Monroe Cattle Company v. Becker
Bill by the Monroe Cattle Company against A. W. Becker to enjoin an action at law for the recovery of certain school lands, and for the cancellation of defendant's patent therefor. The circuit court dismissed the bill, and defendant appealed. Reversed.

Statement by Mr. Justice BROWN: This was a bill in equity to enjoin an action at law for the recovery of the possession of 11 sections of school lands in Shackleford county, Tex., and for the cancellation and annulment of certain patents for the same issued to the defendant, Becker.

By an act of the legislature of Texas of July 8, 1879, as amended by a subsequent act of April 6, 1881, provision was made for the sale of lands set apart for the benefit of the school fund, and for a method of bringing such lands into the market. This method is described in sections 6-8 of the amended act, and sections 9, 10, and 15 of the original act, and is substantially as follows:

(1) The purchaser applies to the surveyor of the county in which the land is situated, describing the land he proposes to purchase, which must not exceed seven sections, and pays the surveyor one dollar.

(2) The surveyor records the application in a book kept for the purpose, and indorses such application, 'Recorded,' giving the date, page, and volume of the record, signs his name thereto, and delivers the application to the proposed purchaser.

(3) The purchaser immediately forwards the application to the state treasurer, together with one twentieth of the appraised value of the land.

(4) The treasurer enters a credit in his books for the amount received, giving a description of the land, and then issues his receipt for the money, and forwards it, with the application, to the commissioner of the general land office.

(5) The commissioner of the general land office files the application and receipt in his office, and issues his own receipt in lieu thereof, setting forth the amount paid to the treasurer, and the quantity and valuation of the land applied for.

(6) This certificate or receipt authorizes the surveyor to survey the land embraced in the original application.

(7) The surveyor is then required to enter the same on his books as sold, and is forbidden to entertain another application for such land until notified of the forfeiture.

(8) The applicant is required to make his first payment of one twentieth, or the whole, as the case may be, of the value of the land, and present the receipt of the commissioner of the general land office to the surveyor within 90 days from the date of the record of his application, and, if he fail to do this, the land is again treated as for sale, and the surveyor is authorized to receive applications for its purchase.

(9) No person can renew his file, nor file on the same land more than once in 12 months, nor can he renew his file in the name of any other person. All applications for the purchase of lands are required to be made in the real name of the person intending to be the actual purchaser thereof.

(10) Upon the receipt of the application by the surveyor, the purchaser is required to execute his promissory note payable to the governor, for the balance of the appraised value of the land, which note is forwarded to the commissioner of the general land office, and registered in a book, and then delivered to the treasurer of the state to be filed in his office.

Under the provisions of these acts no one person could purchase more than seven sections of land.

On November 25, 1882, one J. A. Rhomberg, (whose Chrstian name does not appear,) a resident of Iowa, but engaged in the construction and operation of a railroad in Texas, made application for the purchase of seven sections of the land in question on behalf of Maggie L. Rhomberg, and also made application for the remaining four sections on behalf of one Frank Robinson, and filed the same with the surveyor of the county pursuant to these acts. The surveyor received and recorded the applications, indorsed them as recorded, and returned them, duly indorsed, to Rhomberg, who was acting as agent of both of these applicants.

Prior to this time, however, and as early as February 28th of the same year, Rhomberg had made application for the same land in the names of different persons; had allowed these applications to lapse by the nonpayment of the twentieth of their value within 90 days; and on the 29th and 30th of May had made other applications in the names of other persons, and had also allowed these to lapse by nonpayment; and again, on the 28th of August had made other applications in still other names, and in this way had kept the lands out of the market, until November 25th, when he made the final applications above stated.

Before any further action was taken upon the last applications, and on January 2, 1883, one F. B. Jacobs, and on January 8th, one Malinda Fisher, filed their applications with the surveyor for the purchase of the same lands. The surveyor recorded these applications, indorsed upon them a memorandum of such record, and returned them duly indorsed to the applicants.

On January 9th these applications of Jacobs were delivered to the state treasurer, and first payments were made on each of the sections applied for in his name. The applications of Malinda Fisher were also delivered to the state treasurer, the date of which does not exactly appear, but the first payments were also made upon these applications before January 18th. The treasurer received the applications and first payments of Jacobs and Fisher, made the proper entries in his books, issued his receipts for the money, and forwarded the receipts and applications to the commissioner of the general land office. The commissioner received and filed the applications and receipts, made the proper entries upon his books, and delivered his certificates in lieu of said receipts, all within less than 90 days from the original applications of November 25th.

On January 18th, a few days after the applications of Jacobs and Fisher, but less than 90 days after his last application of November 25th, Rhomberg presented his applications duly indorsed to the state treasurer, and tendered to him the first payments required by the act to be made upon each of the 11 sections. The treasurer refused to receive such applications, or to accept the money, giving as his reason for such refusal that previous payments had been made upon these sections in the names of Jacobs and Fisher.

Rhomberg did not abandon these applications, but continued to press them, and made repeated tenders to the state treasurer, who, after several refusals, finally, on February 17, 1885, received the applications, accepted the first payments, made all the entries required by law regarding the same, issued his receipts for the payments, and forwarded the applications, with the receipts, to the commissioner of the general land office. The commissioner of the general land office ruled at first that first payments could not be received from two different applicants for the same sections, but finally withdrew this ruling, and accepted the tender made by Rhomberg on February 17, 1885.

The title of Maggie L. Rhomberg and Frank Robinson became subsequently vested by intermediate conveyances in the defendant. Becker, who, in May and June, 1886, made full and final payments to the state treasurer of the purchase money, and letters patent were subsequently, and in the years 1886 and 1887, issued to him by the proper officers of the state of Texas for the whole 11 sections.

On March 12, 1883, Jacobs and Fisher conveyed the sections for which they had applied to the Monroe Cattle Company, which inclosed the land in controversy in its pastures, used and occupied the same, and paid taxes thereon, but made no further effort to perfect its claim to the land, nor made any further payments of purchase money, either of principal or of interest, although, under the acts of 1879 and 1881, payments of interest were required to be made on or before the 1st day of March of each year upon all purchases of school lands, the appraised value of which had not been fully paid.

On February 14, 1887, the defendant, Becker, began an action of ejectment against the Monroe Cattle Company, and on February 1, 1888, the latter filed this bill to restrain Becker from further prosecuting his action at law, to remove the cloud upon its title to the land, and for the cancellation of the patents granted to the defendant. Upon a hearing on the pleadings and proofs the court entered a decree dismissing the bill, and the plaintiff appealed to this court.

A. H. Garland and Heber J. May, for appellant.

W. D. Williams, for appellee.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court. 

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