Certified questions from the Court of Civil Appeals of the Second Supreme Judicial District as follows:
"We deem it advisable to certify to your honors for decision the question stated below, arising upon the facts stated below, in the above cause, now pending before us on motion for rehearing.
"The suit was brought in the District Court by S.D. Smith against *Page 571 Lucy McLain, to recover four sections of school land, 18, 6, 22 and 40, block 2, H. G.N. Ry. Co., in Kent County, and resulted in a judgment denying the recovery sought upon the ground that the land was under lease to the Espuela Land and Cattle Company when both parties applied to purchase it, from which this appeal is prosecuted by Smith. The lease was executed January 26, 1898, and had five years to run. On September 4, 1899, Lucy McLain, a feme sole over 21 years of age, applied to purchase one of the sections as an actual settler and the other three as additional land, complying with the law in such cases, and the lands were awarded to her January 22, 1900; but the court found upon sufficient evidence that she was not an actual settler when she made her application, and did not become such until March, 1900. He also found upon sufficient evidence, that on March 12 and March 16, 1900, S.D. Smith made his applications in due form, complying with the law in all respects, to purchase one of said sections as an actual settler and the other three as additional land, and that he was at the time an actual settler in good faith, as required by law, on the section applied for as his home section, and was otherwise eligible as a purchaser.
"In order to show that the land was on the market and subject to his applications, Smith, plaintiff below, offered in evidence a certified copy from the General Land Office of the following instrument:
"`ESPUELA, Dickens Co., Texas, 4th Sept., 1899.
"`Hon. Chas. Rogan, Land Commissioner, Austin, Texas:
"`I, Fred Horsbrugh, manager of the Espuela Land and Cattle Co., Lim'd, hereby certify that I as manager waive the right as lessee of the following sections 18, 6, 22, 40, all four sections being in block 2 of the H. G.N.R. Co. in Kent County and held by me in lease No. 23662 in favor of Lucy A. McLain who has applied to purchase same; and I further state that this waiver is not intended to apply to any other person.
"`FRED HORSBURG, Manager.'
"In connection with this he also offered testimony tending to show that Fred Horsbrugh was authorized as general manager of the company to execute the instrument, all of which evidence was excluded upon the following grounds:
"`1. Because there is no written authority shown, and Mr. Horsbrugh stated that it did not exist, for Mr. Horsbrugh to convey any estate of inheritance, freehold or otherwise of the Espuela Land and Cattle Company, and without such authority being in writing the transfer is null and void.
"`2. You can not prove authority if it existed, by the agent himself by parol.
"`3. Because there can not be such a thing in law as a waiver of a lease on State school lands to another. *Page 572
"`4. Because without the consent or authority of the landlord, the lessor, there can be no transfer or waiver of the lease.
"`5. Because there could be no cancellation of the lease by any act of the Land Commissioner or the lessor, save and except under the law, by reason of a failure to pay the interest, or by valid sale of the land to a party authorized to purchase it.
"`6. Further than that, the written instrument offered in evidence appears to be a transfer of the lease or a waiver of the lease in favor of the defendant and no other party, and does not appear to have been executed by the lessee, the Espuela Land and Cattle Company, in Dickens County, Texas, or by anyone authorized in writing by that company to execute such a transfer or waiver, but it purports to be the act of the manager of the Espuela Land and Cattle Company, Limited, a different corporation.
"`7. Again the lease can not be waived in favor of an individual so as to affect the validity of that lease and the liability of the lease to the State, or in any event by the consent of the Commissioner of the General Land Office.'
"To this ruling error is assigned, and the question we deem it advisable to certify, in view of the ruling made in the recent case of Tolleson v. Rogan, is whether or not the court erred in excluding this evidence; that is, whether or not this instrument, which the evidence tended to show was executed by authority of the company holding the lease, had the effect of removing the obstacle interposed by the lease to a purchase of the lands as applied for by appellant?"
Answer: The instrument referred to in the question did not remove the obstacle to a purchase of the land by any person other than Lucy McLain. The land being under a valid lease and situated within the "absolute lease district," the Commissioner of the General Land Office could not sell it during the continuance of the lease except by the consent of the lessee. The consent given for the Commissioner to sell to Lucy McLain did not authorize the sale to another. The lessee had the right to limit the consent to a particular person. The attempted purchase of Lucy McLain being void, the lease continued in force. *Page 573