Certified questions from the Court of Civil Appeals of the Third Supreme Judicial District, as follows:
"Appellee W.T. Brown in an action of trespass to try title recovered of appellant Ford section 204, State school land, located under certificate to Beattie, Seale Forwood, in Concho County, Texas.
"Appellee claimed under a rejected application to purchase, made August 23d 1897. The original petition was filed October 25, 1898. Pending the suit appellee sold his interest in the land to John Reed, but the suit was prosecuted to judgment in the name of the original plaintiff.
"Appellant claimed under an accepted application to purchase the section in suit as additional land to his home section No. 2, H.T. B.R.R. Co., in Concho County, said application also being made August 23, 1897, but filed some hours later than the application of appellee.
"Special issues were submitted to the jury, and, based upon their verdict, the court made the following findings of fact:
"`First. I find that the land in controversy was duly classified August 21, 1897, as dry grazing land, and appraised at $1 per acre, and that this classification and appraisement was filed in the office of the county clerk of Concho County, Texas, at 12:45 p.m., August 23, 1897, as per file mark thereon.
"`Second. I find that plaintiff on August 23, 1897, made application to purchase the land in controversy as an actual settler thereon; that said application was in due and legal form and was accompanied by the obligation *Page 541 of plaintiff for 39-40 of the purchase price of said land, which obligation was in all respects in due and legal form, and that said application and obligation was filed in the General Land Office of Texas at 12:05 o'clock p.m., August 23, 1897, as per file mark thereon.
"`Third. I find that plaintiff made his first payment on the land in controversy, as required by law, as per finding of the jury, which finding is adopted. (The finding of the jury was that this payment was made on August 23, 1897.)
"`Fourth. I find that at the time that plaintiff Brown made his application to purchase the land in controversy, he was an actual settler thereon, as found by the jury, which finding I adopt.
"`Fifth. I find that the only evidence as to the hour, minute and day of the filings of the applications of plaintiff and defendant for the purchase of section 204 and section 2, is the file mark on said papers, and that the only evidence in this case as to the time the classification and appraisement of the lands, sections 204 and 2, was filed in the office of the county clerk of Concho County, Texas, is the file mark thereon, and that according to said file marks, plaintiff's application was filed August 23, 12:05 o'clock p.m., and defendant's application to purchase sections 204 and 2 was filed at 4:29 o'clock, August 23, 1897.
"`Sixth. I find that plaintiff during the pendency of this suit sold the land in controversy to John Reed, who immediately took possession thereof, and has ever since occupied the same as a home, and that he acquired the same with the purpose and intention of making his home thereon, but that he has never recorded his deed and filed the same with the Land Office.
"`Conclusions of Fact as to Defendant. — First. I find that section No. 2, H.T. B.R.R. Co., in Concho County, Texas, was on September 14, 1895, classified as dry grazing land and appraised at $1 per acre.
"`Second. That on August 21, 1897, defendant Ford made application, which is in due and legal form, to purchase section 2, H.T. B.R.R. Co., as an actual settler thereon, and that his obligation for 39-40 of the purchase price thereof, which was in due and legal form, together with said obligation, was filed in the General Land Office of Texas at 4:29 o'clock p.m., August 23, 1897, as per file mark thereon.
"`Third. That defendant made the first payment on section 2, H.T. B.R.R. Co., to the Treasurer of the State of Texas.
"`Fourth. That section No. 2, H.T. B.R.R. Co., was awarded defendant Ford October 9, 1897.
"`Fifth. That all interest due by defendant on section 2, H.T. B.R.R. Co., to November 2, 1902, has been paid by defendant Ford.
"`Sixth. That on August 23, 1897, at _____ o'clock p.m., Henry Ford made and filed in the General Land Office his application and obligation to purchase section 204, the land in controversy, as additional land to section No. 2, H.T. B.R.R. Co., and that said section 204 is within a radius of five miles of said section 2, and that his application and obligation for said section 204 is in due and legal form. *Page 542
"`Seventh. That defendant Ford made the first payment on section 204 to the State Treasurer. (The jury found that this payment was made on November 2, 1897.)
"`Eighth. That the Commissioner of the General Land Office of Texas, on the ____ day of _________, 1897, awarded to defendant Ford said section 204, as additional land to said section 2.
"`Ninth. That defendant has paid to the State Treasurer all interest on section 204 to November 2, 1902.
"`Tenth. That on April 4, 1901, Henry Ford made and filed in the General Land Office of Texas proof of three years' occupancy of section No. 2, the home section.'
"The foregoing findings of fact, with the addition of the facts as therein found by the jury, we approve.
"The court upon these findings of fact rendered judgment for the land sued for in favor of the plaintiff Brown. It is insisted, under proper assignments of error, that the application of the plaintiff Brown conferred no rights upon him, because it appears to have been filed in the General Land Office before the classification and appraisement was filed with the county clerk of Concho County, where the land was situated.
"Appellant relies upon the decision of the Supreme Court in the case of Willoughby v. Townsend, 93 Tex. 80, which is in line with the decision in Gracey v. Hendrix, 93 Tex. 26.
"Appellee relies upon the expressions contained in the case of Hazlewood v. Rogan, 95 Tex. 295. We note that in the case of Steward v. Wagley, 29 Texas Civ. App., it is suggested by the Court of Civil Appeals of the Second district that the distinction between the case of Hazlewood v. Rogan and the other cases cited may be based upon the fact that in the one case the land was awarded by the Land Commissioner, no other superior application having been filed, while in the others the applications were rejected.
"Upon the above statement and findings of fact the Court of Civil Appeals of the Third Supreme Judicial District of Texas, certifies to the Supreme Court of Texas the following questions:
"1. Was the section of land in suit subject to sale, as provided by Rev. Stat., art. 4218f, until the county clerk of Concho County had been notified of the valuation placed on said section, as provided by Rev. Stats., art. 4218g?
"2. If said land was not subject to sale until said clerk had been so notified, could appellee acquire any interest or title in said land by virtue of his application filed in the General Land Office forty minutes before such notice was received by the county clerk of Concho County, said application having afterwards been rejected by the Commissioner of the Land Office?"
Answer to the first question: The land was not on the market for sale until the notice of the valuation placed upon it was received by the county clerk of the county in which it was situated. *Page 543
Art. 4218f, Rev. Stats., contains this provision: "When any portion of the said land has been classified to the satisfaction of the Commissioner of the General Land Office under the provision of this chapter or former laws, such land shall be subject to sale," etc. Art. 4218g of the Rev. Stats., reads as follows: "It shall be the duty of the Commissioner of the General Land Office to notify in writing the county clerk of each county of the valuation fixed upon each section of land in his county, and in each county attached to it for judicial purposes, which he offers for sale, which notification shall be kept by the clerk in his office and recorded in a well bound book, which shall be open to public inspection." By the language "such land shall be subject to sale," taken in connection with article 4218g, the Legislature intended to express that when classified the Commissioner of the General Land Office should have power to make sale of it in the manner and by the means prescribed by law. The law itself makes the offer of sale of the land by the action of the Commissioner in giving notice to the clerk. The clause, "which he offers for sale," means that the land described in the notice is thereby offered to the public for sale. If we were to construe the language quoted from article 4218f as putting the land upon the market without appraisement, it would be impossible for a purchaser to comply with the law in making his obligation and depositing the advanced payment, because he would not be informed as to the valuation affixed to the land, therefore could not know in what sum to make his obligation or what amount to deposit. The specific requirement of the statute as to the manner in which the application shall be made necessarily implies that the valuation of the land should be determined before the application is presented, and considering the provisions of article 4218g, in connection with such requirements, we think it was the intention of the Legislature, by requiring notice to be given to the county clerk of the valuation, to afford all persons equal opportunity to purchase.
In the case of Willoughby v. Townsend, 93 Tex. 80, the controversy was over a tract of land which had once been sold and for nonpayment of interest the contract had been forfeited to the State. A party desiring to purchase the land made application for it before notice of the valuation was sent to the clerk of the county. It was contended in that case, as in this, that it was not necessary that the notice should be given of the valuation to the clerk before application could be made, but this court held that, the land having been once taken off the market by sale, it was necessary that it should be placed upon the market again which was provided for by article 4218g, requiring the Commissioner of the General Land Office to give notice to the clerk of the county of the value placed upon it. The application which was made before the clerk received that notice was held to confer no right upon the applicant. The court said: "The language italicized implies that the land is to be again placed upon the market. The Commissioner is the officer who is to take this action, and he is required by section 6 to do so by giving notice to the county clerk of each section which he offers for sale." We believe that decision *Page 544 was correctly made, and we can see no difference in the terms of the statute which required the land to be placed upon the market in the first instance and the placing it again upon the market after it had been once sold and the sale forfeited. We regard Willoughby v. Townsend as decisive of this question.
Answer to the second question: As against one who applied to purchase the land after the notice had been received by the clerk the appellee did not acquire any right or title in the land by his application which was prematurely made.