dissenting.
The majority opinion announces the general rule that constructive eviction which will serve as the basis of a suit for breach of a covenant of general warranty has two elements, *80(1) a positive assertion of a paramount title and (2) a yielding to that assertion. That is the generally accepted rule. The problem here is the application of that rule in cases in which the land is public land possessed by the State for the purpose of sale. In support of the general rule announced, the majority cite Rancho Bonito Land, etc., Co. v. North, 92 Texas 72, 45 S. W. 994; Jones’ Heirs v. Paul’s Heirs, 59 Texas 41; and Clark v. Mumford, 62 Texas 531, and hold that the decision of the Court of Civil Appeals that the facts of the instant case establish the legal equivalent of an eviction, is in conflict with those cases. With that holding I cannot agree.
So far as my investigation extends, in applying that rule to dealings in public lands possessed by the State for sale only, the cases generally are agreed on some such statement as that found in 21 C. J. S. Covenants, Sec. 112, b (4), p. 980, as follows:
“Where the title to land attempted to be conveyed is in the public, there is such a hostile possession as amounts to an eviction the instant the deed is made. * * * An eviction or the equivalent thereof may consist of: The final decision of the land department upon questions of title; a sale of land by the goverenment; the action of the state, through its duly constituted authorities, in forfeiting a survey; * * *”
In effect, that same statement is found in 14 Am. Jur., Covenants, Conditions, and Restrictions, Sec. 74, p. 536, and Thompson on Real Property, Vol. 4, Sec. 3542. It is also announced in these cases, among others, from other jurisdictions: Staub v. Tripp, 248 Mich. 45, 226 N. W. 667, 248 Mich. 45; Crawford County Bank v. Baker, 95 Ark. 438, 130 S. W. 556; Cover. v. McAden, 183 N. C. 641; 112 S. E. 817, West Coast Mfg. Co., West Coast Imp. Co., 25 Wash. 627, 66 Pac. 97, 62 L. R. A. 763; Butler v. Watts, 13 La. Ann. 390; Kansas Pac. R. Co. v. Dunmeyer, 19 Kans. 539; Green v. Irving, 54 Miss. 450, 28 Am. Rep. 360; Elliott v. Thompson, 63 Idaho 395, 120 Pac. (2d) 1014; Beecher v. Tinnin, 26 N. M. 59, 189 Pac. 44; Ernest v. St. Clair 71 Colo. 353, 206 Pac. 799; McGary v. Hastings, 39 Cal. 360, 2 Am. Rep. 456; Baker v. Johnson, 178 App. Div. 230, 165 N. Y. S. 225.
There is also cited in Corpus Juris Secundum, in support of the text, Shannon v. Childers, (El Paso) 202 S. W. 1030, (error refused). That case will be discussed later on in this opinion.
*81The majority reject all the above cases because, for one reason, they say that some of them are subject to the criticism that they disregard the distinction between the breach of a covenant of seisin and the breach of a covenant of warranty of title. I cannot join in that criticism. To my mind they reflect a keen discernment of the underlying reasons for the general rule announced by the majority and make proper application thereof to situations in which public lands are involved.
In some of the cited cases it was held that an eviction occurred the instant the deed was made. Such holdings resulted from the application of a principle long ago announced by this court and still adhered to without exception. In Jones’ Heirs v. Paul’s Heirs, supra, one of the principal cases relied upon by the majority, it was held that, “* * * When, at the time of the conveyance, the grantee finds the premises in possession of one claiming under a paramount title, the covenant for quiet enjoyment or of warranty will be held to be broken without any other act on the part of either the grantee or the claimant. * * *” That rule was reaffirmed by the Waco court in Freeman v. Anderson, 119 S. W. (2d) 1081, 1083. The authorities correctly apply that identical principle to cases in which title is in the United States or in a state. When land is shown by field notes on file and maps in the General Land Office, or by some other approved manner, to be vacant public land, offered for sale by the statues, the State is then in possession thereof in legal contemplation and a purchaser could not take possession thereof without becoming a trespasser, could acquire no title thereto by limitation and, therefore, is held to be legally evicted on the very day the deed is made to him without any other act. To my mind the analogy is perfect.
In other cases it is held that some other act is necessary in order to work an eviction. They rest upon the same reasoning as that outlined above. When, in a case like the instant one, the warrantee takes physical possession of public land but which is thought to be privately owned and which is not shown by field notes or maps in the land office to be public land, it would be inequitable to hold that he is evicted on the day the deed is executed to him, because, at that time there has been no knowledge on his part and no assertion by the State of its paramount title. But when it has been determined by statutory methods that same is public school land and it is awarded or sold to another, there is then a positive assertion of its paramount title by the State equivalent to an eviction.
*82The majority say that,-even if that be an assertion of the paramount title by the State, no cause of action would arise on the warranty until the warrantee in possession yields thereto. Let us examine that question. Why, in suits for breach of covenant of warranty to private lands, has it been held necessary for the warrantee to show that he has yielded to a superior title? The answer is that his possession may ripen into title by limitation. McGregor v. Tabor, 26 S. W. 443. As long as he clings to that possession he cannot maintain his action, for, if it ripens into limitation title, same will inure to the benefit of the warrantor. In Staub v. Tripp, 248 Mich. 45, 226 N. W. 667, 668, the Supreme Court of Michigan made application of that rule to a case like the instant one in this clear language:
“The defendants further assert that plaintiff had not been evicted before this suit was brought, and therefore he is not entitled to relief. The rule of law that a grantee cannot maintain a suit for breach of title to land prior to his eviction cannot be invoked in this case because the title to the fee is held by the state, and as against the state the plaintiff cannot acquire title by adverse possession.” I think that is sound.
To make plain my views respecting this question of eviction, suppose A conveys by warranty deeds one tract to B and another tract to C and it is later determined from surveys that a portion of each tract is public school land, and suppose that B and C each sues A for breach of warranty. B has abandoned his possession and yielded to the paramount title but C has not. In order to recover, each must prove that paramount title rests in the State. Each makes that proof. Would relief be granted B on the ground that he had yielded to that paramount title and denied C because he had not? Surely not. Whether or not C had yielded would be of no importance whatever, since his continued possession could not ripen into title.
I cannot escape the conclusion that the authorities from other jurisdictions give full recognition of the general rule relied on by the majority and make proper application thereof. In my view they are sound and we should not set ourselves apart in opposition to them.
But the majority hold, as 1 understand their opinion, that the decisions from other jurisdictions do not apply in Texas, because, (1) the laws of this State are peculiar with respect to the sale of public school land; (2) the making of an award by the Commissioner is not a sale; (3) it does not even have the *83dignity of an authentic and hostile assertion by the State of its title; (4) the Commissioner is not invested with discretion in making sales of school land; (5) the award is of but little consequence until the lapse of one year; (6) neither the award nor the making of a sale should be given the effect of an ouster, especially of unsurveyed lands; (7) the making of an award by the Commissioner is but “the tentative act of a ministerial officer”; (8) but even if the award were an assertion of title by the State, there was no constructive eviction because Schneider did not yield to it; (9) the institution of suit by the Attorney General constitutes the most authenic assertion of the State’s title. I find myself unable to agree with those' conclusions. It should be kept in mind that the controlling question is whether or not the State has asserted its title. All other questions are merely argumentative of that one except the question of yielding to paramount title which is discussed above.
As I view the statutes and authorities, the Land Commissioner is clothed with broad discretion in determining whether land is unsurveyed public school and and whether same is within five miles of a producing well. Of course, his act in issuing an award after it has been decided that an applicant is entitled thereto is ministerial, but that is beside the point. It is the award based upon the decision which is the assertion of title and the Commissioner exercises discretion in determining whether or not the award should issue. The principal cases cited by the majority in support of their conclusion that his acts are ministerial are: Short v. W. T. Carter & Bro., 133 Texas 202, 126 S. W. (2d) 953; Camp v. Gulf Pro. Co., 122 Texas 383, 61 S. W. (2d) 773; Caples v. Cole 129 Texas 370, 102 S. W. (2d) 173, 104 S. W. (2d) 3. Without discussion, I quote from those cases. The Short-Carter case quotes with express approval from McKamey v. Aiken, 118 S. W. (2d) 482, the following:
“It is thus seen that upon an application being filed to buy or lease school land the Land Commissioner is given authority to determine whether the land conveyed by the application is vacant and belongs to the State. To control the discretionary action of the Land Commissioner through the processes of the courts in this regard is to control the State itself. This cannot be done absent legislative authority. It is therefore believed that this action is in reality one against the State, since its primary purpose is to preclude the Land Commissioner of the State of Texas, in his official capacity, from performing his discretionary duties enjoined upon him by law; that is, to determine the ownereship of the land covered by the application.”
*84From the Caples-Cole case, I quote:
“It is well known that the Land Commissioner is frequently-called upon to exercise his judgment and discretion in performing the duties placed upon him by law, and the courts are slow to disturb him or his action in the exercise of his judgment and discretion. DePoyster v. Baker, 89 Texas 156, 34 S. W. 106. If the facts raised a reasonable dispute as to whether the land is ‘within five miles of a well producing oil or gas in commercial quantities/ and the issue of fact was presented for determination, the finding by the Land Commissioner upon such issue would be conclusive, unless such finding is clearly illegal, unreasonable, or arbitrary.”
The Camp case decides that the Commissioner has discretion in determining whether a vacancy exists, but. that he has no discretion in the matter of whether or not he must respect a final, valid judgment of a district court. The holding is reflected by this language:
“That our interpretation of the act is a correct one is apparent when we consider the fact that in the first instance the land commissioner is allowed to exercise his discretion in determining whether a vacancy evists, and it would be unreasonable to hold that it contemplated he should still possess such discretion after a court of competent jurisdiction had adjudged otherwise.”
Do the majority now have views different from these?
I cannot subscribe to the theory that an award by the commissioner is a tentative act of but little- consequence until the lapse of one year. On the contrary, it is my view that an awardee acquires a title to the land similar in many respects to that acquired by a vendee in a warranty deed with vendor’s lien retained. The superior title remains in the State until the awardee discharges his obligations just as it remains in a vendor until the purchase money notes are paid, but the awardee acquires a title upon which an action of trespass to try title may be based and which may be lost by limitation. My understanding of the law is reflected by this language taken from the opinion in Whitaker v. McCarty (Comm. Apps.) 221 S. W. 945, 946:
“It has been definitely established by our Supreme Court that a purchaser from the state, before the issuance of a patent, has title sufficient, through the sale and award, to maintain an *85action in trespass to try title, and that his title is subject to divestiture through adverse possession, notwithstanding the state cannot be thus barred. Dutton v. Thompson, 85 Tex. 115, 19 S. W. 1026; Thompson v. Dutton, 96 Tex. 205, 71 S. W. 544; Parker v. Brown, 80 Tex. 557, 16 S. W. 262; Patterson v. Rector, 127 S. W. 561.”
This court in Callahan v. Giles, 137 Texas, 571, 155 S. W. (2d) 798, pointed out that, since the amendment of Article 2603 in 1921 the limitation period of one year within which an award may be attacked applies to the State as well as to a private citizen. What the purchaser receives is a written evidence of title with the period of limitation of actions to attack it limited to one year, instead of the usal four years. Pohle v. Robertson, 102 Texas 274, 115 S. W. 1166, from which the majority quote seems to me to emphasize the strength rather than the weakness of an award. The import of that decision to my mind is opposite to that ascribed to it by the majority. In that case the plaintiff legally purchased the land from the State in January, 1900, and later on in the same year the State, through the land commissioner, sold it to the defendant. What was held was that the first sale took the land off the market and the commissioner had no authority to make a second sale. While the first sale remained outstanding, an attempt by the commissioner to make another sale did not convey even a color of title to the purchaser. The language of that opinion quoted by the majority has reference to an attempted second sale and not to an original award.
The same question was presented in State v. Bradford, 121 Texas 515, 50 S. W. (2d) 1065. It was decided in that case that to annul an award requires the exercise of judicial authority, and that the land commissioner cannot permit others to acquire any rights in land covered by an award until same is set aside by a judicial decree. I cannot reconcile the above holdings with the conclusion that the award is of but little consequence until the lapse of one year. The provision for a one-year period of limitation is not a restriction on the title, but a restriction on any, including the State, who would attack it. It shortens the usual period.
The majority say that the award by the commissioner does not even have the dignity of an assertion by the State of its title. That is the vital question. The land commissioner is a constitutional officer clothed with authority to dispose of public lands *86in accordance with the statutes. If his acts, within the terms of the statutes, in determining that a tract of land belongs to the public schools and in awarding same to another than the person in possession, after notice and a hearing, and the acceptance by him for the State of cash as a part of the consideration for the sale of the land are not an assertion of title by the State, then it is difficult to imagine what would constitute an assertion. As observed by the Supreme Court of Mississippi in Green v. Irving, 54 Miss. 450, if that is not the only method certainly it is the most natural and approved one by which a State could assert its title. The majority recognize the established rule that an award is prima facie proof of title. To me it is inconsistent to hold that an award proves title, prima facie, but does not assert it.
But the majority say that, since Article 5420 of the Revised Statutes makes it the duty of the attorney general to institute suits for the recovery of public lands claimed adversely to the State, the institution of suit by him is the most authentic and effective assertion of the State’s title. If that is correct, then there has been no assertion of the State’s title, and therefore no eviction in this case until now, for no suit has yet been filed by the attorney general under that Article. It is the duty of the commissioner and not the attorney general to sell public lands and it is not perceived why his act in doing so is a less authentic assertion of title than the filing of a suit by the attorney general. But the question is not one of degrees of authenticity, it is simply whether or not the commissioner has any authority to assert title and surely, from my viewpoint, he has. I thought this question was finally set at rest in the Short-Carter case, supra, where it was held that that Article had no relation to the commissioner’s authority, and that he could sell the land even while a suit brought by the attorney general under' that. Article was pending. ' .
The pendency of the suit between petitioner and Sansing-did not toll the statute as against respondent. City of Beaumont v. Moore, 146 Texas 46, 202 S. W. (2d) 448. In Luling Oil & Gas Co. v. Humble Oil & Refining Co., 143 Texas 54, 191 S. W.. (2d) 716, this court held that:
“The accrual of a cause of action means the right to institute and maintain a suit, and whenever one person may sue another a cause of action has accrued. Port Arthur Rice Milling Co. v. Beaumont Rice Mills et al, 105 Texas, 514, 143 S. W. 926.”
*87From the date when petitioner had the right to sue respondent limitation was running against him and no act on his part could arrest it.
To hold that limitation began to run against petitioner on his cause of action against respondent for breach of warranty-on the day the land was awarded to Sansing would not have the effect of forcing a covenantee who chooses to contest the title of an awardee to run the risk of losing his right to recover from the warrantor in the event he is unsuccessful in his suit, for he may preserve all his rights against the warrantor from the bar of the statutes by impleading him in his suit against the awardee, Norton v. Collins, 1 Texas Civ. App. 272, 20 S. W. 1118; McCleary v. Douglas, 5 Texas Civ. App. 492, 24 S. W. 367; Blount v. Bleker, 13 Texas Civ. App., 227, 35 S. W. 863; Compton v. Rahl, 94 S. W. (2d) 194; Case note 15 Tex. Law Review, pp. 147, 148.
There is yet another all sufficient reason, as I view this case, why the judgments of the lower courts should be affirmed, and that reason is that an application of the rule of stare decisis requires it. As pointed out earlier in this opinion, Corpus Juris Secundum cites in support of the general rule upon which this dissent is based; the case of Shannon v. Childers, 202 S. W. 1030, (error refused). I have inspected the application for writ of error in that case. It discloses that a strong attack was made upon the holding of the Court of Civil Appeals that the action of the commissioner in forfeiting 'a survey in legal contemplation amounted to an eviction. It was urged that such holding was in direct conflict with Jones’ Heirs v. Paul’s Heirs, supra; Rancho Bonito Land Co., North, supra; and Clark v. Mumford, supra. Those are the identical cases with which the majority hold the opinion of the Court of Civil Appeals in this case conflicts. The suit in that case, as in this, was upon a covenant of general warranty. The facts of the two cases are not identical, but the principles of decision are identical. I take it that the majority mean to overrule Shannon v. Childers, for their opinion states that that case “* * * contains statements inconsistent with conclusions which we have expressed.” There is certainly no dictum in the opinion in the Shannon v. Childers case, and to overrule the statements made therein is to overrule the case itself. In my view, that case should not be overruled, but should be held to govern the instant one on the principle of stare decisis.
*88To summarize my views on the controlling- questions: (1) The decision of the Court of Civil Appeals that the sale of the land to Sansing operated as the legal equivalent of an eviction of petitioner is in harmony with all the cited cases from other jurisdictions; (2) we should not set ourselves apart in opposition to all other courts, and particularly so, since they but apply principles long recognized as sound by this court; (3) Shannon v. Childers is decisive of this case on the principle of stare decisis and should not be overruled; and (4) uniformity of decisions without working injustice to either warrantors or warrantees will result from an affirmance of this case.
I am in agreement with the final holding of the majority, but not with the ground upon which it is based. That holding is that petitioner owed no duty to respondent to take advantage of the preference right given him by Section 6 of the 1931 Sales Act to buy the land which had been awarded to Sansing. But I do not agree with the implied holding that, if he had exercised that right, the respondent would have been entitled on that account to have the damages mitigated. The majority seem to view this question, just as they do the other questions presented, as though the land were privately owned. In my view, that is not the proper approach to the case. It is my understanding of the law that if Schneider had exercised his preference right to purchase the land, he could still have recovered the full consideration paid by him to respondent therefor, had he timely filed his suit. Wheeler v. Styles, 28 Texas 240; Rodgers v. Daily, 46 Texas 578.
Reference is made in the majority opinion to an amendment to the 1931 Sales Act passed in 1939. Vernon’s Statutes, Art. 5421c. I do not understand that it is thought that such amendment has any relevancy to the issues of this case. What is written by both the majority and the minority has reference only to the law as it existed prior to that amendment. We are not called upon here to determine what effect, if any, that amendment has on the questions in this case.
I respectfully enter my dissent.
Judge Slatton is concurring therein.
Opinion delivered May 14, 1947.