Houston v. Koonce

DUNKHIN, J.

G. G. Houston sued Mrs. J. E. Koonce in trespass to try title to recover two tracts of land designated as surveys Nos. 17 and 16, and, from a judgment rendered in defendant’s favor upon a verdict returned in obedience to a peremptory instruction by the court, plaintiff has appealed.

The evidence of title upon which the plaintiff relied was .a purported purchase from the state under and by virtue of section 8, c. 103, p. 164, Acts of the Hegislature of 1905. Prior to the purported sales of the two surveys to the plaintiff by the Commissioner of the General Hand Office, plaintiff had already purchased from the state the following four surveys of public school land designated as surveys Nos. 12, 13, 14, and 11. Plaintiff applied for the purchase of said sur-ivey 12 for the purposes of a home on condition of settlement and for the purchase of surveys 13, 14, and 11 as additional to survey 12, his home section. These four tracts were surveyed under section 8, c. 103, of the act of 1905, and no sale of any of these four surveys has been canceled.

Section 3, c. 125, p. 294, Acts of the Hegis-lature of 1901, provides that: “The commissioner of the General Hand 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 appears 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 after-wards canceled as invalid for some reason other than abandonment and where the purchaser himself was not at fault. * * * ”

If the provision quoted above from the act of 1901 was repealed by section 8 of the act of 1905, then the judgment should have been in plaintiff’s favor; otherwise it was correct, and, as defendant introduced no evidence to prove title in herself, this is the only question presented for our decision.

[1] The act of 1905 contains a general provision repealing all laws and parts of laws in conflict with it, but contains no specific ref-! erence to the act of 1901. Section 8 of the act of 1905 provides for the survey and sale of certain unsurveyed public school lands either for cash or for part cash and part on long time, and contains no express inhibition of sale to a person who had already purchased four sections; but it expressly provides that sales of tracts containing 640 acres or less shall be “without -condition of settlement and improvement, and with the right to pay the same out at any time and obtain patent.” It further provides that “all other unsurveyed vacant tracts disclosed by the official maps in use in the land office when an application for survey is filed shall be sold on condition of settlement and improvement as provided by law for the sale of surveyed land.” The act contains the further provision: “When the land is applied for and purchased under this section, without condition of settlement and improvement, the application to purchase shall otherwise conform to-the requirements of application for surveyed land except as to settlement and designation of home tract.”

[2] The two acts should be harmonized, if possible, and force and effect given to each, and, unless the language quoted above from the act of 1901 prohibiting the sale of more than four sections to the same person is repugnant to the act of 1905, it must be presumed that in passing the latter act the Hegislature intended that the former statutory inhibition mentioned should continue in effect. Sutherland on Stat. Const. §§ 138, 217; 36 Cyc. 1149. The act of 1901 required the purchaser of land to reside upon the land for a given period and to improve the same, and provided for a forfeiture of the land in the event of his failure to comply with that requirement;- and in that act there was no provision for sales entirely for cash. -As will be observed from what we have said already, the act of 1905 expressly changed the provisions of the former act in the particulars last noted, thus showing that the Hegislature had in mind the former law, and intended no change thereof except as expressed in the latter act. The inhibition o-f a purchase by the same person of more than four sections of public school land is in no manner repugnant to any of the provisions of section 8 of the act of 1905 and was not repealed thereby.

As the attempted sale of the land in controversy was in violation of that inhibition, it conveyed no title to appellant, and, as there was no other evidence to support his claim of title, the judgment is affirmed.