Waggoner v. Flack

Ordered that Attorney General of Texas be notified of pendency of suit February 24, 1902.

Ordered for oral argument before full bench May 19, 1902.

Argued December 9, 1902.

Decided February 23, 1903.

The plaintiff in error brought his action against the defendant in error in a district court of Texas to recover as owner certain land described in his petition, and of which he alleged the defendant to be in possession. The defendant denied the averments of the petition, and upon the trial judgment was given in his favor and he was adjudged to be the owner of the land. An appeal was taken to the court of civil appeals of Texas, where the judgment was affirmed, and upon application to the supreme court of the state for a writ of error, the application was denied. The plaintiff then sued out a writ of error from this court to the court of civil appeals, and the record has been brought here for review.

The plaintiff in error alleges the existence of a contract with the state of Texas, the obligations of which he asserts have been impaired by subsequent legislation in that state. The case involves an inquiry into some of the legislation of the state in regard to its public lands, providing for their sale and for the application of the proceeds of such sales for the benefit of its public schools and for other public purposes.

The state has been and is the owner of a large amount of public lands, portions of which it has put upon the market for sale from time to time, under different acts of its legislature, which acts have provided a general system for the sale or leasing of such lands and for the disposition of the proceeds arising therefrom. Among others the legislature passed the act of 1879 (chap. 28, Laws of that year, p. 23). That act provided in detail for the sale of certain public lands, and the terms and conditions upon which the sales were to be made and patents therefor granted. The 12th section provided that, upon a failure of the purchaser to pay the purchase money as agreed upon, it should be the duty of the district attorney to cause a writ to be issued to show cause why the purchaser should not be ejected from the land, and upon his failure to show such cause, a judgment was to be rendered against him and a writ of possession issued in favor of the state. In 1881 the act was amended in immaterial matters.

By chapter 88 of the Laws of 1883, p. 85, another general system for the sale of the public lands for the benefit of the public school system, etc., was enacted, the 9th and 10th sections of which provided for payment of instalments of principal and interest, and in case of failure to pay, the lands were to be entered as 'lands forfeited,' without any judicial inquiry. This act provided that the interest on the obligations given by the purchaser of the lands should be payable on the 1st of March in each year. Subsequently by chapter 12 of the Laws of 1885, p. 13, approved February 16, 1885, the 9th and 10th sections of the act of 1883 were amended, the right of forfeiture of the land being still retained, only there was an extension of the time for payment of interest from the 1st of March to the 1st of August in each year before the forfeiture could be asserted. In one week after the passage of the act last named the same legislature passed an act, approved February 23, 1885 (Laws of Texas, 1885, p. 18), by which it was enacted 'that the failure of a holder of public free school, university, or asylum land, under contract of purchase from the state, to make the annual payments of principal or interest thereon prior to the 1st day of August after the same becomes due, shall not cause a forfeiture of the rights of such holder in such land.' By this act it is claimed that all laws providing for forfeitures of land because of nonpayment of instalments of principal or interest prior to August 1st after the same became due were repealed, and while the law thus stood the plaintiff in error's grantor purchased the land in controversy.

By chapter 99 of the Laws of 1887, page 83, a further provision for the sale or leasing of public lands was made. Section 11, page 86, restored the provisions as to forfeiture without resort to judicial proceedings, and by chapter 47, Laws of 1895, § 11, as well as by chapter 37, Laws of 1897, page 39, approved March 25 and taking effect August 20, 1897, further provision was made in regard to forfeitures without a resort to the courts. It was under the act of 1897 that the forfeiture herein was asserted, and the 1st section, the only material one here, is set forth in the margin.

Sec. 1. Be it enacted by the Legislature of the State of Texas, That if upon the first day of November of any year any portion of the interest due by any person to the state of Texas for lands heretofore sold by the state of Texas, whether said lands be a part of the public domain or shall have been heretofore set apart for the public schools, unlversity, or any of the other various state institutions, has not been paid, it shall be the duty of D. B. Phillips, under the act of 1883, as amended by the act of February 16, 1885, and modified by the act of February 23, 1885, made application to purchase the land in question on the 30th of October, 1885, and the land was duly awarded him in November of that year. The plaintiff in error, by proper transfers and deeds, has become the vendee, or grantee through others, of Phillips, and represents all the rights that the latter or his grantees had with regard to the premises in controversy.

Phillips, or those claiming under him, paid the interest on the purchase money up to January 1, 1893, and no interest was thereafter paid. The land was forfeited for nonpayment of interest since 1893, by the commissioner of the general land office, without any judicial procedure or suit in court, on August 20, 1897, the day the act of 1897 took effect. In answer to a certified question from the court of civil appeals, the supreme court of the state held in this case that the state had the right to so forfeit the lands by virtue of that act.

Some time after August 20, 1897, namely, on December 16, in that year, plaintiff through his agent tendered the state treasurer $286.95 to pay up all accrued interest due on the land purchased by Phillips, and on the last-named date through his agent he asked the reinstating of the account of Phillips, and forwarded to the commissioner of the general land office the transfers or deeds, or copies of the same, showing the chain of title from Phillips to himself, and these transfers were filed by the commissioner in his office, but he refused to reinstate as demanded, on the ground that the rights of the defendant Flack had intervened. Flack, prior to this tender and demand, and on November 17, 1897, made his application in due form to purchase the land. His application was on that day accepted, and his obligation to pay the purchase money was received, and thereafter, in March, 1898, the land was awarded him on his application of the previous November. On August 13, 1898, after this suit was brought, the plaintiff in error, through his attorney, again made written application to have the Phillips account for the purchase of the land reinstated, and for this purpose tendered to the state treasurer of Texas, to pay the interest in arrear, the sum of $345.25, which application was rejected on the ground of the intervening rights of the defendant Flack.

Mr. W. W. Flood for plaintiff in error.

Messrs. C. K. Bell and T. S. Reese for the State of Texas on oral argument.

No counsel for defendant in error.

Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court: