Lester v. Elliott , 26 Tex. Civ. App. 429 ( 1901 )

Elliott brought this suit in trespass to try title on February 24, 1899, against Lester to recover section 8, block A3, Gulf, Colorado Santa Fe Railway Company public school land lying in Hale County. The defendant pleaded not guilty. The case was tried by the court without a jury and judgment rendered for the plaintiff, and Lester has appealed.

The record shows that each party was a settler upon a home section and the section in controversy was within a radius of five miles of each of their home sections, and each was entitled to purchase the land as additional grazing land. It was reclassified as dry grazing land and appraised at $1 per acre by the Commissioner of the General Land Office, and placed on the market by him on December 29, 1897, the clerk of the County Court of Hale County having received from the Commissioner notice of such reclassification and appraisement on that day at 6 o'clock p.m. At about 10 o'clock that day, and before the clerk received the notice and list from the Commissioner, Lester filled out an application and obligation to purchase the section at $1 per acre, and verified the application before the county clerk, and left them with the clerk to complete by adding his jurat and inserting date after the notification was received by the clerk, which notice from the Commissioner was expected to arrive by the 6 o'clock mail. The jurat and date were added by the clerk after the notice was received and filed, and the application, obligation, and cash payment were forwarded by the mail to the Commissioner and Treasurer, respectively, as required by the statute. On the next morning, December 30, 1897, Elliott made out his application and obligation, and, together with the cash payment required, forwarded them by mail, and the record fails to show which application reached the hands of the Commissioner first, but the Commissioner's file mark on Lester's application was 41,114, while that on Elliott's was 41,758. Elliott's application was also indorsed: "Received 7:50, 1.3.1898," while Lester's was indorsed: "Received 1.3. 1898," with no hour or minute given. The land was awarded and sold by the Commissioner to Lester on April 6, 1898, and in October of said year Elliott was notified that his application was rejected.

In support of the action of the Commissioner we conclude from these facts that Lester's application was received by him before Elliott's; the file number indicates it, and the award and sale to him do also.

The learned district judge who tried the case found as matter of law: "That the burden of proof was upon plaintiff (Elliott) to show that his file reached the Land Office first in point of time and failing to do so should not recover upon this point. That the Lester file being made before the clerk received the notice of the Land Commissioner, was an invalid file, and plaintiff should recover."

To this last conclusion of his honor, that Lester's file was invalid, error is assigned, and we think must be sustained. His honor seems to have entertained the opinion that because Lester made out his application and swore to it before the county clerk had received the notice of reclassification and appraisement from the Commissioner, his application was, therefore, invalid. In this we think that the learned judge was in error. It is of no consequence when the application was written out and sworn to, except that the facts stated therein ought to be true when made and true when filed in the Land Office. The application, in contemplation of law, is not made until it is filed in the Land Office, and if the statements contained therein are true then, and the land is then on the market, that is, if the county clerk has then received notice of its classification and appraisement, the application is good; and if the applicant has complied with the law in all other respects, and his application is received first in point of time after the clerk had received the notice aforesaid, he is entitled to purchase the land, and it would be the duty of the Commissioner to accept his bid and award it to him. Martin v. Marr, ante, p. 55.

This determines the only important question raised by the record, and must result in the reversal of the judgment.

The trial court having found the facts substantially as we have stated them, it becomes our duty to render the judgment here which that court should have rendered. It is therefore ordered that the judgment in this case be reversed, and we here now render the same in favor of appellant, and the clerk of this court is directed to enter it accordingly.

Reversed and rendered.

ON MOTION FOR REHEARING.