Willoughby v. Long , 96 Tex. 194 ( 1903 )

This was a suit to establish title to a part of section 23, surveyed upon a certificate granted to the Galveston Brazos Navigation Company, which section was a part of the public school lands of the State. The field notes of the original survey purported to contain 640 acres only, and called to run north 1900 varas; Thence east 1900; thence south 1900, and thence west 1900 varas to the beginning; but all corners were fixed by calls for the corners of surrounding surveys, and the first three also by calls for bearing trees. But by a resurvey, made presumably by the Commissioner of the General Land Office under article 4275 of the Revised Statutes, the field notes of which were filed in the General Land Office on June 6, 1892, it was found to contain 960 acres. The error in the original field notes was in the measurement of the east and west lines of the survey, the distance called for, namely, 1900 varas, failing to reach the well defind corners by several hundred varas. It is the excess over 640 acres, which lies on the north end of the survey, that is the subject of controversy in this suit. The defendant in error, who was plaintiff in the trial court, claims by virtue of an application to purchase made September 16, 1901; the plaintiffs in error, defendants in the court below, claiming under a purchase, as they assert, of the entire section made by one Glenn in 1882.

The first question to be determined is: Did Glenn's purchase include the entire survey, or was it limited to the 640 acres off the south end of the tract? The plaintiffs in error claim that it embraces the whole survey, while on the other hand the defendant in error contends that the south 640 acres only were included in that purchase. That controversy grows out of the language, descriptive of the land, employed in Glenn's application to purchase. The description of the land applied for is as follows: "The following land in section No. 23, block No. ___, in McCulloch County, about 5 miles N. 63 W. from the center of said county surveyed for G. B.N. Company, Certificate No. 84, beginning at the N.W. corner of survey No. 307 in the name of John Startz; thence north 1900 varas; thence east 1900 varas; thence south 1900 varas; thence west 1900 varas to the place of beginning." If at the time the application was filed the resurvey had been filed and the excess had been disclosed, then this description standing alone would, as we think, have shown that the intention was to apply only for the 640 acres on the south end of the survey. But the resurvey had not then been made, and the applicant had the right to rely and doubtless did rely upon the original field notes as being correct. There being nothing on their face to disclose an error, and since the lines designated in the application embraced the entire survey as shown by the original field notes, it is not apparent to us that it was not intended to include the whole tract. But the application proper is only a part of the transaction. It amounts to nothing unless accompanied by an obligation for the unpaid balance of the purchase money. When the application proper, with the obligation and oath required by law, have been filed and the first installment of purchase money paid, the right of the applicant is fixed and there is a contract with the State. It is a familiar rule, that, in construing contracts, all the papers which evidence the agreement must be read together, in order to arrive at the intention of the parties. In the obligation given by Glenn, the land purchased is described as "whole of section 23, block ___, McCulloch County;" then follows substantially the same description as was given in the application. This shows, we think, that the intention was to purchase the whole survey, and that the sale was a sale of the entire tract. It also appears from the evidence in the case that the language in the application, which creates the sole difficulty in construing it, was that contained in a printed form in the surveyor's office, and that the words "following land in section No. ___" were inserted in the form so that it would meet the case, whether the purchaser desired to buy either the whole or a part of the section.

We therefore conclude that the purchase by Glenn included the whole of the survey.

This brings us to the question, was the defendant in error entitled by law to purchase the land in controversy as the excess in the survey? On March 22, 1889, the Governor approved an act passed by the Legislature entitled, "An act to provide for the ascertainment, distribution and sale of the excesses in surveys of land made for the school fund and to validate surveys of land as herein provided." That act so far as it bears upon the question before us is as follows:

"Section 1. Be it enacted by the Legislature of the State of Texas: That all surveys and blocks of surveys heretofore made by virtue of valid alternate scrip be and the same are hereby declared to segregate from the mass of the public domain all the land embraced in said surveys, or blocks of surveys, as evidenced by the corners and lines of same, or by calls for natural or artificial objects, or the calls for the corners and boundaries of other surveys, or by the maps and other records in the General Land Office.

"Sec. 2. That all excess in said surveys or blocks of surveys are hereby donated and declared to belong to the public free school fund of the State; and it shall be the duty of the Commissioner of the General Land Office to ascertain, by any and all means practicable, the existence and extent of such excesses, and to provide for and direct such surveys, or corrected surveys, as may be necessary for this purpose: Provided, that where such surveys were made in blocks of two or more surveys, said respective surveys shall remain on the ground consecutively as placed therein, as shown by the maps, sketches, and field notes originally returned to the General Land Office: Provided, that the person who has already purchased, or who may hereafter purchase from the State, the particular section to which surplus shall by such resurvey be made contiguous, shall have the prior right for the period of six months after such resurvey shall have been made, in which to purchase such excess on the same terms on which such purchaser has already bought or may buy.

"Sec. 3. That all such surveys which, under the direction of the Commissioner of the General Land Office have been or may be hereafter corrected, so that all excess in the original surveys shall be placed in the surveys belonging to the public free schools, are hereby validated, and the action of the Commissioner is hereby ratified; and he is directed and authorized to issue patents to owners thereof, and to sell such surveys belonging to the public free schools, securing to the State the benefit of such excesses."

That it was the purpose of this act to authorize the Commissioner of the General Land Office to cause a resurvey of the lands mentioned in the title, to the end that any excess therein should be ascertained, and to declare such excesses a part of the school fund, is clear. But its provisions otherwise are obscure and difficult of construction. That it contemplated a segregation of the excess in each survey not patented and that such excess should be sold is also evident. But the method by which the segregation is to be accomplished is not provided, unless it is to be implied that the Commissioner was empowered to determine, in his own way, what part should be considered as the excess. That as to the surveys which were unsold he might have been so authorized, and that his power would continue as to lands sold after the act took effect, we see no good reason to doubt. But that such authority could have been conferred upon him as to lands which had already been sold, is a proposition which, it seems to us, can not be maintained. We have ruled, in effect, that when the State makes a sale of its land its rights and those of its vendee, when neither restricted nor enlarged by statute, are the same as those of vendor and purchaser both of whom are natural persons. Fristoe v. Blum, 92 Tex. 76. In this case the sale was clearly by the acre, and there was a large excess in the survey over the estimated quantity. If the sale had been made by a natural person, the right of the vendor would have been to demand pay for the excess at the stipulated price per acre, and in default of such payment to have the surplus set apart to him by a partition. O'Connell v. Duke, 29 Tex. 299. He might sell his claim and thereby confer upon his assignee the right to sue for payment for the excess, or in the alternative to recover the excess itself by a suit therefor. He can not carve out the surplus, without consent of the vendee, and claim it for himself. Nor can the State do so without impairing its contract, which is not allowed by the Constitution. Whether by the act, which we have quoted in part, the Legislature has attempted to empower the Commissioner of the General Land Office to do this as to lands sold at the time the statute took effect, we need not determine. Nor is it necessary that we should construe the statute with respect to other questions. In this case the Commissioner has neither set apart or attempted to set apart the excess in the survey, and it is quite apparent that the defendant in error had no right to treat the land in controversy as such excess. Since we have concluded that the purchase by Glenn included the entire tract of land embraced in the field notes of the survey, and since the excess has never been legally lopped off from the section, it follows, of necessity, that the defendant in error acquired no right by his application and is not entitled to recover.

For these reasons the judgment of the District Court and that of the Court of Civil Appeals are reversed and judgment is here rendered for the plaintiffs in error.

Reversed and rendered.