to confer a right upon the assignees of a lessee, they were expressly mentioned.

We come then to the question, was the relator precluded from purchasing section 85 by reason of the fact that there were improvements on it of the value of $200? Section 5 of the act last cited defines the absolute lease district and the rights and liabilities of lessees within such district. It contains the following provision: "And lands situated in the absolute lease district which may be leased shall not be sold during the term of the lease, except as provided herein. On the expiration of any lease in the absolute lease district, the lands shall remain subject to sale for a period of sixty days, except where there are improvements on a section of the value of two hundred dollars or more." Laws 1901, p. 295. The same section contains also the following provision: "On the expiration of his lease or its termination under the provisions of law, or by a final judgment of any court of competent jurisdiction, the lessee shall have the right for the period of sixty days to remove any or all improvements he shall have placed upon the leased premises." Id., p. 296. Let us compare the corresponding provision in section 4 of the act, which section relates to leases not within the absolute lease district; that is to say, in the district in which the lands could only be leased subject to sale to actual settlers. That provision is as follows: "All lands which may be leased shall be subject to sale at any time except where otherwise provided herein. * * * Any section or part of a section which may be leased shall not be sold except to the lessee, nor shall the lessee be disturbed in his possession thereof during the term of his lease when he has placed on such section or part of a section improvements to the value of two hundred dollars." Id., p. 295. It is thus seen that the right of the lessee, where his lease was made subject to a right to sale to an actual settler before the expiration of the term, was, by making improvements upon a section of the value of $200, to take it out of the rule and to make his lease absolute to such section. In the absolute lease district, as we have seen, he had, at the end of his term, a priority in the right of purchase and sixty days were allowed him for this purpose. But the purpose of the provision first quoted from section 5 was not to give a prior right to purchase a section when it had $200 worth of improvements upon it, but merely to make an exception to the rule which required, when an absolute lease had been made, that for sixty days after its termination the lands should be open to sale and should not be subject to be again leased during that period. Where a section had improvements of the value of $200 upon it, the lessee was not required to await sixty days before leasing it again, as was the case of a section without improvements of that value, but was at liberty to apply at once for a lease of such section. Any other reasonable construction would take an improved section off the market for sale altogether, — a result contrary to the entire spirit and policy of our legislation upon the subject of the school and asylum lands, and one evidently not contemplated by the Legislature which passed the act. Conceding, then, that the original lessee, although he had assigned, had the privilege of making a new lease within sixty days from the end of his term, as we construe the provision, it did not give him an exclusive right. It was subject to lease or sale, and the applicant, whether as purchaser or lessee, who made the first application would have the prior right. Whether it was subject to lease by anyone other than the former lessee during the sixty days is a question not before us. It would seem, however, that since the exception is made by reason of the improvements, the privilege was intended to be granted to him only by whom the improvements were made. Besides, in another part of section 5, it is provided, as to sections without improvements, that in case they are not purchased within sixty days after the end of the term, the lessee shall have for thirty days a prior right to re-lease.

This brings us to the most difficult question in the case. It is contended that on the 26th of August, 1901, the lease had not expired and that therefore the applications of relator to purchase were premature and all proceedings thereunder void. This contention is based upon the proposition that since the lease was to run "for a term of two years from the 26th of August, 1899," it did not expire until the last moment of the 26th of August, 1901. 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. But in the view we take of the case, we do not find it necessary to decide the question. Let it be conceded for purposes of this opinion that the lease had not expired on the 26th of August, 1901. At all events, it expired at 12 p.m. of the night of that day. The relator's applications could not in the course of business have reached the Land Office and have been acted on until after the termination of the lease. As a matter of fact, they were received and filed in that office on the 3d of September, and the lands were not awarded to him until the 20th of that month. Now, if before the award was made and after the lease had expired another settler had made application to purchase the lands, we incline to think that such application should be held good. Every qualified person desiring to purchase school lands should have an equal chance in the race of diligence after the expiration of the term and after the lands were again upon the market for sale; and it would hardly be competent for anyone to forestall the right of another by filing his application before the lease expired. But the defendant's applications were filed after the relator had filed his and on the same day. Clearly they acquired no right superior to his. Then when the Commissioner of the General Land Office came to act upon relator's applications and to decide whether the lands should be awarded to him or not, there was no one having a better right standing in the way of the award. It seems that according to the Commissioner's construction of the lease, the term was at an end when he awarded the land. But let us admit that he erred in so holding and let us suppose that he considered that the lease was not then terminated. Was it his duty to reject the applications on this ground merely and to require new applications to be filed? Would such a requirement have accomplished anything more than the going through an empty form? He had the relator's obligations, the cash payments had been made, and the applicant had filed his affidavit as required by the law. The Constitution requires the Legislature to provide for the sale of the school lands; and the policy of our legislation has been to promote such sales, and, with a view to populate the unsettled districts of the State, to favor those purchasers who had already settled upon and purchased a section or part of section of the lands, as well as those who seek to acquire the lands for the purpose of making their homes upon them. It comports neither with the spirit nor policy of this legislation to throw around settlers applying to purchase unnecessary and improvident restrictions. We are therefore of the opinion that since the lands had been awarded to the relator before any superior intervening rights had attached, the award should not have been set aside for the mere irregularity in making the application on the day before the lease had expired, if in fact it had not expired.

But was the relator entitled to purchase the four additional surveys for which he applied? Some complication with reference to this question arises from the fact that the Act of April 19, 1901, does not purport to be an amendment of the previous statutes upon the same subject, but in express terms repeals all laws in conflict therewith. It does not expressly confer upon a purchaser of a part of the school lands a right to purchase additional lands. Section 3, however, contains the following language: "The Commissioner of the General Land Office is hereby prohibited from selling to the same party more than four sections of land, and all applications to purchase land shall also disclose the prior lands purchased by the applicant from the State, if any, since the taking effect of this act, and the residence of the applicant at said time, and if it appear therefrom or from the records in the land office that said applicant has already purchased land aggregating four sections since the taking effect of this act, his application shall be rejected; provided, this shall not apply to sales made to a purchaser and afterwards canceled as invalid for some reason other than abandonment and where the purchaser himself was not at fault." Laws 1901, p. 294. The purpose of this provision seems to us to have been mainly to prevent one who had previously purchased four sections from making a new settlement and purchasing again. This inhibition was not contained in the previous laws. The language that the Commissioner "is hereby prohibited from selling to the same party more than four sections of land" was probably out of abundance of caution to reaffirm the existing rule on the subject. The right to purchase additional lands is expressly conferred by article 4218f of the Revised Statutes as amended by the Act of 1897 (Laws 1897, page 184), and that article, as to its main provisions, is not affected by the Act of 1901. It contains the following provisions: "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, such land shall be subject to sale, but to actual settlers only, except where otherwise provided by law, and in quantities of not less than eighty acres or multiples thereof, nor more than four sections containing six hundred and forty acres, more or less; provided, that the purchaser shall not include in his purchase more than two sections of agricultural land; and provided, that where there is a fraction less than eighty acres of any section left unsold, such fraction may be sold. Any bona fide purchaser who has heretofore purchased or who may hereafter purchase any lands as provided herein shall have the right to purchase other lands in addition thereto," etc. The question is, did the Legislature mean by four sections four original surveys, or did they mean lands amounting in quantity to four sections of 640 acres each, — or to 2560 acres? In the primary and broad signification of the term, any division of a thing is a section. But probably by reason of the fact that the United States has surveyed its lands in sections of a square mile each, it has become customary to speak of such a survey as a section. But any survey may be appropriately designated as a section. When in the provision last quoted the Legislature uses the words "four sections consisting of six hundred and forty acres, more or less," they meant surveys, that is, to include surveys intended and purporting to contain the quantity named, — though they might contain more, — and surveys of less than that quantity. In other words, the amount of land the settler was entitled to purchase was to be determined by the number of surveys and not by the quantity in acres. This construction is also borne out by the following provision in the same section from which we have last quoted: "And if the (meaning the purchaser) or his vendor has already resided upon his home section for three years, or when he or his vendor, or both together, shall have resided upon it for three years, the additional lands purchased may be patented at any time." Since the law gives an original purchaser the right to purchase eighty acres or multiples thereof, or an original survey of 640 acres, it is evident that the words "home section" in the foregoing provision include within their meaning a survey of less than 640 acres of land. In the enactments in question, the Legislature were not recognizing a fixed right, but were extending a privilege to purchase; and it might well have been deemed the more practicable and convenient rule to grant the right to purchase three original surveys rather than the quantity of 1920 acres, when such surveys contained less than that quantity. Besides all this, the survey for which the relator applied and which contained only 457 acres and a fraction was known in the land office as "section 65" and was so described in his application.

We conclude that the relator was entitled to purchase the three sections first applied for but not the fourth; and upon the whole case, that the writ of mandamus should be awarded as to sections 65, 101, and 85, but should be refused as to section 83.

It is accordingly so ordered. The defendants, the Nicholses, will pay all costs which have accrued by reason of their being made parties to the suit. All other costs will be paid by the relator.

Mandamus granted.