The appellant was a settler upon the school lands of Marion County, situated in the county of Clay. The appellee having purchased of Marion County the entire survey, brought this •suit to recover of appellant the 160 acres upon which he resided and which was known as block No. 22. The defendant pleaded that he had settled upon the land in controversy in 1877 with his family, and that he had resided there as an actual settler ever since; that as such settler he had always claimed the prior right to purchase the tract, and that he had made repeated attempts to do so; hut that the county had disregarded his offers, and finally made a sale to plaintiff. The plaintiff in a supplemental petition replied that defendant was estopped to claim the right to purchase the land.
Upon the trial the defendant proved his settlement upon the land and introduced evidence tending to show his efforts to purchase from the county. In his pleading he offered to pay for the land, but did not at any time make an actual tender of the money. The court after hearing the evidence instructed the jury in effect that in order to defend against the action the defendant must make an actual tender of the purchase money of the land, and that since he had not done so they should return a verdict for plaintiff. In our opinion the court erred in its instruction. The question of the rights of a settler in a similar case was discussed in *182the case of Perego v. White, 77 Texas, 196, and speaking of the appellant in that case it was said: ‘'He should have pleaded that he was an actual settler upon the lauds at the time they were sold by the county and that he desired to purchase, and should in the suit at least have offered to purchase upon the terms upon which the county sold.”
This indicates, we think, the correct rule. The practice in equity in-similar cases is not to require a tender or a payment into court of the. purchase money. It was so ruled by this court in the case of Spann v. Sterns, 18 Texas, 556. We see no satisfactory reason why the same rule should not apply to a settler who acquires a right to purchase by virtue of a positive provision of law as applies to a purchaser who has acquired his right by contract. On the other hand, a good reason exists why an actual tender should not be required in such cases. The tract claimed by the settler may exceed in quality and value the average of the whole tract, or it may not be so great. He is not entitled nor should he be required to pay the same price per acre as was paid by the purchaser for the whole tract, but should be -held liable to pay such portion of the purchase money paid or agreed to be paid to the county as the value of the-land claimed by him bears to the value of the whole. Hence in most- • cases it may be impossible for a settler to know the precise amount to-tender, should a tender be required. When he pleads bis right he should offer to pay, and the court, if judgment should be given for him, should decree a payment within a reasonable time, and that in default of a compliance his right should cease and be determined.
Without a discussion of other questions suggested by the record, for the error pointed out the judgment is reversed and the cause remanded.
Reversed and remanded.
Delivered October 14, 1890.