This is an action in the ordinary form of trespass to try title by the appellants Lewis and Brearley, against appellee Heath, to recover section 38, block G, in Gaines county. The case was tried without a jury and judgment rendered in favor of the defendant. Findings and conclusions were not filed by the trial court, and the record does not disclose the theory upon which the judgment was based. The facts are undisputed. There was offered in evidence by the plaintiffs, without objection, a certificate by the chief clerk and acting commissioner of the general land office certifying that the papers, documents, and records of said office show that the land in controversy was awarded to Heath January 10, 1917, at $7.54 per acre, as his home tract, classified as mineral and agricultural, and appraised at $6 per acre; that Heath made the required proof of occupancy and improvements, and certificate thereof issued February 21, 1920; that the section was forfeited for nonpayment of interest August 20, 1924, and thereafter awarded appellant Lewis, October 4, 1924, "on his application filed in this office 2nd September, 1924," at $6.11 per acre, without condition of settlement, classified as mineral and grazing, appraised at $5 per acre; that Lewis conveyed the southwest one-fourth of said section 38 to appellant Brearley, June 22, 1925; "that each of said tracts was cancelled 21st September 1925, account erroneous sale, the land not having been advertised after forfeiture, (Weaver vs. Robison, 268 SWR 133), and the sale of said section 38 to E. W. Heath reinstated on 21st September, 1925, he having paid the interest on said tract to 1st November 1924."
The certificate of the land commissioner shows some other facts which have no bearing upon the rights of the parties and need not be stated.
The sale of the land to Lewis was invalid under the ruling of the Commission of Appeals in Weaver v. Robison, 114 Tex. 272, 268 S.W. 133, but the fourth section of chapter 130, p. 332, Acts Thirty-Ninth Legislature, article 5311b, R.S., effective March 28, 1925, reads:
"In cases where public free school and asylum land has been advertised as being subject to forfeiture for nonpayment of interest and to be forfeited and canceled and come on the market for sale at some future sale date and such land was declared forfeited and the sale canceled on the records of the General Land Office and sale awards issued upon applications filed at such sale date, and said sale award has been held by the Supreme Court to be void and all other sale awards which may be void or voidable or the titles to which may have become defective from any cause, are hereby validated, and when the said land shall be fully paid for together with payment of all fees it shall be patented; *Page 642 provided, in cases where the sale award of the land advertised as aforesaid has not stood one year the owner of said land at date of forfeiture shall have the right to apply to the General Land Office for a re-instatement of said former sale upon the payment of all past due interest at any time within six months after the taking effect of this Act."
The effect of this act was to validate the sale to Lewis subject to the reinstatement right of Heath, as contained in the proviso of the act.
The fourth section of chapter 163 of the Acts of the Thirty-Sixth Legislature 1919, Regular Session (article 5312, R.S. 1925), provides:
"One desiring to buy any portion of the land included in this Act shall transmit to the Commissioner of the General Land Office a separate application for each tract applied for together with the affidavit of the applicant to the effect that he desires to purchase the land for himself and that no other person or corporation is interested in the purchase thereof either directly or indirectly and one-fortieth of the aggregate price offered for the land and the obligation of the applicant in a sum equal to the amount of the unpaid purchase price offered for the land, binding the purchaser to pay to the State at the General Land Office at Austin, Texas, on the first day of November thereafter and on the first day of November of each year thereafter until the whole purchase price is paid, one-fortieth of the aggregate price with interest on the unpaid purchase price at the rate of five per cent. per annum. Upon receipt andfiling of the application, affidavit, obligation and the one-fortiethpart of the price offered, the sale shall be held effective from thatdate. * * * [Italics ours.]"
The certificate of the land commissioner heretofore referred to shows that Lewis' application was filed in the land office September 2, 1924. Therefore, on September 2d 1925, the sale to him had stood for one year, because under the quoted section of chapter 163, Acts Thirty-Sixth Legislature, the sale to him was effective from September 2, 1924.
Under section 4 of chapter 130, Acts of the Thirty-Ninth Legislature, art. 5311b, quoted above, Heath, as against Lewis, had no right to have the former sale to him reinstated after the subsequent sale to Lewis had stood for one year. The certificate of the chief clerk and acting commissioner, above noted, does not show upon what date Heath paid his delinquent interest and applied to have his purchase reinstated. Under the law to which we have referred, he must have made the application and paid the interest prior to September 2, 1925. We find in the statement of facts a letter offered in evidence by appellee Heath, dated September 4, 1925, from the acting land commissioner, to appellees' attorney, as follows:
"Mr. N. R. Morgan, Seminole, Texas. Dear Sir: Yours of recent date received desiring to know just when the interest will have to be paid on Section 38, block G, certificate 2, W. T. Ry. Co., in Gaines County in order to reinstate same. You are advised that the last Legislature passed an act providing that sales might be reinstated within six months from the passage of that Act, which time will expire for you to reinstate on September 27th. Therefore, if you will send to this office $706.85, the amount of interest due to Nov. 1, 1924, on or before Sept. 27th, said sale to you can be reinstated."
The defendant Heath testified:
"I paid the delinquent interest on this land somewhere around the 21st of September. They probably received the money about then. It may have been somewhere around the 17th or 18th when I sent it off. I think my award card was dated the 21st of September. I had been delinquent in the interest and paid that up and was reinstated."
From the letter and this testimony of Heath it is apparent he did not pay the interest and apply for reinstatement until subsequent to September 2, 1925. Therefore, under the Act of the Thirty-Ninth Legislature, he had lost his right to reinstatement as against Lewis. Heath, having failed within a year from the date of the sale to Lewis to apply for reinstatement and pay the delinquent interest, the act of the land commissioner in forfeiting the sale to Lewis was unauthorized and ineffective.
Appellants' first assignment and proposition raising this question are sustained.
The second assignment presents the proposition that the certificate of the commissioner shows that when Heath's purchase was reinstated on September 21, 1925, he did not pay interest to that date, but only to November 1, 1924, the previous interest-paying date under article 5312, R.S. Appellants' contention is that under article 5311b, especially when that is read and construed in connection with article 5326, R.S., the payment of interest to November 1, 1924, was insufficient; that all interest to September 21, 1925, should have been paid, and the action of the commissioner, reinstating Heath upon an insufficient interest payment, was unauthorized and ineffective against the intervening rights of appellants.
In our opinion this assignment raises a serious question, but it is unnecessary to pass upon the same, in view of the ruling upon the first assignment.
The above reflects the view of the majority as to the proper disposition to be made of the appeal, but it is proper we should indicate our reasons for not adopting the views expressed in Associate Justice Walthall's dissent. The general rules of law announced in the dissent are of course recognized.
Nor do we doubt that when the *Page 643 commissioner undertook to forfeit, on August 20, 1924, the previous award to Heath, such forfeiture was ineffective and Heath did not lose title, unless the commissioner made the indorsement and entry required by article 5423, Complete Texas Statutes 1920, quoted in the dissent. That is settled by Chambers v. Robison, 107 Tex. 315, 179 S.W. 123, also quoted in the dissent.
The certificate of fact by the acting commissioner was properly admissible in evidence in proof of the facts therein stated. Article 3722, R.S.; Talley v. Lamar Co., 104 Tex. 295, 137 S.W. 1125; White v. Pyron (Tex.Civ.App.) 62 S.W. 83.
It was admitted without objection and appellee in his brief expressly recognized the competency and sufficiency of the certificate as proof of the facts therein stated, for he says: "The certified statement of the commissioner of the Land Office is admitted in all of the courts and taken as conclusive in the examination of titles to unpatented public school lands in Texas."
Under article 5423, supra, it was made the duty of the commissioner to forfeit the award to Heath and make the proper indorsement and entry when the latter became delinquent in the payment of the interest due November l, preceding the forfeiture on August 20, 1924. That he was delinquent is affirmatively shown by his own testimony quoted in both the majority and dissenting opinions. It is also shown by the certificate of fact. It is also shown by the certificate that the Commissioner undertook to forfeit on August 20, 1924; this was also shown by the county records. It is also clearly inferable from Heath's testimony and the letter quoted in the majority opinion.
We thus have a situation where on August 20, 1924, Heath was delinquent in his interest, and it was the duty of the commissioner to forfeit the previous sale to him and that the commissioner undertook to do so. The only missing fact to affirmatively establish a valid forfeiture is that it was not affirmatively shown that the commissioner made the indorsement and entry required by article 5423, supra. There is not the slightest suggestion that he did not make such indorsements. In the absence of evidence to the contrary, it will be presumed the commissioner did his duty and made such indorsements. This presumption is but an application of the familiar principle that when a public official is charged with a duty and he discharges, or undertook to discharge, that duty, it will be presumed, in the absence of evidence to the contrary, that he did so rightfully and in a lawful manner. Anderson v. Polk (Tex. Sup.)297 S.W. 219, and cases cited.
This principle has often been applied with respect to the acts of the land commissioner. Stoker v. Stoker (Tex.Civ.App.) 254 S.W. 398; Corrigan v. Fitzsimmons, 97 Tex. 595, 80 S.W. 989; Clements v. Robison,111 Tex. 449, 239 S.W. 902; White v. Pyron, supra.
Upon the facts affirmatively and conclusively here shown the presumption arises that the commissioner made the indorsement and entry required by said article 5423. Especially is this true when this record in every feature reflects the fact that upon the trial all parties proceeded and tried the case upon the theory that a valid forfeiture was effected on August 20, 1924.
For these reasons the majority are of the opinion the case cannot be affirmed upon the theory of the dissenting opinion.
Before closing it is perhaps proper to call attention to the fact that the forfeiture on November 10, 1925, and subsequent resale to Heath, as stated in the dissent, was under the Revaluation Act of 1925, c. 94, p. 267, and does not affect the rights of the parties.
Upon retrial it may be appellee can show that a valid forfeiture of his land was not effected on August 20, 1924, for failure on the part of the land commissioner to make the proper indorsement and entry. If so, Heath did not lose his then existing title and appellees never acquired any title. Chambers v. Robison, supra.
Therefore the case will not be rendered, but remanded for retrial, that the facts upon that issue may be fully and certainly shown.
Reversed and remanded.