This is a motion to file a petition for a writ of mandamus, and we are of opinion the motion should be refused.
The petition alleges that the relator has made application to the respondent, as Commissioner of the General Land Office, to purchase, under the provisions of article 3498j of the Revised Statutes, a certain section of school land as oil lands, and sets forth specifically and in detail that in making his application he has pursued the requirements provided in that article for the purchase of school lands. It is further averred, in substance, that the section had previously been classified as grazing lands and that in 1895 one J.E. Sparks had made application as an actual settler to purchase it, and having made the first payment and given his obligation for the balance of the purchase money as required by law, he had been accepted as a purchaser, and also that since his purchase he had kept it good by paying all interest and installments as they fell due. It also appears from the petition that this was one of the grounds upon which the relator's application was refused by the respondent. The prayer of the petition is, in substance, that the respondent be commanded to accept the relator's offer and to withdraw the land from market. Sparks is not made a party to the proceeding.
At an early day it was decided by this court that a writ of *Page 493 mandamus would not be awarded to compel the Commissioner of the General Land Office to issue a patent when it appeared that there were adverse claimants to the land who were not made parties to the suit. Commissioner v. Smith, 5 Tex. 471. For the reason that Sparks was not made a party, the motion to file the petition is denied.
The relator may amend his petition and make Sparks a party and file a new motion. Should he see proper to do so, we invite argument and the citation of authority upon the question whether in a proceeding of this character we can determine the case and issue the writ where there is an adverse claimant to the land.