Whitis v. Robinson , 102 Tex. 389 ( 1909 )

The relator Whitis seeks by his petition to compel the Commissioner of the General Land Office to set aside an award of a section of school land made to the co-respondent Blauser and to award the section to him.

The land was on the market and was set down for competitive bidding on the 24th day of October, 1908. The relator made application to purchase the section at $12.51 3/4 per acre, and before the 24th day of October aforesaid had paid into the State Treasury one-fortieth of the purchase money as required by law. He also avers that the co-respondent Blauser, previous to the 24th day of October, made application to purchase the section, bidding therefor the sum of $14.65 per acre; but that instead of depositing his first payment of one-fortieth of the purchase money, he, before 10 o'clock a.m. of that day, deposited a check on a bank in Austin, which check was not collected until the afternoon of the same day.

The co-respondent Blauser's answer shows that one Gibbs acted for him as agent in making his application to purchase the land, and that Gibbs, upon repairing to the State Treasurer's office, was informed by the Chief Clerk that a check on a bank would be received for the first payment. Now, it seems to us that when he was informed that a check would be taken as payment of the money and a check was received, it should be taken as a payment. But at all events, it was received as a payment and was collected and applied to the first payment of the land. This is unlike the case of Rawls v. Terrell (101 Tex. 157.) There no money was paid until after the bids were opened and Rawls declared the successful bidder. It was said, in that case, that to allow Rawls to pay after the bids were opened would be to allow him to decline to pay and then to purchase the land at its appraised value. In this case Blauser could no more have withdrawn his check than he could have withdrawn his money. The relator's proposition is that since when the bids were opened he had his one-fortieth of the purchase money in the treasury and Blauser had only a check there, Blauser's bid was not effective, and that his bid being the next highest, he was entitled to an award of the land. But we think the check in this case should be deemed a payment of the first part of the purchase money for the land; and therefore the petition for the writ of mandamus is refused.

Mandamus refused.