This proceeding was commenced November 1, 1909, by the filing of the motion of relator for leave to file a petition for mandamus against the Commissioner to compel him to award to relator certain sections of school land, which he had applied to buy and which the Commissioner had refused to sell to him for the reason that they were embraced in a lease held by corespondent Fitzgerald.
The respondents, in their answers, assert that the action was not begun within the time prescribed by the statute of 1905. (Laws 29th Leg., p. 35). *Page 392
Treating the action, as we think it should be treated, as having been begun by the filing of the motion accompanied by the petition, we must hold that the position of respondents is sustained by the statute referred to.
The attack made by the petition on Fitzgerald's lease is that it is void under the decisions of this court, especially those in Ketner v. Rogan, 95 Tex. 559, and Fish Cattle Co. v. Terrell,97 Tex. 490, the facts alleged being that an original lease including the lands in controversy was taken for ten years from March 22, 1898, which was kept in force by regular payments of rent until June, 1900, when an attempt was made to supersede it by another lease including the same and other lands for a term of ten years from the last named date. Facts are set up in Fitzgerald's answer which question the applicability of the doctrine of the decisions referred to, but we need not dwell upon them. According to relator's own showing he did not bring his action within one year either from the taking effect of the act of 1905, or from the date of the award of the lease attacked. His counsel argues that he could not have acquired any interest in the land to entitle him to sue until after March 22, 1908, since, if the second lease be regarded as void, the first remained in force and protected the land from purchase until the expiration of the term fixed by it at the date last named. The soundness of this contention may be conceded without conceding the conclusion sought to be drawn from it. If the doctrine in the Ketner case applied to the second lease, it was void; and under other decisions, the first lease, not having been cancelled otherwise than by the execution of the second, remained in force. It may be plausibly contended that, in law, it, and not the second, is the lease to be regarded in determining the question of limitation under the law of 1905, and that, as it is not attacked, that law has no application to the case. This, however, does not meet the difficulty. An "award" had been made of another lease, which has been recognized by the authorities of the State, and which has been the only lease acted on since March 22, 1908. The first lease was no longer in the way of applications to purchase after that date, and therefore not in the way of a suit attacking the second. This action was not begun for more than a year after the time when the right now asserted could have been set up against the lease now attacked and we think the statute applies. After the expiration of the first lease there remained the other which had been awarded and which was being recognized and acted on by the Commissioner as valid. It was within both the language and purpose of the Act. Murphy v. Terrell, 100 Tex. 399. That it would have been declared void upon an attack made in time does not deprive it of the protection of the statute, which was designed to meet just such objections. Wyerts v. Terrell,100 Tex. 410.
Mandamus refused. *Page 393