Gaines, Associate Justice.
The State, who was plaintiff in the court below, having failed to obtain a judgment, appeals to this court. The defendants have filed cross-assignments of error, to be considered only in the court, that plaintiff’s assignments are found to be well taken.
We think there was error in overruling the State’s application for a continuance. It was sought for want of the testimony of J. A. Bhomberg, one of the defendants; and was sworn to and" accompanied by supporting affidavits. Opposing affidavits were filed also by defendants. The witness was sued as a resident of Travis county, but it appeared from the counter affidavits that he was a citizen of Iowa, though he had temporarily resided in Austin from 1881 to about October 15, 1885. Two subpoenas were issued and served upon him in the spring of the latter year, a term of the court intervening between the two. It appears that up to the time that the witness left the State fie had never disobeyed the subpceas. His deposition was also taken on behalf ©f the State, but had been lost. Soon after service of the last subpoena, John D. Templeton, then Attorney General, delivered to the attorneys for defendants interrogatories to retake Ms deposition, and they promised to file cross interrogatories. Repeated applications were made to them for the interrogatories while the witness was still at Austin, but they were not returned until a short time after he had left the State. On one occasion, when the Attorney General applied for them, he was told by one of the counsel for the defendants that the witness would be present at the trial. When the commission was issued the State’s’ counsel was informed that the witness was at Hot Springs, Arkansas, and was then very dangerously ill. It was not sent there on account of his condition. Upon his recovery he went-to Europe, and only returned to this country some ten days before the trial. Upon his return he went directly to his home in the State of Iowa, and had there remained. The counsel for the State did not ascertain the locality of the witness during the time. immediately before the trial, until the case was called. This does ■ not show the utmost diligence; by strictly pursuing the method laid down in the statute the deposition might have been taken in1 Austin before the departure of Rhomberg in 1885. But we think' it sufficient, under the circumstances. Rhomberg was not only a witness, but a party defendant. All the defendants were represented by the same counsel, and they appear to have made common cause in the defense. By promising to “cross” and return [218]*218the interrogatories, and by informing the Attorney General that the witness would attend the trial, they contributed to the delay, which resulted in the failure to get the deposition. A little diligence in carrying out the promise on their part would, have secured the testimony. It would be .unjust to counsel to impute to them intentional delay for the purpose of thwarting the State’s efforts to get the deposition; but their indifference tends to show that the defendant’s resistance to the application for continuance may have been prompted more by a desire for a hearing without the te&timony of J. A. Rhomberg than for a speedy trial upon the true merits of the case. Being a first application, and the continuance being sought for the evidence of one of the defendants, we think the showing of diligence ought to have been held good.
It is objected, however, that the application does not show the materiality of the testimony. The district attorney who represented the State on the trial, on his application under oath, deposes that he believes the testimony of the witness to be material, and refers to the supporting affidavit of the former Attorney General, Templeton, upon that point. The latter deposed, that the testimony was material “during the time he had charge of the cause.” If material then it is reasonable', to conclude that it was material on the trial actually had, because the record shows that the State’s pleadings were not amended after he went out of office. The amended petition upon which the State was forced to trial was signed by him in his official capacity. We think this sufficient upon a first application.
The other assignments of error by appellant are to the findings of the court upon the facts and do not call for consideration. For the error pointed out the judgment must be reversed;'- and this makes it necessary for us to decide the questions raised by the cross assignments of appellees in so far as they are presented in their brief. Appellees’ third assignment is: That the court erred in overrulling defendants’ first special exception to the petition, because there is a misjoinder of actions in the petition, there being a separate and distinct cause of action set up against each defendant. We do not think that the special exception should have been sustained on the ground of multifariousness.
It is too clear for argument, that the State can not join in the same, action with several parties charged with having fraudulently made several purchses from the State without alleging [219]*219such a connection between the transactions as would render them jointly liable to the suit. But we think that the’averment clearly appears in the petition in this case, after alleging that defendants made the purchases or procured them to be made in the ficticious names and in the names of third persons, and their fraudulent representations to the officers of the State, the petition also avers, that all of the “acts and representations so made by defendants were made for the purpose and with the intention on the part of defendants to secure for their own joint use and benefit more sections of land than they were by law-entitled to purchase — that all of said applications to purchase— all of said purchases — all of said payments were made, and all of said certificates were obtained for the use and benefit of defendants, and not for the use and benefit of the persons whose* names are set out in said applications, and set out in said exhibit, that defendants are now claiming to be the beneficiaries and joint owners of all the rights, titles and interests acquired by said pretended purchases and sales,” It is also averred “that all of said false and fraudulent acts and representations alleged against defendants were made by them or their agents or representatives with full knowledge and consent of defendants and each of them, and were so made in furtherance of a common design and conspiracy to defraud plaintiff, and for the purpose of securing said lands for the joint benefit of defendants.” If these allegations be true, as the demurrer admits, then it is equally clear, that a joinder of all the defendants and all the purchases in the same cause of action was proper, if not necessary.
By their fourth assignment appellees complain “That the court erred in overruling defendants’ second and third special exceptions to the petition, because the original purchasers were necessary parties to this suit.” This presents a question of some difficulty. The statute authorizes “suit in the name of the State against all persons who have made such illegal or fraudulent purchases and their vendees or vendees who have bought with notice,” etc. (Laws 18 Leg., 107.) It may be argued that, according to the allegations of the petition, the defendants are the real purchasers, although the names of others were used as purchasers in effecting the transaction; and that it is such purchasers who are meant by the statute, and not those who have merely consented to the use of their names for the benefit of others. The language quoted may admit of this con[220]
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Gaines, Associate Justice.
The State, who was plaintiff in the court below, having failed to obtain a judgment, appeals to this court. The defendants have filed cross-assignments of error, to be considered only in the court, that plaintiff’s assignments are found to be well taken.
We think there was error in overruling the State’s application for a continuance. It was sought for want of the testimony of J. A. Bhomberg, one of the defendants; and was sworn to and" accompanied by supporting affidavits. Opposing affidavits were filed also by defendants. The witness was sued as a resident of Travis county, but it appeared from the counter affidavits that he was a citizen of Iowa, though he had temporarily resided in Austin from 1881 to about October 15, 1885. Two subpoenas were issued and served upon him in the spring of the latter year, a term of the court intervening between the two. It appears that up to the time that the witness left the State fie had never disobeyed the subpceas. His deposition was also taken on behalf ©f the State, but had been lost. Soon after service of the last subpoena, John D. Templeton, then Attorney General, delivered to the attorneys for defendants interrogatories to retake Ms deposition, and they promised to file cross interrogatories. Repeated applications were made to them for the interrogatories while the witness was still at Austin, but they were not returned until a short time after he had left the State. On one occasion, when the Attorney General applied for them, he was told by one of the counsel for the defendants that the witness would be present at the trial. When the commission was issued the State’s’ counsel was informed that the witness was at Hot Springs, Arkansas, and was then very dangerously ill. It was not sent there on account of his condition. Upon his recovery he went-to Europe, and only returned to this country some ten days before the trial. Upon his return he went directly to his home in the State of Iowa, and had there remained. The counsel for the State did not ascertain the locality of the witness during the time. immediately before the trial, until the case was called. This does ■ not show the utmost diligence; by strictly pursuing the method laid down in the statute the deposition might have been taken in1 Austin before the departure of Rhomberg in 1885. But we think' it sufficient, under the circumstances. Rhomberg was not only a witness, but a party defendant. All the defendants were represented by the same counsel, and they appear to have made common cause in the defense. By promising to “cross” and return [218]*218the interrogatories, and by informing the Attorney General that the witness would attend the trial, they contributed to the delay, which resulted in the failure to get the deposition. A little diligence in carrying out the promise on their part would, have secured the testimony. It would be .unjust to counsel to impute to them intentional delay for the purpose of thwarting the State’s efforts to get the deposition; but their indifference tends to show that the defendant’s resistance to the application for continuance may have been prompted more by a desire for a hearing without the te&timony of J. A. Rhomberg than for a speedy trial upon the true merits of the case. Being a first application, and the continuance being sought for the evidence of one of the defendants, we think the showing of diligence ought to have been held good.
It is objected, however, that the application does not show the materiality of the testimony. The district attorney who represented the State on the trial, on his application under oath, deposes that he believes the testimony of the witness to be material, and refers to the supporting affidavit of the former Attorney General, Templeton, upon that point. The latter deposed, that the testimony was material “during the time he had charge of the cause.” If material then it is reasonable', to conclude that it was material on the trial actually had, because the record shows that the State’s pleadings were not amended after he went out of office. The amended petition upon which the State was forced to trial was signed by him in his official capacity. We think this sufficient upon a first application.
The other assignments of error by appellant are to the findings of the court upon the facts and do not call for consideration. For the error pointed out the judgment must be reversed;'- and this makes it necessary for us to decide the questions raised by the cross assignments of appellees in so far as they are presented in their brief. Appellees’ third assignment is: That the court erred in overrulling defendants’ first special exception to the petition, because there is a misjoinder of actions in the petition, there being a separate and distinct cause of action set up against each defendant. We do not think that the special exception should have been sustained on the ground of multifariousness.
It is too clear for argument, that the State can not join in the same, action with several parties charged with having fraudulently made several purchses from the State without alleging [219]*219such a connection between the transactions as would render them jointly liable to the suit. But we think that the’averment clearly appears in the petition in this case, after alleging that defendants made the purchases or procured them to be made in the ficticious names and in the names of third persons, and their fraudulent representations to the officers of the State, the petition also avers, that all of the “acts and representations so made by defendants were made for the purpose and with the intention on the part of defendants to secure for their own joint use and benefit more sections of land than they were by law-entitled to purchase — that all of said applications to purchase— all of said purchases — all of said payments were made, and all of said certificates were obtained for the use and benefit of defendants, and not for the use and benefit of the persons whose* names are set out in said applications, and set out in said exhibit, that defendants are now claiming to be the beneficiaries and joint owners of all the rights, titles and interests acquired by said pretended purchases and sales,” It is also averred “that all of said false and fraudulent acts and representations alleged against defendants were made by them or their agents or representatives with full knowledge and consent of defendants and each of them, and were so made in furtherance of a common design and conspiracy to defraud plaintiff, and for the purpose of securing said lands for the joint benefit of defendants.” If these allegations be true, as the demurrer admits, then it is equally clear, that a joinder of all the defendants and all the purchases in the same cause of action was proper, if not necessary.
By their fourth assignment appellees complain “That the court erred in overruling defendants’ second and third special exceptions to the petition, because the original purchasers were necessary parties to this suit.” This presents a question of some difficulty. The statute authorizes “suit in the name of the State against all persons who have made such illegal or fraudulent purchases and their vendees or vendees who have bought with notice,” etc. (Laws 18 Leg., 107.) It may be argued that, according to the allegations of the petition, the defendants are the real purchasers, although the names of others were used as purchasers in effecting the transaction; and that it is such purchasers who are meant by the statute, and not those who have merely consented to the use of their names for the benefit of others. The language quoted may admit of this con[220]*220struction, and the argument is plausible. But it is intimated in the Snyder case that all persons in whose names the purchases have been made are necessary parties (66 Texas, 703); and we think this the better doctrine. A judgment rendered in this petition' in favor of the State would be conclusive only against the defendants* It would be nugatory as to the other persons who appear on the records to be purchasers of the lands. It was not within the scope of the law-making power to authorize a suit, to which they were not parties, that would conclude their rights; and hence it is not to be presumed that the Legislature so intended.
Nor do we think it was intended to authorize an action that after judgment would leave the rights of the parties holding the apparent title, as shown by the records of the land office wholly undetermined. We are of opinion, therefore, that all real persons, whose names were used in making the purchases, were necessary parties to the action, and that the court below erred in not so holding.
Appellees insist, under their fifth and sixth assignments, that the petition was insufficient by reason of a failure to tender to the defendants the purchase money paid by them for the land. They contended that this is substantially a suit in equity, and is therefore distinguishable from the case of The State v. Snyder (66 Texas, 687), in which it was held that no such tender was necessary. Waiving the question whether the cases differ materially from each other, we think it sufficient to say, the ruling in the Snyder case is placed upon the broad ground that a tender can not be required of the State as it can be of individuals, and that, therefore, the equitable rule does not apply. For the reasons stated in the opinion in that case, we concur in that doctrine.
Appellees’ other assignments call in question the constitutionality of the act of April 14, 1883; and the propositions in support of the assignments seem to be based upon the assumption that the right of action alleged in the petition is claimed under that act. But this we take to be a mistake. The authority to bring the suit is conferred by the act upon the Attorney General, provided it is recommended by three members of the board created by it; and we apprehend there can be no objection to this upon constitutional grounds. The venue of the suits to be instituted is also provided for, and this it was competent for the Legislature to do. An investigation is directed preliminary to bring[221]*221ing the suit, and of this defendants can not complain. The second section may be taken as a legislative construction that the purchase of more land than was permitted by the previous laws, by one person, although the names of other persons may be Used in effecting the transaction, is a fraud upon the law and subjected the purchases so made to forfeiture at the suit of the State. It is not to be construed as making that a ground of forfeiture, which did not before exist, but merely as providing for an 'investigation and a consequent suit, provided it was found that the school lands had been purchased in violation of the previous laws. This suit was brought to set aside certain purchases because made in contravention of the acts of 1879 and of 1881; and was instituted under the authority conferred by the act of 1883. The State v. Snyder is authority for the proposition that the acts complained of in the petition are in violation of the provisions of the former laws and under the purchases subject to be set aside at the suit of the State. The right of action is based upon the acts of 1879 and of 1881; the authority for bringing the action only is derived from the act of 1883. So far as the last act is necessary to the maintenance of this suit, it is clearly constitutional and valid. There was no error in rendering judgment for the State against the defendants for the fifty sections of land to which they entered a disclaimer. When a defendant disclaims he is entitled to his costs, but the plaintiff is entitled to judgment for the land.
For the error of the court below in refusing the application for a continuance the judgment will be reversed and the cause remanded, with instructions to proceed in accordance with this opinion.
Reversed and remanded.
Opinion delivered November 22, 1887.