Monroe Cattle Company v. Becker/Opinion of the Court
This case involves the construction of the statutes of Texas with regard to the purchase of school lands, and depends upon the question whether, during the 90 days allowed to the proposed purchaser to make his first payment, it is competent for the surveyor to receive another application for the same land, or rather to permit a person, who had theretofore filed applications for two parties, to treat such applications as withdrawn and abandoned, and to make other applications in the name of different persons within the 90 days.

No one can examine critically the provisions of the statutes in question without noticing the solicitude of the legislature to prevent a monopoly of these lands by capitalists, or their withdrawal from the market by fictitious applications. To secure a measurably equal allotment to each purchaser it was provided:

(1) That no one should purchase more than three sections within five miles of the center of any county, or upon any water front, nor more than seven sections in any case.

(2) That he should make his first payment within 90 days of his application.

(3) That applications should be made in the real name of the actual purchaser.

(4) That no one should renew his application nor file on the same land more than once in 12 months.

(5) That no one should renew his file in the name of another.

In this case there were circumstances calculated to arouse suspicion in the conduct of both parties. Upon the one hand, Rhomberg made application on February 28, 1882, for the purchase of these 11 sections in the names of F. Becker, S. L. Rhomberg, and Conrad Becker. These applications were suffered to lapse, and on the ninetieth day thereafter, namely, May 29th, he made application for seven sections of the same lands in the name of J. M. Beechem, and on the following day for four sections in the name of M. B. Thompson. These applications were also suffered to lapse, and 92 days thereafter, namely, August 28th, he applied for the same sections, except section 66, in the name of Margaretta Rhomberg and F. M. Robinson. He also seems to have intended that these should lapse, but, as the ninetieth day (November 26th) fell on Sunday, he wrote his attorneys on the 22d: 'The old fild expires on Sunday next. You will therefore probably have to refile on Saturday.' A new application was therefore made on Saturday, November 25th, in the name of Maggie L. Rhomberg and Frank Robinson. In this connection the bill charged that Rhomberg made these applications in the names of other persons, who did not intend to be actual purchasers, for his own use and benefit, in order to acquire more than he was permitted to purchase directly from the state; that he further determined, in violation of the provision against renewing files in the names of other persons, to take advantage of the 90-day limit, to allow the applications to be forfeited, and to make new applications in the names of other persons, not intending to be actual purchasers, and thus to hold the lands for a longer period than was permitted by the law; and, for the time being, to avoid the payment of any part of the purchase money and of the taxes, which would be assessed after the first payments had been made.

An answer under oath being required, the defendant denied the fraudulent purposes and designs charged against Rhomberg in the bill, and in his testimony Rhomberg swore that Margaretta and Maggie L. Rhomberg were different persons, as were also F. M. Robinson and Frank Robinson, and that they were each of them bona fide living persons, three of them living in Iowa, and one in Chicago; that Margaretta Rhomberg was his sister-in-law; that he was only distantly related to the husband of Maggie L. Rhomberg, and that he was not related to either of the Robinsons; that he was not interested in any of the purchases himself; that he considered investments in Texas school lands good, and made his views known to many of his relatives and friends, and advised them to buy; that, as he was making his headquarters in Texas, many of them confided their interests to him; that he looked after them without demanding or expecting any pay for his services; and that the persons for whom he acted furnished the money to pay for the lands. He admitted making several applications to purchase the lands in question, and that these were abandoned without making the first payments; that the different applications were not renewals, but were for different persons; and that they were not intended to keep other persons from purchasing the lands. In short, that the applications were made bona fide for the benefit of the applicants, and that he had no personal interest in any of them. As there was no testimony contradictory of this, Rhomberg being the only witness examined on the subject, the charges of fraud must be regarded as not sustained, if, indeed, the answer be not sufficient for that purpose without other testimony. Hughes v. Blake, 6 Wheat. 453; Vigel v. Hopp, 104 U.S. 441; Beals v. Railroad Co., 133 U.S. 290, 10 Sup. Ct. Rep. 314.

Upon the other hand, the answer charges that one H. C. Jacobs was county surveyor and J. L. Fisher was county judge of Shackleford county; that they were partners as realestate agents, transacting business under the name of Jacobs & Fisher; that the F. B. Jacobs who made application in January was a brother of H. C. Jacobs, and postmaster at Albany, the county seat of Shackleford county, and that Malinda Fisher, who applied for the remainder of the lands, was the wife of one John A. Fisher, deputy surveyor of the county, and brother of the other member of the firm of Jacobs & Fisher; that they entered into a conspiracy to levy a contribution upon all the purchasers of school lands in the county, and to control the same for their own benefit; that the firm of Jacobs & Fisher wrote letters to Rhomberg soliciting his business, promising to sell his lands at an advance, and offered to make files of applications, promising special favors and attention to all who should employ them. It seems that Rhomberg did employ them in this connection, and had some correspondence with them. As these charges were made upon information and belief only, and as there is no evidence to support them, except the similarity of names, they must also be treated as not sustained.

The case resolves itself, then, into the simple question whether the surveyor was authorized to receive the applications of November 25th, and whether the plaintiff is in in a position to take advantage of his failure of jurisdiction in this particular. The language of the act is somewhat ambiguous, but the intent of the legislature that no application shall be entertained within the 90 days is entirely clear. It provides that the state treasurer 'shall then issue his receipt for said amount and forward it, with the abovenamed application, to the commissioner of the general land office, who shall file said application and receipt in his office, and issue his receipt in lieu thereof, * * * which certificate shall authorize the * * * surveyor to survey the land * * * and enter the same on his books as sold, and shall not entertain another application to purchase said land until notified of the forfeiture as hereinafter specified.' Grammatically, the words 'shall not entertain' refer to the commissioner of the land office; but the proviso that, 'should the applicant fail to make his first payment * * * and present the certificate of the commissioner of the general land office to the surveyor or his deputy within ninety days from the date of the record of his application, then, and in that case, the said lands shall be again for sale, and the surveyor shall be authorized to receive applications for the same,' indicates that the words 'shall not entertain another application' refer to the surveyor, and not to the commissioner. As more than 90 days had elapsed from May 29th and 30th, the applications of August 28th are admitted to have been regular, and no other application could have been lawfully entertained within 90 days thereafter. As the ninetieth day fell on Sunday, the lands were not open to another application until Monday; the general rule being that, when an act is to be performed within a certain number of days, and the last day falls on Sunday, the person charged with the performance of the act has the following day to comply with his obligation. End. Interp. St. § 393; Salter v. Burt, 20 Wend. 205; Hammond v. Insurance Co., 10 Gray, 306. The defendant claims that, while the act prohibited the entertaining of a second application in less than 90 days from the prior application, Rhomberg in fact had the right to withdraw and abandon the application and make another at any time within the 90 days. As no record exists of its abandonment, and no allusion is made to it in Rhomberg's letter of November 22d, such abandonment can only be presumed from the fact that the new application was made November 25th. There is nothing, however, to distinguish this from the prior applications in that particular. A construction of the act, too, which would permit such an abandonment would defeat the very object of the legislature, which was to fix a time within which no other application should be entertained, so that parties desiring to purchase the land would be apprised of the day when it would be open to an application. Such persons, however, could never know when an application would be abandoned, and such proceedings would permit an applicant, by a simple change of name of the person he represents, to keep the lands out of the market for an indefinite period. It is true that in Martin v. Brown, 62 Tex. 469, it was held that a fictitious application to purchase would not have the effect of preventing another person from applying before the expiration of the 90 days, but it certainly does not lie in the mouth of the defendant to claim that Rhomberg's first application was fictitious, since his whole case depends upon the propriety and legality of his action. In Martin v. Brown the demurrer admitted that the first application was fictitious, and made by an agent for his own benefit, for the purpose of withholding the lands from the market. In this case the defendant claims, and proves by the testimony of Rhomberg, that the application was made by him in good faith for the benefit of the applicants, and not for his own.

During the 90 days allowed by law for the first payment the land is in the position of reserved lands under railroad grant acts. The grant does not attach to them if at the time they are pre-empted or otherwise segregated from the public lands. This principle is established by a large number of cases in this court. Wilcox v. Jackson, 13 Pet. 498; Leavenworth, etc., R. Co. v. U.S., 92 U.S. 733; Railway Co. v. Dunmeyer, 113 U.S. 629, 5 Sup. Ct. Rep. 566; Railroad Co. v. Whitney, 132 U.S. 357, 10 Sup. Ct. Rep. 112; Bardon v. Railway Co., 145 U.S. 535, 12 Sup. Ct. Rep. 856; U.S. v. Southern Pac. Ry. Co., 146 U.S. --, 13 Sup. Ct. Rep. 152.

Defendant's position that the subsequent issuing of a patent put an end to the equitable rights of the appellant cannot be sustained, either under the decisions of this court or that of the supreme court of Texas. In the case of Garland v. Wynn, 20 How. 6, the general rule was stated to be 'that, where several parties set up conflicting claims to property, with which a special tribunal may deal, as between one party and the government, regardless of the rights of others, the latter may come into the ordinary courts of justice, and litigate their conflicting claims.' To the same effect are Cunningham v. Ashley, 14 How. 377; Lytle v. Arkansas, 22 How. 193, 203; Berthod v. McDonald, Id. 334; Lindsey v. Hawes, 2 Black, 554; Shepley v. Cowan, 91 U.S. 330; Bohall v. Dilla, 114 U.S. 47, 5 Sup. Ct. Rep. 782; Sturr v. Beck, 133 U.S. 541, 550, 10 Sup. Ct. Rep. 350. In the case of Stark v. Starrs, 6 Wall. 402, 419, these cases are said to be 'only applications of the well-established doctrine that, where one party has acquired the legal title to property to which another has a better right, a court of equity will convert him into a trustee of the true owner, and compel him to convey the legal title.' And in Silver v. Ladd, 7 Wall. 219, it was held that the proper relief was not the annulment and cancellation of the patent wrongfully issued, but was one founded upon the theory that the title which had passed from the United States to the defendant inured in equity to the benefit of the plaintiff, and that the decree should compel him to convey to the plaintiff, or to have such conveyance made in his name by a commissioner appointed by the court for that purpose. See, also, Johnson v. Towsley, 13 Wall. 72. It seems that this is also the law of Texas. Todd v. Fisher, 26 Tex. 239; Mitchell v. Bass, Id. 376; League v. Rogan, 59 Tex. 427; Sherwood v. Fleming, 25 Tex. Supp. 408, 427; Wright v. Hawkins, 28 Tex. 452.

It is no defense that plaintiff has not complied with the law as to making the final payments. It appears that Jacobs and Fisher executed their obligations, as required by the act, for the balance of the appraised value, and that such obligations as have matured have been discharged and paid off, as well as the matured interest thereon. In any event, the defendant is in no position to claim a forfeiture on this ground. Canales v. Perez, 65 Tex. 291, 69 Tex. 676, 7 S. W. Rep. 507.

The act of the legislature of Texas approved April 14, 1883, for the appointment of a land board to investigate all purchases of state school lands held under the acts of 1879 and 1881, cuts no figure in this case. Such an act could operate only as between the state and the purchaser. It would be beyond the competency of the legislature to affect the vested rights of the plaintiff as between him and the defendant by the passage of the act in question.

Section 66 was not included in the applications of August 28th, but was included in one of those of November 25th, and therefore, as to this section, the defendant has shown the better right.

Defendant was impleaded by the name of A. W. Becker. Initials are no legal part of a name, the authorities holding the full Christian name to be essential. Wilson v. Shannon, 6 Ark. 196; Norris v. Graves, 4 Strob. 32; Seely v. Boon, 1 N. J. Law, 138; Chappell v. Proctor, Harp. 49; Kinnersley v. Knott, 7 C. B. 980; Turner v. Fitt, 3 C. B. 701; Oakley v. Pegler, (Neb.) 46 N. W. Rep. 920; Knox v. Starks, 4 Minn. 20, (Gil. 7;) Kenyon v. Semon, (Minn.) 45 N. W. Rep. 10; Beggs v. Wellman, 82 Ala. 391, 2 South. Rep. 877; Nash v. Collier, 5 Dowl. & L. 341; Fewlass v. Abbott, 28 Mich. 270. This loose method of pleading is not one to be commended, but, as no advantage was taken of it in the court below, it will not be considered here.

The decree of the circuit court, except as to section 66, is therefore reversed, and the case remanded for further proceedings in conformity with this opinion. 

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