This is an original petition for a writ of mandamus to compel the Commissioner of the General Land Office to cause to be inspected, classified and appraised six certain tracts of school land lying in Crockett County, which the relator desires to purchase under the Act of April 15, 1905.
The undisputed facts, as shown by the petition and answer, are that on February 24, 1898, several sections of school land, amounting in the aggregate to 3,520 acres, and embracing five of the tracts in controversy in this suit, and lying in Crockett County, were by the Commissioner of the General Land Office leased to one Charles Schauer for the term of ten years. On February 28, 1901, the Commissioner, with the consent of the lessee, sold out of the lease all the lands embraced therein, except the five tracts just mentioned.
Also on the 10th of June, 1898, the Commissioner of the General Land Office leased to Schauer three other tracts of school land in Crockett County, containing in the aggregate, 1,920 acres, and including one of the tracts in controversy; and on February 28, 1901, he, with the consent of the lessee, sold one of the tracts embraced in that lease, but not that last mentioned.
The rent on both of the leases has been regularly paid, and the leases have ever since they were executed been kept in good standing, save as to the lands which were sold.
On the 16th day of August, 1905, Schauer assigned both leases to the relator; and, on the 19th day of the same month, relator, desiring to purchase the five unsold tracts in the first lease and one of the two in the second, which remained subject to that lease, gave written notice to the Commissioner, specifying the lands he wished to purchase, and requesting him to have the lands inspected and appraised. This the respondent refused to do, for the reason that in his opinion the relator was not "the assignee of an entire lease," within the meaning of those terms as used in section 5 of the act approved April 15, 1905. (Laws 1905, p. 163.) That presents the question in the case.
So much of the section as we are called upon to construe reads as *Page 509 follows: "An original lessee, or the assignee of an entire lease out of which no sale of one complement of land has been made under this act, may purchase out of his lease at any time the quantity of land allowed to one purchaser under the provisions of this act."
Since the only sales made out of the two leases were made February 28, 1901, it is clear that "no sale has been made of one complement of land under this act," and therefore, if the relator is to be deemed under the facts an assignee of the entire leases, he is entitled to purchase the lands he desires to purchase." That he is not the assignee of the entire original lease is clear; but that he was not the assignee of the entire lease, when the assignment was made, is a very different proposition. Clearly there was no other lessee of any part of the lands after that time. A landlord leases several bodies of land, and with the consent of the lessee withdraws a part and sells them to a third person, the parcels not sold remaining subject to the lease. The lease of the part not sold becomes, in our opinion, the "entire lease," within the meaning of these words as employed in the statute. If a part of the lands subject to the leasehold interest be sublet or assigned, and the remainder be held by the original lessee, or sublet or assigned to another, then neither the first nor second assignee is the assignee of the entire, but the assignee only of the part of a lease.
We therefore conclude that the relator was entitled to purchase the lands in controversy, and that the writ of mandamus should be awarded. It is accordingly so ordered.
Peremptory mandamus granted.