This is an action by appellee, McAuley, in trespass to try title, for the recovery of survey No. 808, State school land, located by virtue of certificate 3-132, G.H. H. Railway Company, situated in Runnels County.
Appellant answered by general demurrer, general denial, and plea of not guilty, and specially pleaded the fraudulent purchase by appellee from the State, and alleged that the land was not on the market at that time. Verdict and judgment below were in favor of the appellee.
Plaintiff's title consists in the ownership of a pre-emption claim of 160 acres, patented to one W.G. Green on March 10, 1888, which was, by deed of date January 25, 1889, conveyed to appellee. The land in controversy, school section No. 808, is situated within five miles of the above described land; and was on the 21st day of August, 1897, and prior thereto, a part of the school land of the State of Texas, and was on that date duly and legally classified as dry grazing land and appraised at $1 per acre; and was by the Commissioner of the Land Office, on August 21, 1897, duly listed with the county clerk of Runnels County, and placed on the market for sale.
On the 10th day of May, 1899, and prior thereto, the appellee was the head of a family and actually residing upon his pre-emption claim as his home with his wife and children, and upon the last named date he made his application in due form to purchase school section No. 808 as additional land, which application was filed in the General Land Office on the 11th day of May, 1899, and the award of the land was made to the appellee by the Commissioner of the Land Office on the 22d day of July, 1899. On May 10, 1899, the appellant in due form, at the time he made his application to purchase the land in controversy, accompanied the same with the oath required by the statute, and executed his obligations for the payment of the purchase money in the terms required by law, and has made all payments of principal and interest as required, all of which, together with the obligations, were received and accepted by the officers charged with the custody of such papers and with the collection of such payments.
There is in the record evidence of an application by appellant to purchase the land in controversy made subsequent to the date of appellee's application, but before the actual award to him by the Commissioner of the Land Office. Appellant's application was accompanied with the proper oath, showing that he was the head of a family and intended the land as his home, and that he had actually settled upon the same. It is also shown that he executed the obligations and made the payments required.
The sixth assignment of error complains of the charge of the court in instructing a verdict in favor of the plaintiff. The facts as above stated authorized such instruction. These facts are sufficient to establish *Page 258 title in the plaintiff. They were not seriously contradicted, nor was there any evidence tending to establish title in appellant superior to that of appellee.
The first assignment of error complains of the ruling of the court in declining to admit in evidence a certificate of the Commissioner of the Land Office, offered by the appellant, in effect showing that the land in controversy had been, previous to the application of appellee, sold to one A.J. Moore as an actual settler, and was canceled by the Commissioner on account of abandonment on July 7, 1899, and was placed on the market, without change of classification, July 7, 1899. The object and purpose of this evidence was to show that at the time that appellee applied to purchase the land it was not on the market. Plaintiff's objections to this certificate, which were sustained, are, because it was not admissible for the purpose of showing a valid and legal sale to Moore; that it was not the best evidence of that fact nor of the abandonment by Moore; and because it states the conclusion of the Commissioner.
The certificate does not purport to set out the facts as appeared from the records of the Land Office which constituted a sale to Moore; but is simply to the effect that the land in controversy was, on November 3, 1897, sold to A.J. Moore as an actual settler upon his application to purchase the same under the Act of May 19, 1897; which sale was canceled for abandonment on July 7, 1899, and states that these facts are shown by the records of his office.
We think the objections to this certificate were well taken. A bare certificate of the Commissioner of the Land Office to the effect that land has been sold is the conclusion or opinion of the Commissioner, based upon the many steps that must be taken by the purchaser of school lands in order to acquire title. In pursuance of the provisions of the law upon that subject, the Commissioner of the Land Office may furnish a certified copy of his records, or a certificate stating any facts that appear from his records, which under the statute may, in a proper case, serve as evidence; but we know of no case that goes to the extent of authorizing the certificate of the Commissioner, stating his conclusion from the combination of facts that appear from records in his office, to be used as evidence of title. Buford v. Bostick, 58 Tex. 67; Smithwick v. Andrews,24 Tex. 495. This certificate is all of the evidence which was offered to show that the land had been, prior to the application of appellee, sold to other parties and thereby withdrawn from market. It is shown by the facts that the lands were placed upon the market, and unless they were withdrawn by the sale to Moore they continued to remain upon the market for sale and were in that condition when the appellee made his application to purchase.
We have examined into the assignments of error which relate to the action of the court in refusing to permit the witness Towner to testify, and the remaining assignments of errors, and conclude that they are not well taken. Therefore the judgment of the court below is affirmed.
Affirmed. *Page 259