Schwarz v. McCall

57 S.W. 31, 94 Tex. 10, 1900 Tex. LEXIS 201

• Court: Texas Supreme Court
• Decided: May 24, 1900
• Docket: No. 895.
• Status: Published

Opinion

GAINES, Chief Justice.

In this case, the Court of Civil Appeals for the Second Supreme Judicial District have certified the following statement and question:

“The land in controversy is school section 106, block 3, in Fisher County, within a radius of five miles of section 130 in the same block. The Commissioner of the Land Office awarded it to appellee upon his application to purchase made September 3, 1897, not as an actual settler, but as a bona fide purchaser of said section 130 from Andy Scott, who had purchased it from the State as an actual settler under the Act of 1883, and who had resided thereon continuously for three years next succeeding his purchase, making proof of such occupancy, ivhich was accepted by the Land Commissioner. Appellee has never resided upon either of these sections, but Colorado City has been the place of his residence since before the date of hie application to purchase.

“Appellant made application subsequent to that of appellee to purchase said section 106 as an actual settler on section 132 in the same block, the section in controversy being also within a radius of five miles of section 132, but his application was rejected. Both parties complied in all respects with the law. That is to say, appellee is entitled to the land if he was eligible as a purchaser, but if he was not, appellant is entitled to the land by virtue of his actual settlement on section 132 and his subsequent application to purchase the land in controversy and his compliance with the law in such cases provided. He brought this suit, and was denied a recovery upon the ground that appellee was entitled to the land under the award made to him.

“The decision of the case, therefore, turns upon the right of appellee to purchase a section of school land in Fisher County without being an actual settler upon it or any other section of school land, and involves a construction of section 5 of the amended Act of 1897, Revised Statutes, article 4218f. We deem it advisable to certify this question to your honors for decision; that is, whether or not appellee was entitled to purchase the land in controversy as additional lands to section 130, without settling or residing upon the latter or home section, although his vendor settled and resided upon it for three years next after his purchase, which was in compliance with the law. Abstractly stated, the question is, can a bona fide purchaser of a section of school land from one who has purchased it from the State and resided upon it for three years as an actual settler, purchase an additional section of land from the State, as provided in article 4218f of the Revised Statutes, without himself becoming a settler or resident upon either section ?”

The law in force at the time the parties made their respective applications to purchase the section of land in question was the Act of Hay 7, 1897, in relation to the sale and lease of the public free school and asylum lands. That act amended article 4218f of the Revised Statutes and added articles 4218ff and 4218fff. Original article 4218f reads as follows: “When any portion of said land has been classified to the satisfaction of the Commissioner under the provisions of this chapter or former laws, such lands shall be subject to sale, but to actual settlers only, and in quantities of hot less than forty acres, and in multiples thereof, nor more than one section containing six hundred and forty acres more or less; provided, that when there is a fraction less than forty acres of any section left, such fraction may be sold; but lands classified as purely pasture lands may be sold in quantities not to exceed four sections to the same settler.” The following is the article as amended: “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; provided, that the total of his purchases shall not exceed four sections, and that it shall not include more than two sections of agricultural land, upon his making oath that he is not acting in collusion with others for the purpose of buying the land for any other person or corporation, and that no other person or corporation is interested in the purchase thereof. And if he 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. In all cases where a settler purchases more than one section, the lands in excess of one section so purchased must be situated within a radius of five miles of the land occupied by him. Where any of the lands referred to in this act have been sold prior to July 30, 1895, in quantities greater or less than forty acres or multiples thereof, and are in good standing as to interest payments, they may be patented in such quantities. In any eases where lands have been forfeited to the State for the nonpayment of interest, the purchasers or their vendees may have their claims reinstated on their written request, by paying into the treasury the full amount of interest due on such claim up to the date of reinstatement; provided, that no rights of third persons may have intervened. In all such cases, the original obligations and penalties shall thereby become as binding as if no forfeiture had ever occurred.”

But for the words in the amended article, “except as otherwise provided by law,” there would be no difficulty in determining the question. The lands are to be sold “to actual settlers only,”—that is to say, to actual settlers either upon the section sought to be purchased or upon a section either then purchased or sought to be purchased at the same time, which embraces, within a radius of five miles, the additional section or sections desired. Now, with regard to the words, “except as provided by law,” it is to be noted, in the first place, that article 4218y expressly provides that certain detached and isolated sections and parts of sections may be sold to any purchaser other than a corporation, “without actual settlement.” With this exception in view, it is to be-remarked, in the second place, that it would seem that if the Legislature had intended to make another exception in the very section in which it declared that the lands should be “subject to sale to actual settlers only,” they would have made an express provision to that effect, or would have used such terms as would leave no doubt as to that intention. Instead of doing this, they have, as we think, used language which not only fails to make clear an intent to make an exception, but which, by reasonable implication, shows that such intention did not" in fact exist. The article under consideration is crudely framed and abounds in incongruities, and there are expressions in it which, disconnected from their context, admit of the construction that when a purchaser had resided for three years upon one section, he could then abandon it and buy three other sections without actual settlement. Take the two provisions which read as follows: “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; provided, that the total of his purchases shall not exceed four sections, and that it shall not include more than two sections of agricultural land, upon his making oath that he is not acting in collusion with others for the purpose of buying the land for any other person or corporation, and that no other person or corporation is interested in the purchase thereof. And if he 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.” The first sentence, literally construed, would apply only to the original purchaser from the State and would give him the right to purchase other sections notwithstanding he had abandoned his first, though he had never completed his term of residence of three years. .This proves too much; so that it is clear that it was intended that the language should be qualified and limited by other provisions of the article, and notably by that provision which declared that the lands should be sold to actual settlers only. But that by the terms “bona fide purchaser” is meant not only the original purchaser but a purchaser from him, is made manifest by the words, “and if he-or his vendor,” in the next succeeding sentence. Indeed, these last words, literally construed, indicate that by bona fide purchaser is meant only the vendee of the original purchaser, and would exclude an original purchaser from the privilege granted of having the additional lands patented at any time after a three years residence upon the section originally purchased. The words, “bona fide purchaser,” seem to us inapt when applied to other than the original purchaser. His good faith is involved in his settlement of the land and it is appropriate to speak of him as a bona fide purchaser, so that if his vendee is embraced by the terms, as the words in the next sentence, “he or his vendor,” require us to hold, it must also be held that the bona fides referred to is his good faith in settling upon the land. Clearly, the State has no interest in the good faith of .the transaction as between him and the original purchaser, and therefore it is unreasonable to presume that it was intended to require that the sale, as between them, should be bona fide. This indicates that the purpose of the Legislature was not only -to limit the .right to purchase additional 'lands to one who had purchased a section as a settler in good faith, but also to a purchaser from him who had bought in good faith with a view to settling and actually settled upon it, in pursuance of that intention. At all events, these incongruities in the provisions immediately under consideration are enough to show that the statute is loosely drawn and that the purpose of the Legislature can not be safely determined without considering the entire context. But the latter provision itself contains language which, in itself, leads almost irresistibly to the conclusion that neither an original purchaser nor his vendee has a right to purchase additional lands, unless he be actually residing upon the original section at the time of his application, notwithstanding that cither or both together may at the time have resided upon it for the three years. The language is, “if he or his vendor has already resided upon his lióme section,” etc. This implies that the section spoken of,— “the mother section,” as it is sometimes called—must be the home of the applicant at the time he makes application to purchase other lands. It certainly means, we think, that in case of a vendee, it must be, at the time, his home. “If he or his vendor has already resided upon Iris home section.” Whose home section? “His vendor” means necessarily the vendee’s vendor, and so “his home section” must mean the vendee’s home section. Without settlement upon it, or at least without the intention to settle upon it, it can not be his home. Again, the next sentence provides that the additional section sought to be purchased must he “within a radius of five miles of the land occupied by him.” This implies that theJ favor was to be extended to an occupant of the land. Now, one may have" a homestead upon land, under our exemption laws, which may be occupied by his tenant, or not actually occupied at all. So one may constructively occupy lands through a tenant, for the purposes of limitation. But we apprehend that a statute which starts out with the declaration that the free school lands shall be sold to actual settlers only except where otherwise provided, and which speaks of home and occupancy, means, in the absence of some language showing a contrary intention, actual homes and actual occupancy.

But looking to the original article 4218f in connection with the amended article, we see more clearly what the Legislature which passed the amendment regarded as the imperfections in the existing law, and the provisions which were necessary in order to supply its defects. One of the defects was that a settler was allowed to buy one section only of agricultural lands. Another was that in order to buy more than one section in any case, he must buy all at the same time. The first was remedied by providing that two sections of agricultural land could be purchased; and the second by providing that after the purchase of one section, the actual settler upon that section could purchase additional lands not exceeding three sections anywhere within a radius of five miles of his home section, without being required to settle upon the additional lands so bought. By the former law, by virtue of his settlement, he could purchase not exceeding four sections, but all at the same time. By the new law, he was permitted, by virtue of his settlement and purchase of one section and of his continued residence thereon, to purchase additional lands; all not to exceed four sections, at any time after the first purchase. The reason of this was that four sections of pasture land was not regarded as more than was proper to the use and support of an actual settler and his family. He might not be able to buy the additional sections at the time of his first purchase. Hence it was deemed but just that being an actual settler upon land already bought, he should be allowed, at any time, to purchase the additional sections allowed by the law. Hot only this; under the former law, he could sell his land and substitute his purchaser to his rights and obligations. By the new law, the first purchaser having been given the right to purchase additional lands, it was then provided, in effect, that his vendee who should purchase and settle upon the land should have the same privilege. This was a right given to an actual settler and is in consonance with the spirit which pervades the entire act in relation to the sale of school lands. The construction contended for by appellee would make the right to buy additional lands appurtenant tó the section first purchased, whenever it had been continuously resided upon for the period of three years. We fail to see the policy of such a provision. If the intent had been to induce the settlement of the first section by giving a right to purchase new lands, whenever the settler had occupied such section for three years, it seems to us the privilege would have been conferred upon the first purchaser himself and not upon his vendee.

Section 16 of article 7 of our Constitution provides that actual settlers upon lands donated to counties shall have a preference right to purchase 160 acres of the land upon which they have settled. Section 4 of article 14 prohibits the sale of scrip by the Land Office except to actual settlers. Section 6 of the last named article donates to each head of a family who has no home 160 acres of the public domain, and to every single man, 80 acres, upon condition that they reside upon it for the term of three years. In disposing of the school lands, the Legislature, with a view doubtless to encourage the settlement of the country and to enable the homeless to procure homes, has pursued the same policy and has, up to the time of the passage of the amended article we have been considering, provided that these lands, with the exception of the isolated and detached sections, should be sold to actual settlers only. To hold now that by the amended article the Legislature intended to allow either an original purchaser who has resided for three years upon the land so purchased but who has ceased to reside upon it, or his vendee, who has never settled upon the land, to buy other lands within a radius of five miles of the original section, is to hold that they have departed from the spirit of the act and the well established policy of previous Legislatures without any good reason appearing to justify such course. The language of the article in question, though somewhat obscure and difficult of construction, not only fails to show that such was the intent, but rather leads to the conclusion that the purpose Avas to require that both the original purchaser and his vendee must be an actual settler upon the parent section, in order to give a right in any case to buy additional lands.

The case of Chancy v. State, 84 Texas, 529, upon which the Court of Civil Appeals based its ruling in the case of Thomson v. Hubbard, 53 Southwestern Reporter, 841, involved the construction of a very different statute, and is not in conflict with the views herein expressed.

We answer the question in the negative.