The facts of this case are complicated, *Page 492 and the pleadings, in stating them so as to develop the questions of law arising, necessarily involve a great amount of detail which it would serve no useful purpose for us to repeat. A simple statement may be given as follows:
In 1899, Swift Tomlinson, whose rights are now asserted by relator, held various leases from the State of lands belonging to the school fund, the rents upon which were becoming due at different times during the summer and autumn. They desired to lease other lands and to include all of their holdings in a consolidated lease for the term of ten years, the rents upon which would be payable at the same time. Among the existing leases was one including the land in controversy for a term of five years from September 13, 1897, upon which the rent was payable September 13th of each year. The rent had been paid for the year 1898-1899, and that for the next year became due September 13, 1899, but sixty days time from that date was allowed by law for payment before a cancellation could have been made. On the 1st day of September, 1899, Swift Tomlinson made application in writing for a lease, for ten years, of all of said lands including those in controversy already embraced in the lease just mentioned. This application was accepted by the Commissioner on October 7, 1899, and the applicants were duly notified in writing of the acceptance. On the 13th day of October, 1899, Swift Tomlinson paid the rent upon all the lands included in this contract, and in accordance therewith the Commissioner, on November 29, 1899, executed the lease. On some of the leases merged into the new one the rent for the ensuing year had been paid and on some it was unpaid at the date of the application for the consolidation. On some of the latter it had been due more and on others less than sixty days. Those in the condition last named, as was the one specified, were therefore not subject to cancellation. After the decision of this court in the case of Ketner v. Rogan, 95 Tex. 559, the Commissioner was of the opinion that the consolidated lease, so far as it affected the land in controversy, was invalid, and treated the original lease including that land as in force until September 8, 1902, when he canceled it for nonpayment of the rent which was due September 13, 1901. Respondent, Oglesby, then applied to purchase, and again, after the expiration of the term of that lease made a second application, and the land was sold to him. The mandamus is applied for to compel the Commissioner to reinstate the consolidated lease, upon the contention that its issuance was, in effect, a cancellation of the prior lease for nonpayment of rent which had then been due for more than sixty days. We think it clear that such was not the character of the transaction. Before there was any power to cancel for nonpayment, such action was completely forestalled by the arrangement which was made — the application for and award of the consolidated contract and the payment of the money under it. The issuance of the lease was but the completion of that arrangement, and the accidental circumstance that it was issued after the expiration of the sixty days did not alter the character of *Page 493 the transaction. The pleadings clearly show that the parties acted as they did in the Ketner case on the assumption of the power in the Commissioner which was denied by that decision. There was no pretense of a cancellation of the existing lease for nonpayment of rent or for other lawful cause. The case is not like that of West v. Terrell, 96 Tex. 548, in which leases were in fact canceled at the proper time and new leases executed because the rent had been due for more than sixty days. The Commissioner did in that case what in this case he did not. His action in this case was the same as that held illegal in the Ketner case. He was therefore right in disregarding the consolidated lease as it applied to this land and in holding that it was not in the way of a sale. Blevins v. Terrell, 96 Tex. 411 [96 Tex. 411].
Writ refused.