This is a petition for a writ of mandamus to compel the Commissioner of the General Land Office to reinstate the relator as lessee of a certain section of school land in Glasscock County, known as section 38 of the Texas Pacific Railway Company surveys. The facts of the case as shown by the pleadings of the parties are as follows: In May, 1900, the relator had the section in controversy under lease from the state. This lease, according to the terms of the contract, was to expire on the 3d day of June of that year. He also had several other sections under lease which were to run for a longer time. Though none of these leases had expired on the 22d day of May of the year named, he made application to the Commissioner of the General Land Office to lease them all anew for the term of ten years. The application was accepted May 25, and the first annual rent was paid into the treasury and the lease executed by the Commissioner on June 7, next *Page 109 thereafter. After the decision of this court in the case of Ketner v. Rogan (95 Tex. 559), in which it was held that a lessor could not, before the expiration of his lease, surrender it and take out a new lease, this new lease was cancelled as to all the lands except as to the section in controversy.
On the 31st day of January, 1905, the defendant, Sanderson, filed a regular application to purchase this section and complied with all the requirements of the statute with respect to the purchase of school lands. The Commissioner of the General Land Office accepted his application to purchase, thereby treating the relator's lease as if it were void.
The relator's first lease on section 38 terminated on June 3, 1900. The validity of the second, as to this section, depends upon the date at which it took effect or would have taken effect, if not illegal. It seems to us that the statute settles this question. Article 4218r, of the Revised Statutes, contains this provision: "All leases shall be executed under the hand and seal of the Land Commissioner and delivered to the lessee, or his duly authorized agent, and such lease shall not take effect until the first annual rental is paid," etc. So that before this lease took effect the former lease had expired, and the section was subject to be relet. The case seems, therefore, to fall within the principle applied in the case of Hazelwood v. Rogan (95 Tex. 295 [95 Tex. 295]), where it was held that the fact that the application to purchase had been made before the land came on the market did not render the sale invalid, where it had been accepted by the Commissioner after the land became subject to sale and before the right of any third party had intervened.
The case, as we think, is controlled by the decision in West v. Terrell (96 Tex. 548), rather than by that in Fish Cattle Co. v. Terrell (97 Tex. 490). In the former case the lease was applied for before the previous lease had been cancelled, but the lease was executed after the cancellation. It was held that the lease was valid. In the latter there was no cancellation of the old lease, although at the time the new lease was made the old was subject to cancellation. It was pointed out in the opinion in that case, that the purpose of executing the consolidated lease was not to cancel the old lease, but to extend it, and it was upon this point that the case turned. In the case at bar no cancellation was necessary. As we have seen, when the new lease was executed the former had expired by the lapse of the term for which the land was let, and there was no obstacle in the way of a reletting of the section. The fact that it was the purpose of the lessee and the Commissioner to consolidate and extend the leases in this case, can make no difference as to relator's rights in section 38. The lease was good as to that section though void as to the others. The Commissioner in extending the leases, mistook the law and transcended his authority; and the lessee, availing himself of the practice of the department, accepted a lease which was void as to such sections of land as were under lease and good for that in controversy, unless he is to be punished for acting under the ruling of the department with which he was dealing.
It is urged on behalf of defendant, Sanderson, that the relator has a plain, adequate and complete remedy at law, and that therefore the writ of mandamus should not issue. We are of the opinion, however, *Page 110 that the position of the lessor, recognized in the land office as being in good standing with the rights and privileges given by the statute to such lessor, is more valuable than that of a lessor not so recognized, who has sued a rival claimant of the title in a suit at law and has recovered a judgment. (Hazelwood v. Rogan, supra.)
The writ of mandamus is awarded.