author: RAINEY, C. J.

text:
    LOW et al. v. LOW et al.
    (No. 7203.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 19, 1914.
    Rehearing Denied Jan. 16, 1915.)
    1. Wins (§ 88) — Wills Distinguished from Deeds.
    An instrument executed and acknowledged by a husband as a deed, whereby he gave, granted, and conveyed to his wife and children all his property on conditions and limitations prescribed, and whereby he declared that he did not intend to convey a present interest, but intended to retain control for life, and, in case of his death, gave, granted, and conveyed a life estate to the wife, to terminate on her remarriage, and, when the title vested in the children, he gave, granted, and conveyed described parts to each child, was a deed within Rev. St. 1911, art. 1111, providing that an estate of freehold may be made to commence in future by deed, and not a will.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 208-217; Dec. Dig. § 88.]
    2. Wills (§ 88) — Wills Distinguished from Deeds — Instruments—Intention of Parties.
    The court, in determining whether an instrument disposing of property is a deed or will, will give effect to the intention of the maker, clea-rly indicated by the language used.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 208-217; Dec. Dig. § 88.]
    3. Wills (§ 93) — Deed or Wili^-Paeol Evidence.
    Where the language of an instrument disposing of property does not clearly express the intention of the maker as to whether the instrument is a deed or a will, parol evidence is admissible to determine intention.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 222-224; Dec. Dig. § 93.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by W. M. Low and others against Sarah A. Low and others. ‘From a judgment for defendants', plaintiffs appeal.
    Affirmed.
    Morrow & Morrow and Collins & Cummings, all of Hillsboro, for appellants. C. L. Allen, of Ennis, C. P. Haynes, and Wear & Frazier, of Hillsboro, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RAINEY, C. J.

This is an action of trespass to try title to a certain tract of land, brought by appellants against appellees. A trial with a jury with an instructed verdict for appellees resulted in a judgment for ap-pellees, and appellants prosecute this appeal.

Appellants claim title to said land by virtue of being heirs of W. M. Low, Sr. The appellees claim "title by virtue of an instrument executed by W. M. Low, Sr., which is as follows:

“The State of Texas, County of Hill.
“Know all men by these presents, that I, Wm. M. Lowe, of the county and state aforesaid, for and in consideration of the love and affection I have and bear for my wife, Sarah H. Lowe, and my two children by her, namely, William M. Lowe and James A. Lowe, do hereby give, grant and convey to my said wife and children all my property real, personal and mixed and choses in action on the express conditions and limitations hereinafter given and set out.
“I do not intend by this deed to convey a present interest to my said wife and children but convey on the limitation specifically hereafter mentioned. I intend to retain control and possession of said property and to manage the same together with the rents and profits arising therefrom as long as I may choose to do so or as long as I may live. In case I choose to do so or in case of my death I then hereby give, grant and convey a life estate in all of said real estate with the limitation hereafter named to my said wife, Sarah, such life estate to terminate at once in case she should again marry. When such event should occur ox-in case of her death then the whole of the property shall go and vest absolutely in fee, to my two said children. And in case my said wife Sarah shall live and remain a widow I do not intend either of the children to sell any part of the land which I intend to convey to them until the said James A. Lowe arrives at the age of twenty-five years. Whenever the title in fee shall vest in my said two children X give, grant and convey to my son, James A., the north half of the following tract of land and to my daughter the south half, to wit: Beginning at the southwest corner of the Alf Atchin-son six-acre lot in Peoria, Hill county, Texas; thence south to a hedge and Sander’s land; thence east to P. Q. Oliett’s line; thence north with Cliett’s; thence west to Atchinson’s line; thence south to Atchjnson’s corner; thence west to the beginning. Said land being parts of the A. Frederic and B. Roberts survey. Also when the title in fee vests in my daughter, Willie M., I give, grant and convey an acre lot in the town of Peoria, Hill county, Texas, with all improvements and appurtenances thereto belonging. Also, when the title in fee vests under the foregoing limitations in my said children I give, grant and convey to my son, James A., my two-acre lot on which I now live, in Peoria, Hill county, Texas, with all the improvements thereto belonging. Also when the title shall vest in fee under the foregoing limitations in my children aforesaid X give, grant and convey thirty-seven and a half acres of land out of the Price survey in Hill county, Texas, lying on the west side of Aquilla creek, to my said children, share and share alike. Also I convey under the same limitation five or six acres of land deeded to me by John S. Patton near the graveyard in Peoria, Hill county, Texas, to my said two children. I also give to James A. and Willie M. each a cow and a calf and to each a horse and give a present interest in them, but I reserve the right to use and control said stock during their minority. I also give all the remainder of the live stock, all personal property, choses in action to my wife, Sarah, to use for herself and children, but I reserve a present interest in and to all this personal property as long as I choose to do so or as long as I live.
“In witness whereof I hereto sign my name this the 3d day of August, A. D. 1897.
“W. M. Low, Sr.
“The writer hereof spelled my name and that of my children wrong. It should be ‘Low’ instead of ‘Lowe.’ W. M. Low, Sr.”
“Witnesses:
“W. N. Howard.
“Jo Abbott.”

Said instrument was duly acknowledged on the day of its execution, and filed for record in Hill county the same day at 2:20 o’clock p. m. The rights of the parties depend upon whether the instrument should be construed .as a deed or whether it is testamentary in character. In the first paragraph of the instrument the maker uses this language, after stating a good consideration:

“Do hereby give, grant and convey to my said wife and children all my property, real, personal and mixed, and choses in action.”

This language is unambiguous, and, if considered without the limitation annexed thereto by the maker, there would be no room for controversy. In the next paragraph he denominates the instrument a deed and makes a condition as follows;

“I do not intend by this deed to convey a present interest to my said wife and children but convey on the limitation specifically hereafter mentioned. I intend to retain control and possession of said property and to manage the same together with the rents and profits arising therefrom as long as I may choose to do so or as long as I may live. In case I choose to do so or in case of my death I then hereby give, grant and convey a life estate in all of said real estate with the limitation hereafter named to my said wife, Sarah, such life estate to terminate at once in ease she should again marry.”

Does the expression, “I do not intend by this deed to convey a present interest to my wife and children but convey on the limitation specifically hereafter mentioned,” show an intention to reserve the title in himself? Or does it show that he intended to convey the property to his wife on condition that she should not marry again should he die, and that he should hold possession of and control it. We think the latter theory the correct one. He nowhere, in express terms, reserves the right to sell or dispose of it, but only to retain possession of and control it The beneficiaries in the instrument are his third wife and two children by her, and he naturally wanted to provide for them, but, being old, he wisely thought best to retain control so long as he might choose to do so, or until he died, so that the property might contribute to his necessities in his old age, and he be not cast adrift without means of support.

Article 1111, R. S., provides:

“An estate or freehold or inheritance may be made to commence in futuro by deed or conveyance in like manner as by will.”

The limitation to retain possession of and manage the same “so long as I may choose to do so or in case of my death,” contained in the instrument, shows that the deed was to be effective on his death, if he did not sooner determine to surrender his right to control and manage it. That he intended to part with the title is further made evident by the expression, “Also when the title in fee vests under the foregoing limitations in my said children I give, grant and convey,” etc. This limitation imposed in the instrument is referred to three times in paragraph 4 in a manner which indicates that the estate should commence at some future time; that is, on the happening of the conditions stated, in the parties named as grantees.

The appellants, in support of their position that the instrument is testamentary and did not convey a present interest, cites, among others, the cases of De Bajligethy v. Johnson, 23 Tex. Civ. App. 272, 56 S. W. 95; Carlton v. Cameron, 54 Tex. 77, 38 Am. Rep. 620, and Wren v. Coffey, 26 S. W. 143.

In the De Bajligethy Case, supra, the court, in construing the instrument there under consideration in connection with the facts adduced, held that it was testamentary, which we think was correct, as the facts therein are different from these herein.

In the case of Carlton v. Cameron, supra. the instrument under consideration was in form a deed, but bad the following reservation :

“N. B. — The said Abner Lee, holding in reserve all the named estate, both real and persona], during the natural Ufe of the said Lee.”
The court held that the instrument was — ■ “testamentary in its character and inoperative as a deed, if the intention of the maker appears to have been that it should take effect only on his death. Looking to the terms of the instrument, the nature of the reservation, and of the estate to be created, and bearing in mind that the court below, acting without a jury, passed upon all questions of fact, we are of opinion that the court did not err in its judgment, if it was based on its opinion that the intention of the maker was that the instrument take effect only on his death, and that it was therefore testamentary in its character.”

In that case there was a reservation of the estate, while in the instrument here there is no such reservation, and in that case the court took notice that it was tried with a jury and “passed upon all questions of fact,” and presumed that its finding was based on the fact that it was the intention of the maker that said instrument would take effect only on his death.

In Wren v. Coffey, supra, the instrument, although in form a deed, contained this provision :

“And all our right, title and interest in and to our homestead, * * * should we not sell or dispose of same before death.”

It was held that the grantor’s intention was not to divest himself of any part of the title. In the instrument here under consideration the grantor does not reserve the right to sell the land, but merely reserves the right to retain possession and manage and control the property granted.

In support of the judgment the appellee cites the following authorities: Ferguson v. Ferguson, 27 Tex. 340; Chavez v. Chavez (Sup.) 18 S. W. 1018; Martin v. Faries, 22 Tex. Civ. App. 539, 55 S. W. 601; McLain v. Garrison, 39 Tex. Civ. App. 431, 88 S. W. 484, 89 S. W. 284; Garrison v. McLain, 112 S. W. 773; West v. Herman, 47 Tex. Civ. App. 131, 104 S. W. 428; Forwood v. Forwood (Ky.) 67 S. W. 842; Weaver v. Osborne, 154 Iowa, 10, 134 N. W. 103, 38 L. R. A. (N. S.) 706.

In construing instruments disposing of property, if the language used therein clearly indicates what the maker intended, the instrument must be so interpreted. If the language does not clearly express the intention, but is doubtful as to what the maker’s intention is, then parol evidence may be resorted to for the purpose of determining.

The fact that the maker of the instrument under consideration acknowledged it as a deed when he had denominated it as such, allowed it to be recorded as a deed, and never questioned that it was a deed, or its recording, during his lifetime, about three or four years, together with the fact that the grantees were his wife and children, should weigh heavily to support the contention that said instrument was a deed.

In the case of Chavez v. Chavez, supra, where the instrument there under consideration contained language indicating it to be a will, while there was contradictory language showing it was intended as a deed, the trial court held it was a will, but the Supreme Court held to the opinion that it was a deed and reversed, and remanded the case. The court, in reviewing the case, laid stress on the fact that the instrument was recorded.

' In the case of Martin v. Faries, supra, in construing an instrument containing the provision, “It is distinctly stipulated, however, that this conveyance is not to take effect until the death” of the parties executing the instrument, the court held the instrument to-be a deed.

In McLain v. Garrison, supra, there was a similar provision in an instrument, and the court construed that to be a deed.

We are of the opinion that the instrument in this case should be held to be a deed, and not a will, and therefore the judgment is affirmed.


source: Caselaw Access Project

author: BROWN, C. J.

license: Public Domain

text:
    ROE v. DAVIS.
    (No. 2381.)
    (Supreme Court of Texas.
    Jan. 20, 1915.)
    Moetgages (§ 350) — Tbust Deeds — Notice oe Sale — Posting—'“Now.”
    Under Rev. St. 1911, art. 3759, providing that notice of sale under a deed of trust shall be given as “now” required in judicial sales, and Rev. St. 1879, art. 2309, then in force, and providing that the time and place of sale of real estate under execution shall be advertised for at least 20 days by posting notices at three public places in the county, one of which shall be at the door of the courthouse of the county, and under a deed of trust requiring notice of sale to be posted, a trustee, Who made out three notices of sale and posted one on the blackboard at the foot of the stairs in the county building in Texarkana, and mailed one to the sheriff to be posted at the courthouse and to a third person to be posted at another place more than 20 days before date of sale, and he mailed a copy of the notice to the grantor in the deed of trust and his wife, and advertised the sale in a newspaper for three weeks, complied with the statute and the deed, and a sale made pursuant thereto is valid; the word “now” in article 3759 meaning the law in force when the article was enacted.
    [Ed. Note. — For other cases, see Mortgages, C’ent. Dig. §§ 10G3-10G7; Dee. Dig. § 356.

    For other definitions, see Words and Phrases, First and Second Series, Now.]
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by Mrs. D. Davis against John Roe. There was a judgment of the Court of Civil Appeals (142' S. W. 950), affirming a judgment for plaintiff, and defendant brings error.
    Affirmed.
    Hart, Mahaffey & Thomas, of Texarkana, for plaintiff in error. Rodgers & Dorough, of Texarkana, for defendant in error.

       For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   BROWN, C. J.

The plaintiff in error owned the lots in controversy, which are situated in the city of Texarkana — it is unnecessary to describe them more particularly in this statement. He borrowed $675, giving his note, payable to Stewart & Rochelle, to secure which he executed and delivered to the said parties a deed of trust, wherein he appointed W. H. H. Moores as trustee, with power to sell and with the power to appoint a substitute trustee. Subsequently the note was transferred to Mrs. D. Davis, the defendant in error, and Moores having removed from that vicinity, R. P. Dorough was regularly appointed as the substitute trustee. At the time the deed of trust was given, the appellant was the head of a family, and testified that he resided on this property, and claimed it as his homestead in this litigation, but it is unnecessary to make further statement with regard to that matter, as it was a question of fact, which the court decided against him.

The lots embraced in the deed of trust were sold at public sale, and were purchased by Mrs. Davis, to whom the note had been transferred. The appellant instituted this suit to recover the property from Mrs. Davis, and alleged that it was his homestead at the time that the deed was made, and that his wife did not join in the sale, which issue was disposed of as above stated. It was alleged that there was no proper notice of the sale given, as required by the statute, and this is the only question that is now before this court.

The court found that the trustee delivered to the sheriff of that county, a notice of the sale, stating, according to law, the time when and place where it would occur, which was, by the sheriff, to be posted at the county seat. He also sent copy to other persons at different places by mail, requesting that it be posted in a public place at each one of the points,named. The action taken was in time to give notice for more than 20 days prior to the date when the sale should occur. The trustee did not see the notices where they were placed, and relied upon the fact that he had sent them to persons whom he knew and had confidence in, believing that they had posted them according to his instructions. There was no'evidence, further, as to the actual posting of the notices. At the expiration of the time given, the sale was made by the trustee in regular order, and the property was bought in by the defendant in error, Mrs. Davis. The only question presented to this court is the plaintiff in error claims that there was not sufficient evidence to show that the statute had been complied with in giving notice of the sale.

The statute under which the deed of trust was executed and the land sold reads:

“Art. 3759. Real Estate Sales under Deeds of Trust, How Made. — All sales of real estate made in this state under powers conferred by any deed of trust or other contract lien shall be made in the county in which such real estate is situated. Notice shall be given as now required in judicial sales; and such sales shall be made at public vendue, between the hours of ten o’clock a. m. and four o’clock p. m. of the first Tuesday in any month.”

In Fischer v. Simon, 95 Tex. 239, 66 S. W. 448, the words “now in force” were declared to mean the law in force when article 3759 was enacted in 1889, which law, thus referred to, was article 2309, Digest 1879, which we copy:

“Art. 2309. The time and place of making sale of real estate, in execution, shall be publicly advertised by the officer for at least twenty days successively next before the day of sale, by posting up written or printed notices thereof at three public places in the county, one of which shall be the door of the courthouse of the county.”

The deed of trust provides:

“And it is further specially agreed by the parties hereunto that in any deed or deeds given by any trustee or substitute duly appointed hereunder, and all statements of facts or other recitals therein made as to the nonpayment of the money secured, or as to the request to sell, the time, the place, terms of sale and property to be sold having been duly published, or as to any other act or thing having been duly done by any trustee, or substitute trustee shall be taken by any and all courts of law and equity as prima facie evidence that the said statements or recitals do state facts, and are without further question to be accepted, and we the said grantors do hereby ratify and confirm any and all acts that the trustee or substitute, or his successors in this trust may lawfully do in the premises by virtue hereof.”

Plaintiff next introduced warranty deed executed August 3, 1909, by B. P. Dorough, substitute trustee, conveying lot No. 6 in block No. 66 in the city of Texarkana, Bowie county, Tex., to Mrs. D. Davis, plaintiff, acknowledged August 7, 1909, filed for record September 21, 1909, and recorded October 9, 1909, in volume 54, page 257, Deed Becords of Bowie County, Texas.

The statement of facts contains the following statement:

“Hon. B. P. Dorough, being first duly sworn, testified as follows:
“Direct examination: I am the B. P. Dor-ough who made this deed as substitute trustee. Q. This deed just states that you advertised this property for sale in the manner prescribed by law: Wish you would state to the court how you did advertise it. A. My recollection is, Mr. Thomas, that we made out three notices; I posted one there on the blackboard at the foot of the stairs, in the county building, in Texarkana, and mailed one to Mr. Bochelle, to be posted here at the courthouse, and to Mr. Smith at De Kalb, to be posted at De Kalb; that we mailed a copy of it to John Iioe and Charity Boe, and then advertised it in the Courier for three weeks.”

We deem this as sufficient evidence to prove a compliance with the terms of the deed of trust in advertising the lots, and also to prove a compliance with the statute quoted above. There is no ground for a reasonable doubt that the sale was properly advertised, and the sale made as provided by the deed of trust and the statute.

The judgments of the district court and Court of Civil Ai>peals are affirmed.


author: BBOWN, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. ALEXANDER
    (No. 2379.)
    (Supreme Court of Texas.
    Jan. 13, 1915.)
    1. Appeal and Ebeob (§ 557) — Weit oe Eb-EOK TO COURT OE CIVIL APPEALS — STATEMENT oe Pacts — Sufficiency.
    The. Supreme Court will not entertain a case on writ of error to the Court of Civil Appeals, where the Court of Civil Appeals does not make a sufficient statement of the facts of the case, but refers to the opinion of the Court of Appeals of another district for the facts.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2480-2482; Dec. Dig. § 557.]
    2. TOETS (§ 15) — INJURIES EEOM PbIGHT — Peoximate Cause.
    Where agents of a railroad company, while acting under instructions from it, entered in the nighttime on the premises of an individual with knowledge of his absence, to investigate an unfounded charge of larceny against him, the agents were trespassers, and the company was liable for mental suffering and physical injuries suffered by the wife arising from fright by observing the agents on the premises.
    [Ed. Note. — Por other eases, see Torts, Cent. Dig. §§ 19-22; Dec. Dig. § 15.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Action by W. J. Alexander against the St. Louis Southwestern Bailway Company of Texas. There was a judgment of the Court of Civil Appeals (141 S. W. 135) affirming a judgment for plaintiff and defendant brings error.
    Affirmed.
    E. B. Perkins, of Dallas, Scott & Boss, of Waco, and D. Upthegrove, of Dallas, for plaintiff in error. Morrow & Morrow and Collins & Cummings, all of Hillsboro, for defendant in error.

      For other cases see same topic anfl section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   BBOWN, C. J.

The Court of Civil Appeals for the Third District has not made a sufficient statement of the facts of this case, but refers to the opinion of the Court of Civil Appeals of the Fifth District, published in 57 Tex. Civ. App. 407, 122 S. W. 572. It is not in accordance with the practice in this court to entertain a case on such a statement as is made here by reference to another opinion for the facts upon which the decision rests; but, as this case has been pending so long since the application was granted, we will proceed to a disposition of it in the condition we find it, with the statement, however,-that this practice will not be indulged hereafter.

From the statement made in the two opinions, we gather the following as the substantial facts developed on the trial: The plaintiff in error had a station at the town of Hillsboro, where it had agents and employes, and seems to have had lumber in connection with its business there; but just what the lumber was for does not appear from the opinion of the court, and, in fact, it is not important in this case that it should. The agent and employés of the railroad company at Hillsboro discovered that some one was carrying away lumber from about the depot and the surroundings of the railroad, and, for some reason, suspicion attached to the defendant in error, W. J. Alexander, who resided in Hillsboro with his wife and one child. The railroad company directed the agent to investigate the matter as to the guilt of Alexander, and sent a detective to Hills-boro to co-operate with the agent and em-ployés there in the investigation of the matter. The detective who was sent for the purpose of investigation visited Alexander’s house on one occasion under the pretense of desiring to buy some chickens, and had Alexander’s wife to go out into the yard to show him the chickens. It appears that Alexander had lumber stacked in his yard, and the inspection of that lumber was, perhaps, the real purpose of the detective. Alexander was away from home, and his wife and one child, 10 years old, and an old man who slept there, were the only persons in the house, which was known to the detective and to the agent of the railroad company. After Mrs. Alexander had retired and was, perhaps, asleep, as she states, about midnight, the detective, the agent, and another servant of the railroad company entered the yard of Alexander with lanterns, and inspected and examined the lumber in the yard. Mrs. Alexander saw them engaged in so doing, and, being alone, became very much alarmed, as she said that she knew that they were seeking evidence against her husband upon the charge of having stolen the lumber. The result was, stated briefly by the court, that she fell to the floor and lay there for an indefinite time, unconscious. A physician was called and attended her for some time, during which time she was suffering a great deal from nervous trouble, the result of the fright that she received through the conduct of the detective, the agent, and the other servant of the railroad company in entering the yard at the time of night that they did, etc. It does not appear that any evidence was obtained as to the guilt of Alexander, and it has not been asserted, so far as we are able to see, by the railroad company, that there was really any ground for suspicion. The .detective and those who accompanied him had no warrant of authority from any court or officer, nor in any way were they authorized by any lawful process to enter upon the premises for such purposes. Consequently, they were trespassers upon Alexander’s home, in his absence, and under the circumstances stated.

There was a trial in the district court of Hill county, at which the presiding judge instructed a verdict for the defendant. That judgment was, upon appeal to the Court of Civil Appeals of the Fifth District, reversed and remanded. At a subsequent trial, Alexander recovered a judgment for $3,000, from which the appeal was takén to the Fifth district, as before, and transferred to the Third district, where the judgment of the district court of Hill county was affirmed, and this writ of error was granted by this court.

There is no controversy about the facts of the ease, and the only question of law is: Was the evidence sufficient to sustain the verdict of the jury as a matter of law? This court, in granting the writ, seemed to take the view of the case that there was not sufficient evidence to show legal liability on the part of the railroad company.

The facts warranted the jury in finding that the servants of the plaintiff in error acted under the instruction of the railroad company, and, without any lawful authority, entered upon the premises of defendant in error, whereby they committed a trespass; that the entry was made to investigate an unfounded charge of dishonesty against the plaintiff in error, and was made when they knew that Alexander was absent, and at the hour of midnight. Liability for the direct consequences cannot be denied, and the only question for this court is: Can plaintiff recover for the mental suffering and physical injury that was suffered by the wife, arising from the fright produced by the unlawful acts of the detective and agent of the railroad company? It would be unprofitable for us to enter upon a discussion of the liability for physical suffering arising from mental condition produced by willful tort. The decisions of other states are in decided conflict; but this court has fully settled the rule to be that, in case of such injury, the wrongdoer is liable for all mental and physical injuries which naturally result from such tort. Hill v. Kimball, 76 Tex. 210, 13 S. W. 59, 7 L. R. A. 618; G., C. & S. F. Ry. Co. v. Hayter, 93 Tex. 239, 54 S. W. 944, 47 L. R. A. 325, 77 Am. St. Rep. 856. The right to recover under such circumstances, for physical suffering caused by fright, is logically and definitely settled in this state by this language, found in the case of Hill v. Kimball, above cited:

“That a physical personal injury may be produced through a strong emotion of the mind ihere can be no doubt. The fact that it is more difficult to produce such an injury through the operation of the mind than by direct physical means affords no sufficient grounds for refusing compensation in an action at law when the injury is intentionally or negligently inflicted. It may be more difficult to prove the connection between the alleged cause and the injury, but if it be proved, and the injury be the proximate result of the cause, we cannot say that a recovery should not be had.”

The rule of liability is also distinctly and forcibly announced in G., C. & S. F. Ry. Co. v. Hayter, 93 Tex. 242, 54 S. W. 945, 47 L. R. A. 325, 77 Am. St. Rep. 856, as follows:

“We conclude that where a physical injury results from a fright or other mental shock, caused by the wrongful act or omission of another, the injured party is entitled to recover his damages, provided the act or omission is the proximate cause of the injury, and the injury ought, in the light of all circumstances, to have been foreseen as a natural and probable consequence thereof. In our opinion, as a general rulé, these questions should be left to the determination of the jury.”

It has been definitely settled for this state that damages may be awarded for injuries, mental and physical, when caused by fright. It would be profitless to pursue the subject further.

It is ordered that the judgments of the district court and the Court of Civil Appeals be affirmed.


author: PHILLIPS, J.

text:
    BANCO MINERO v. ROSS et al.
    (No. 2328.)
    (Supreme Court of Texas.
    Jan. 20, 1915.)
    1. Appearance (§§ 8, 19) — Plea to Jurisdiction — Effect.
    Where defendant, a Mexican corporation, when sued in Texas by attachment, filed a plea to the jurisdiction, it thereby appeared and subjected its person to the court’s jurisdiction.
    [Ed. Note. — For other eases, see Appearance, Cent. Dig. §§ 23-41, 79-82, 84-90; Dec. Dig. §§ 8, 19.]
    2. Courts (§ 17) — Jurisdiction—Person and Subject-Matter.
    Where, in a suit against a Mexican corporation for conversion of certain funds, the Texas court acquired jurisdiction of defendant’s person by its appearance to attack the court’s jurisdiction, it also acquired jurisdiction of the subject-matter.
    [Ed. Note. — For other cases, see -Courts, Cent, Dig. §§ 46-50, 52; Dec. Dig. § 17.]
    3. Courts (§ 7) — Jurisdiction—Transitory Actions — Conversion.
    An action against a Mexican bank for conversion of a deposit owing to plaintiff was transitory, and could be prosecuted in any court properly obtaining jurisdiction of defendant’s person, and this notwithstanding the money, at the time of its alleged conversion, was in Mexico and the suit involved an inquiry concerning a contract for the sale of certain Mexican land.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 14, 16, 22-31; Dec. Dig. § 7.]
    4. Specific Performance (§ 131) — Judgment —Effect.
    Where a suit was instituted in Mexico to compel plaintiff to specifically perform a contract to purchase certain land from T. and a bank in which a portion of the purchase price had been deposited to plaintiff’s credit was not a party to such suit, a judgment against plaintiff directing specific performance was not effectual to confer any authority on the bank to pay over the deposit to T. or to create any obligation on it to do so.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 426-435; Dec. Dig. § 131.]
    5. Judgment (§ 831) — Judgment of Foreign Court — Want of Jurisdiction — Effect.
    A judgment of a foreign court which it was without jurisdiction to render is not entitled to credit anywhere.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1519-1522; Dec. Dig. § 831.]
    6. Trial (§ 136) — Validity of Foreign Daw —Question of Fact.
    Whether an order of a Mexican judge, directing a bank to pay over to T., in whose favor he had rendered a personal judgment, certain funds on deposit belonging to a judgment debtor, was valid according to the Mexican law, and had, under such law, the legal effect to confer on the court jurisdiction of the deposit and authority to require payment, was a question of fact, and determinable as such in a subsequent suit by the judgment debtor against the bank for conversion of the deposit.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 318, 320, 321, 323-327; Dec. Dig. § 136.]
    7. Evidence (§ 571) — Foreign Law — Conclusiveness.
    Where, in order to prove the law of Mexico on a certain fact, certain provisions of the Mexican Civil Code were introduced, together with the testimony of an alleged expert witness as to the proper construction thereof, the trial judge was not obliged to accept the witness’ construction, but was entitled to construe the provision» himself.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2395-2398; Dec. Dig. § 571.]
    8. Specific Performance (§ 102) —Nature of Action — Personal Liability.
    Where T. sued plaintiffs in the Mexican courts to enforce specific performance of their contract to purchase certain land, requiring them to pay $40,000 on an event which never happened, but which they were required to and did deposit to their individual credit in a Mexican bank, such action, notwithstanding the deposit, was purely in personam.
    [Ed. Note. — For other cases, see Specific Per.formance, Cent. Dig. §§ 318, 3lé; Dec. Dig. § 102.]
    9. Judgment (§ 17) — Service by Publioa- • tion — Personal Liability.
    A judgment rendered on service by publication in an action in personam is void.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 25-33; Dec. Dig. § 17.]
    10. Judgment (§ 831) — Foreign Judgment— Conclusiveness.
    In order that a foreign judgment against a citizen of the United States will be accorded credit in the courts of Texas, it must be shown to have been rendered by a competent court having jurisdiction of the parties and the cause, and that an opportunity for a full and fair trial by regular proceedings according to the course of a system of civilized jurisprudence, likely to secure an impartial administration of justice, has been had, with nothing to show either prejudice in the court or in the legal system or fraud in the procurement of the judgment, and also that there is no special reason why the comity of the United States should not give the judgment effect.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 1519-1522; Dec. Dig. § 831.]
    11. Judgment (§ 831) — Foreign Judgment-Credit — “Full and Fair Trial.”
    The rule that, in order that a foreign judgment against a citizen shall be accorded credit in the courts of the United States, there must have been an opportunity for a full and fair trial, means not a summary proceeding, though sanctioned by the law of the forum, but an opportunity to be heard on the proof, where it is apparent that the cause involves questions of fact, and to have it considered by an unprejudiced court.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1519-1522; Dec. Dig. § 831.]
    12. Judgment (§ 831) — Foreign Judgment-Credit — Fair Trial.
    Where plaintiffs were sued in Mexico for specific performance of a contract to purchase certain land from T., and pleaded what would have constituted a good defense — to wit, that T. was "entirely unable to convey the land which his agents had pointed out to plaintiffs as the subject-matter of the contract — but plaintiffs were denied the right to present such defense, though they seasonably offered to do so, and were denied an appeal from a judgment against them because of the omission to affix a stamp to the document of appeal, the judgment was not one obtained after a full and fair trial, and was not entitled to credit in the courts of the United States.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1519-1522; Dec. Dig. § 831.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by J. O'. Ross and H. Masterson against the Banco Minero. Judgment for plaintiffs, and defendant brings error.
    Affirmed.
    T. A. Falvey, Waters Davis, and J. M. Goggin, all of El Paso, for plaintiff in error. Beall & Kemp, of El Paso, R. H. Ward, of San Antonio, and Baker, Botts, Parker & Garwood, of Houston, for defendants in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PHILLIPS, J.

Tile source of this suit was a contract entered into on May 8, 1907, between A. H. Kraft, John Fulkerson, and Don Alberto Terrazas, on the one hand, and J. O. Ross and H. Masterson, citizens of this state, the defendants in error, on the other, for the sale to the latter by Terrazas, a citizen of the republic of Mexico, of a large body of Mexican land, comprising about 125,000 acres, and known as the Carillo grant, at the price of $1 gold per acre, $10,-000 gold to be paid Terrazas by May 12th, and $40,000 gold to be deposited by Ross and Masterson to their own credit in the Banco Minero, a bank in Chihuahua, Mexico, by May SOth, to be paid over by it, on their order, to Terrazas upon the completion of a survey, the approval of the title, and the tender of a proper deed, notes to be given for the balance of the purchase price. In the negotiation preceding the execution of the contract the land had been represented to Ross' and Masterson as capable of yielding an average cut of 4,500 feet of timber to the acre, and as being well watered and good grazing land, and suitable for pasturage purposes. They had caused to be inspected a tract pointed out by Terrazas’ representa-tiveso as the Carillo grant, and, having determined to make the purchase, entered into the contract as stated, under an express guaranty therein provided that the land contracted for was the identical land of which their inspection had been made. The $10,000 payment was duly made to Terrazas, as stipulated, as was the $40,000 deposit in the Banco Minero, the bank executing its receipt to Ross and Masterson, expressing that the deposit was held “subject to payment Alberto Terrazas when transfer land is made.”

Thereafter, about the time the survey was completed, Ross and Masterson were advised by an anonymous letter that Terrazas and his associates in the contract were not selling them the land pointed out to and inspected by their representatives; that is, that the land inspected was not in the Carillo., grant. This, upon further investigation, was ascertained to be true. Subsequently, they met Terrazas at Chihuahua and announced their readiness to close the purchase if he could deliver the land they had agreed to buy. Terrazas then admitted that he could not deliver the land that had been inspected, as he did not own it, and there was nothing to do but cancel the matter and return the $50,000, no part of which, however, has been returned.

Following a demand on January 25, 1908, for the repayment of the $40,000 deposited with it under the contract, which was refused, Ross and Masterson, on October 27, 190S, instituted this suit against the Banco Minero in the district court of El Paso county for the conversion of the deposit, suing out a garnishment at the same time against the Guaranty Trust & Banking Company, domiciled in that county, which under answer admitted an indebtedness to the defendant of $6,157.40, and that the latter was the owner of 1,057 shares of its capital stock of the value of $150,700.

Before passing to the proceedings and judgment of. the trial court, it is appropriate to state here, since it develops the principal question in the case, that on August 14, 1908, Terrazas, for himself and Lauro Carillo, Kraft, and Fulkerson, instituted a suit against Ross and Masterson in the Second civil court of Iturbide district, in the city and state of Chihuahua, to enforce the specific performance of the contract referred to. The Banco Minero was not a party to the suit or the judgment rendered, did not appear, and was served with no character of process prior to the judgment; nor was the $40,000 on deposit with it to the credit of Ross and Masterson in any wise impounded or subjected to the custody of the court prior to the judgment. As to Ross the only mode of service was by publication. He did not appear, and a default judgment was taken against him. Masterson appeared by attorney and attempted to defend against the action. Judgment was rendered against both Ross and Masterson, decreeing that they ■should specifically perform the contract. Subsequently the judge issued an order to the Banco Minero, as follows:

‘T address you the present note, in order that you be pleased to comply with my ruling of the 22d of this month in the execution of the judgment to turn over to Licenciate Jose A. Tanez, attorney for Mr. Terrazas, the aforesaid $40,-000.00 American gold, to which I make reference. Liberty and Constitution, Chihuahua, March 29, 1909. [Signed] C. Gorostieta, Rubrics. Addressed to the manager of Banco Min-nero of Chihuahua, present.”

On the following day, March 30, 1909, the Banco Minero, pursuant to this order, and under the instructions of Terrazas’ attorney in the Mexican suit, without resistance or notice to Ross and Masterson, transferred the $40,000 to the credit of Terrazas, to .whom it was paid upon his checks.

The Banco Minero, in the present case, duly interposed a plea to the jurisdiction of the court, upon the ground that it was a foreign corporation, domiciled in a foreign country, and neither doing business nor having any office or agent within this state, and that the cause of action arose wholly within the state of Chihuahua, in the re* public of Mexico, was local in its nature. and cognizable only by tbe courts of Chihuahua. It furthermore pleaded the judgment in the Mexico suit as an adjudication of the controversy, and its payment of the money involved to Terrazas under the order of the court rendering that judgment and as a part of the judgment, which payment it alleged it was compelled' to make under the laws of the state of Chihuahua, as a bar to any recovery.

The trial before the court resulted in a judgment for the plaintiffs against the Banco Minero for $10,000, with 6 per cent, interest from January 30, 1908.

The filing by the Banco Minero of its plea to the jurisdiction constituted an appearance, and subjected its person to the jurisdiction of the court. York v. State, 73 Tex. 651, 11 S. W. 869.

It is equally clear that the district court of El Paso county, having acquired judisdiction of the person of the defendant, had jurisdiction of the subject-matter of the suit.

The action was one for the conversion of personal property — the $40,000 deposited to the credit of Ross and Masterson in the defendant bank, which, as alleged, it had refused to repay after demand, and had appropriated to its own use. It was accordingly transitory in its nature, and could be prosecuted in any court properly obtaining jurisdiction of the person of the defendant. Stone v. United States, 167 U. S. 178, 17 Sup. Ct. 778, 42 L. Ed. 127: 2 Wharton on Conflict of Laws, § 478a. That the money at the time of its alleged conversion was within another jurisdiction does not affect the question. Nor was the essential nature of the suit changed by the fact that it involved an inquiry into the transaction between the plaintiffs and Terrazas respecting the Mexican land. This was but incident to the issue, and. was involved only to the extent of determining whether the appropriation of the deposit was wrongful. In no other way did the suit touch the land, and in no manner did it seek to affect the title to the land.

Prom the findings of fact of the Court of Civil Appeals, which have been summarized in the statement of the case, it is evident that Terrazas had not a vestige of right to the $40,000 paid him by the plaintiff in error bank, and the appropriation of the money for his benefit, whether according to the Mexican law or not, was but a naked confiscation. The bank held the money for Ross and Masterson, in recognition of their ownership, and under the express condition that it was to be paid Terrazas Only upon his compliance with the land contract. It is liable for a payment in breach of that condition, unless: (1) Its action is protected by the Mexican law; and (2) was in obedience to a judgment valid under that law, and entitled to be so recognized by the courts of this country. Its defense, therefore, rests primarily upon the validity and effect of the order of the judge of the Mexican court, under which it made the payment. If that order was void, its action has no shield of protection, though the judgment of the Mexican court, as to Ross and Masterson, its defendant parties, be treated as valid. This is necessarily true, since certainly the Mexican court had no jurisdiction of the money unless the order was effectual to confer it. In a word, the power of the Mexican judge to direct the payment and the duty of the bank to make it inhered, if at all, in the validity and legal effect of this order. Its validity under the Mexican law, and its legal effect according to that law, if valid, is revealed at once, therefore, as the main question in the case. A judgment valid under the Mexican law and entitled to credit by the courts of this country was, of course, necessary' to support the order of the judge; but, as the payment by the bank cannot be held lawful if the order was void, the validity of the judgment is a secondary question, and becomes important only upon a determination that the order was valid and had the force of conferring upon the Mexican court jurisdiction of the money.

It is plain that the judgment itself was not effectual to confer any authority upon the bank to pay the money to Terrazas, or to create any obligation for it to do so. By its terms it was operative only against Ross and Masterson. It cannot be accorded any effect as against the bank; it being not even a party to the suit. By no character of seizure or process had the money in the hands of the bank been brought within the custody of the court at the time of the rendition of the judgment, as has been already noted. Any attempt of a court by such a judgment to thus dispose of personal property of a foreigner or citizen, not within its custody, but in the hands of a third person not amenable to the decree, because not a party to the proceeding, involving, ' as it would, the exercise of 'a usurped jurisdiction, is wholly futile. It is,' upon its face, contrary to the usages of law of civilized countries, and no court could be said to rest under any requirement to give it credit.

Jurisdiction is the main essential of every judgment, and a judgment of a foreign court which it was without the power to render has no currency anywhere.

We do not understand the bank to here contend that the judgment of the Mexican court, of itself, operated.as authority for its action in making the payment. Its position, very earnestly pressed, is that, though it was not a party to that suit, and the money was not through any other process " within the court’s custody, this order of .the judge, issued after the rendition of the judgment, was a valid process according to the Mexican law, and, under that law, as effectual to impound the money and confer jurisdiction in the court to direct its payment as any process appropriate for a like purpose known to our procedure; that in making the payment it but yielded obedience to a lawful mandate of the superior civil authority of the government where the money was and of which it was a citizen, which it was compelled to obey under penalty, and should therefore be protected in the payment. If it be conceded that the judgment is valid and entitled to credit, and therefore afforded lawful warrant for the order, and it be true that such was the effect of the order, there would be much force in this position. Such a case would assume a valid judgment, entitled to credit in our courts, and jurisdiction in the Mexican court of the person of the bank and the money, and authority to require the payment by the bank, according to the Mexican law.

But whether the order of the judge was valid according to the Mexican .law, and had, under that law, the legal effect to thus confer upon the court jurisdiction of the money and authority to require the payment which was made, was a question of fact. That such was its legal effect rests upon the testimony of one expert witness, who testified that, according to certain provisions of the Mexican Civil Code, the order was a valid process which it was the duty of the bank to obey under penalty. No judicial authority of any character that such was the effect of the order appears to have been introduced.

The provisions of the Code and the testimony of this witness comprise all the evidence upon the subject. Though embodied in a conclusion of law, the trial judge disregarding the testimony of the expert witness, found that the Mexican court had no jurisdiction of the money and that this order was void. The provisions of the Mexican Civil Code upon which the expert witness predicated his testimony were in evidence and before the trial judge. It was within •Uiis province to construe them for himself. He was not obliged to accept the construction placed upon them by the witness. It cannot be said, as a' matter of law, that his construction was wrong, or that his finding was erroneous. The burden of making this proof was upon the bank. We have examined the provisions of the Code as found in the record, upon which this witness based his testimony respecting the legal effect of the order of the judge, and they do not, in our opinion, justify any construction which would give this order the force of a writ effectual to impound this money or confer upon the court any authority to dispose of it.

The case might well be rested here, but it is probably due that we pass upon the question of the validity of the judgment rendered in the Mexican suit and its right to recognition in our courts. The suit was one to enforce against Ross and Masterson, in favor of Terrazas and his associates, the specific performance of the contract entered into for the sale of the Mexican land. The obligation of Ross and Masterson under that contract was a purely personal obligation; namely, to pay in cash a certain amount of the stipulated purchase price of the land and execute their vendor’s lien notes for the balance. The character of the obligation which the suit was brought to enforce and the relief sought necessarily determined the nature of the action. Any judgment rendered against Ross and Masterson on the contract could, be operative only against them personally, and the judgment actually rendered had no other purport or effect As against them, it did not propose to affect any property within the jurisdiction of the court That according to its terms it involved an obligation on their part to make a further cash payment to Terrazas of $40,000, and that the money which, according to the contract, was to constitute such payment upon Terrazas’ compliance with the contract had then its situs in the state of Chihuahua, made it none the less a personal action. Pomeroy, Eq. Jur. § 1318; Miller v. Rusk, 17 Tex. 170.

Being essentially a suit in personam, the judgment as to Ross, rendered on service by publication, was void. Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Black on Judgments, § 836. Being a void judgment as to Ross, because rendered without jurisdiction, under the accepted law of this country, the trial court properly denied it any effect as to him.

As to Masterson, the Mexican court had jurisdiction, since he entered his appearance in the case. We ar„e convinced, however, that upon another ground the judgment as to him is deserving of no recognition at the hands of the courts of this state. There is no difficulty, we think, in determining the general principles of law which govern the standing of a judgment of a foreign country in our courts. Where there is a competent court, jurisdiction of the parties and the cause, an opportunity for a full and fair trial, regular proceedings according to the course of a system of civilized jurisprudence, likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, with nothing to show either prejudice in the court or in the system of laws, or fraud in the procurement of the judgment, and there is no special reason why the comity of the United States should not allow it effect, the merits of the case, in an action in this country, are not subject to retrial on account of errors of law or fact in the rendition of the judgment. Hilton v. Guyot, 159 U. S. 113, 16 Sup. Ct. 139, 40 L. Ed. 95.

But, jurisdiction being granted, the chief requisite for the recognition of a foreign judgment necessarily is that an opportunity for a full and fair trial was afforded. This means, not a summary proceeding, though sanctioned by the law of the forum, but an opportunity to be heard upon the proof where it is apparent that the cause involves questions'of fact, and to have it considered by an unprejudiced court

The proceedings shown in relation to this judgment make it manifest that the trial of the case in the Mexican court was wanting in these essential elements. They reveal that the action was one unquestionably resting in questions of fact, and that Masterson pleaded what would have constituted a good defense, yet that he was denied the right to present it, it not appearing that his offer to support it was unseasonably made. If it be urged that this was warranted by the Mexican procedure, we are unwilling to give condusiveness to a judgment which such a procedure sanctions. The judgment and the recitals which accompany it are a maze of words; but, as we interpret their vague and confused statements, it appears to have been rendered upon no proof whatever. It furthermore appears that Masterson was denied an appeal from the judgment upon what seems to us to have been a frivolous ground; namely, the omission to affix a stamp to the document of appeal. The entire proceeding appears to have been arbitrary in its nature and summary in its execution; and the court, in our opinion, properly declined to give the judgment effect.

The judgments of the district court and the Court of Civil Appeals are affirmed.


author: WALTHALL, J.

text:
    MITCHELL et al. v. THOMAS.
    (No. 373.)

    (Court of Civil Appeals of Texas. El Paso.
    Dec. 24, 1914.
    Rehearing Denied Jan. 21, 1915.)
    1. Public Lands (§ 173) — School Lands— Additional Land — Cancellation—Validity — Commissioner’s Authority.
    Rev. St. 1911, art. 5406, vests in the commissioner of the general land office authority over all matters pertaining to the sale and lease of school lands, and article 5424 provides for forfeiture by a purchaser for failure to reside on and improve the land purchased in good faith, declaring that such a forfeiture shall have the effect of placing the land on the market without any action of the commissioner. Article 5426 declares that where a purchaser buys additional lands, a forfeiture for legal cause of the residence section shall work a forfeiture of the entire purchase. Held, that the commissioner’s power to forfeit additional land for non-occupancy of the home section depends on the fact of nonoccupancy, and not on the commissioner’s determination, he having no power to forfeit unless there is actual nonoccupancy by the purchaser; and hence, an unauthorized forfeiture was not effective to place the land on the market so as to justify sale to another.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    2. Public Lands (§ 173) — School Lands— Forfeiture — Market.
    Under Rev. St. 1911, art. 5424, providing that all forfeitures of school land for nonoecu-pancy shall have the effect of placing the land on the market without any action on the part of the commissioner of the general land office, the commissioner’s mere inadvertent and unauthorized attempt to forfeit school land for non-occupancy does not place the land again on the market, nor prevent him, on ascertaining his mistake, from setting aside the entry of forfeiture.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dee. Dig. § 173.]
    3.Public Lands (§ 173) — School Lands— Forfeiture — Nonoocupancy — Restoration of Lands to Market.
    Where an actual forfeiture of a purchase of school lands for nonoccupancy has taken, place, an entry of the forfeiture by the commissioner is necessary to again place the land on the market.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    4. Public Lands (§ 180) — School Lands— Forfeiture — Acts of Land Commissioner.
    The act of the commissioner of the general land office in declaring purchased school lands forfeited is not quasi judicial so as to preclude judicial review of the question of nonoe-cupaney, for which the forfeiture was ordered.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 584; Dec. Dig. § 180.]
    5. Limitation of Actions (§ 130) —Stopping Limitations — Commencement of Suit —Dismissal.
    A suit voluntarily dismissed by plaintiff without a trial on the merits, in the absence of any showing of the reason for such dismissal, §o as to show that it was involuntary, did not interrupt the running of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 539, 545, 553-566; Dec. Dig. § 130.]
    6. Public Lands (§ 173) — School Lands— Inadvertent Forfeiture — Limitations.
    Where defendants and those under whom they claimed title to certain school land purchased by the entryman as additional land in every way complied with the law under which their purchase was made, the land commissioner’s inadvertent notation of a forfeiture of the sections to which the land in controversy was additional land did not put the one-year statute of limitations (Acts 29th Leg. c. 29) in motion so as to require -defendants to sue to quiet their title within one year on pain of losing their right to the land to a subsequent purchaser.
    [Ed. Note, — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    Appeal from District Court, Presidio County ; W. O. Douglas, Judge.
    Trespass to try title by C. O. Thomas against T. C. Mitchell and another. Judgment for plaintiff, and defendants appeal.
    Reversed and rendered in part and remanded for retrial on the issue of plaintiff’s claim for permanent improvements, etc.
    J. A. Gillett and Hudspeth, Dale & McDonald, all of El Paso, for appellants. Walter Gillis, of Del Rio, and J. D. Martin, of Alpine, for appellee.

      For other cases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

       Application ior writ ol error pending in Supreme Court.

   WALTHALL, J.

This is an action of trespass to try title, brought by 'O. O. Thomas, ap-pellee”, against T. C. and C. T. Mitchell, appellants, in the district court of Presidio county, Tex., on May 5, 1913, in which appellee sought to recover of appellants title and possession of public free school section No. 20 in block No. 1 in that county. Appellants’ answer denied the trespasses, injuries, and wrongs complained of, and set up a cross-action against appellee, claiming title in themselves to said section. Appellee entered a plea of not guilty to said cross-action and further pleaded his title specially. The case was tried before the court without a jury. As all the facts showing the titles under which appellants and appellee claim to own said section are set out under the trial court’s findings of facts, and no objection being made by either appellants or appellee to said findings, we here copy them and make them our own findings of facts:

“First. February 2, 1907, proper applications of Gregorio Biscanio were filed in the land office to buy section 415, block 8, Presidio county as a borne tract and section 405 of same block as additional. Said lands were on the market and subject to sale to Biscanio.
“Second. March 6, 1907, said two sections were duly awarded to Biscanio.
“Third. (No date given) Biscanio settled on section 405 within 90 days after the date of his award.
“Fourth. May 27, 1907, Biscanio’s affidavit of settlement on section 405 was filed in the land office.
“Fifth. August 29, 1908, Biscanio’s application, in proper form, to purchase section 20 (the tract herein sued for), as additional to section 415, was filed in land office. He was actually occupying section 405 at the time and had complied with all requirements of the law for the acquisition of the three sections above described.
“Sixth. September 12, 1908, Biscanio’s purchase of section 415 was forfeited by the commissioner for ‘failure to reside on and improve, and collusion,’ and section 405 for ‘failure to settle, reside upon, and improve, and collusion.’ The facts did not exist to justify this cancellation.
“Seventh. September 23, 1908, Biscanio’s application to purchase section 20 was rejected by the commissioner because ‘the question of ownership of your home tract is now pending in the district court of Travis county and is not proper base for the purchase of additional land.’
“Eighth. June 14, 1910, Biscanio conveyed by quitclaim deed to E. B. Quick and Gus Elmcn-dorf all of his right to sections 405, 415, and 20.
“Ninth. September 0, 1910, application of O. O. Thomas in proper form to purchase section 20 as a home tract filed in land office. He complied with all requirements of law to entitle him to an award.
“Tenth. October 4, 1910, section 20 was duly awarded to Thomas.
“Eleventh. December 19, 1910, Thomas actually in person settled upon section 20.
“Twelfth. January 3, 1911, Thomas’ affidavit of settlement on section 20 was filed in the land office.
“Thirteenth. April 8, 1911, proof of occupancy on section 405 by Biscanio for throe years, from February 2, 1907, filed in land office. This affidavit is defective in that it shows three years’ occupancy from date of sale, instead of three years from date of award (March 6, 1907), but the testimony shows three years’ occupancy from date of settlement.
“Fourteenth. August 21, 1911, Quick and El-mendorf filed suit of trespass to try title to section 20 in the district court of Presidio county, against O. O. Thomas, and obtained service on defendant.
“Fifteenth. May 30,1912; Biscanio’s purchase of sections 405 and 415 was- reinstated by land commissioners.
“Sixteenth. June 6, 1912, Quick and Blmen-dorf conveyed all of their interests in sections 20, 405, and 415 to T. C. and G. T. Mitchell by quitclaim deed.
“Seventeenth. August 19, 1912, Thomas and Biscanio had complied with all requirements of law for the acquiring of their respective lands, such as making interest payments, occupancy, and the like, up to this time.
“Eighteenth. August 19, 1912, the award of section 20 to Thomas canceled, and said section 20 awarded to Biscanio on his application filed August 29, 1908. Thomas had not defaulted or failed in any particular in his contract obligations to justify a cancellation of his award on any statutory ground.
“Nineteenth. August 20, 1912, Quick and El-mendorf dismissed their suit against Thomas, which was filed August 21, 1911.
“Twentieth. May 5, 1913, this suit filed in 'district court of Presidio county by O. O. Thomas against T. O. and O. T. Mitchell.
“Twenty-first. July 10, 1913, quitclaim deed Biscanio to Quick and Elmendorf, dated June 14, 1910, and quitclaim deed Quick and Elmen-dorf to T. O. and C. T. Mitchell, dated June 6, 1912, filed in the land office.
“Twenty-second. January 20, 1914, the trial of this case commenced.
“Twenty-third. January 20, 1914, quitclaim deed of this date (executed after the beginning of this trial) Biscanio to T. C. and C. T. Mitchell to sections 20, 405, and 415 was introduced.
“Twenty-fourth. Thomas completed his three years’ residence on section 20 and made the necessary improvements, and he and Biscanio have made all payments due the state.
“Twenty-fifth. That Biscanio was 21 years old, and in all things qualified to purchase school lands at the time he filed his application in the land office for the purchase of section 20; that section 20 is within a radius of five miles of section 415, his home section; that Biscanio had never purchased any lands prior to his purchase of the complement of sections of which 415 is a basis, and that he was hence qualified in all things to make the purchase of section 20; likewise Thomas was 21 years of age at the time he applied to purchase section 20, being apparently upwards of 50 years old at this time.”

Under appellee’s claim of valuable improvements made in good faith, the trial court found, and which we adopt, that appel-lee within five months after the award of section 20 placed permanent and valuable improvements on said section' 20, aggregating $590; that same was placed on said land in good faith, that is, “while under the good faith and belief that the said land had been regularly and lawfully acquired by him under a valid contract of purchase from the state.” The court found that the value of the improvements placed on the land by ap-pellee, not exceeding the amount to which the value of said land was actually increased thereby, was $600; that the value of the use and occupation of section 20 during the time appellee has been in possession (exclusive of the value of the improvements) was $162.-50; that the value of section 20 without the improvements is $1,280 over and above the amount still owing the state, the value of the use of section 20 from August 19, 1911 (two years prior to the date of filing defendants’ cross-action), to date of trial, whs $150, and from June 6,1912, $80; that appellee was continuously in possession of and using section 20 from December 19th to date of trial; that appellee had taken firewood from said section to the value of $5. On the above facts, the trial court rendered judgment for appellee for title and possession of section 20. Appellants filed motion for new trial and, it being overruled, gave notice of appeal and filed assignments of error.

Appellants, in their brief, group their first, second, third, fourth, fifth and sixth assignments of error, and submit the same under five propositions, all germane to the assignments and all challenging the correctness of the trial court’s conclusion of law upon the facts found, and upon which he entered judgment for appellee, the propositions, in effect, being that the entries of forfeiture by the commissioner of general land office were entirely ministerial; that the entries of forfeiture alone, no abandonment of the home section having taken place, did not have the effect to put' section 20 back on the market, and that because no abandonment had in fact taken place, section 20 was not on the market and the award to appellee was a nullity. The appellee’s counter propositions present directly opposing propositions of law to each of appellants’ propositions and all undertaking to sustain the correctness of the trial court’s conclusions of law arising on the facts found. The counter propositions are to the effect that a cancellation by the commissioner of the award to Biscanio was not void but voidable only, and that the award to appellee was valid and binding on the state and appellants until set aside in a proceeding for the purpose. We think it unnecessary to state the propositions and counter propositions under these assignments more fully, as in our opinion only one question of law is presented: Did the entries of forfeiture by the commissioner of the general land office shown in the court’s findings of facts have the legal effect to place section 20 back on the market and subject to purchase by appellee?

The trial court found that, the purchaser, Biscanio, had, in every respect, fully complied with all the requirements of the la.w for the acquisition of all three of the sections of school land involved in this controversy ; that, while the commissioner of the general land office had entered a forfeiture of the home section 415 for “failure to reside on and improve, and collusion” and had entered a forfeiture of section®405 for “failure to settle, reside upon, and improve, and collusion,” and had rejected Biscanio’s application to purchase section 20 because “the question of ownership of your home tract is now pending in the district court of Travis county, Tex., not proper base for the purchase of additional land.” Biscanio having made proper application to buy section 20 as additional land, ]the facts did not exist to justify the commissioner in indorsing the forfeitures or making a cancellation of sections 415 or 405, or said section 20. Articles 5406, 5424, and 5426 of Revised Civil Statutes 1911, are the only articles that seem to apply to forfeitures of school lands, except for nonpayment of interest.

Article 5406 refers to the duties of the commissioner, and provides:

“The commissioner of the general land office is hereby vested with all the power and authority necessary to carry into effect the provisions of this chapter [chapter 9, relating to the sale and lease of public free school and asylum lands], and shall have full charge and discretion of ail matters pertaining to the sale and lease of said lands, and their protection from free use and occupancy and from unlawful inclosure, with such exceptions and under such restrictions as may be imposed by the provisions of this chapter, or the Constitution of this state.”

The rest of the article authorizes the commissioner to adopt such resolutions.

Article 5424:

“Every purchaser shall be required within three years after his purchase to erect permanent and valuable improvements on the land purchased by him, which improvements shall be of the reasonable market value of three hundred dollars. If any purchaser shall fail to reside upon and improve in good faith the land purchased by him as required by law, he shall forfeit said land and all payments made thereon to the state, to the same extent as for the nonpayment of interest, and such land shall again be upon the market as if no such sale and forfeiture had occurred; and all forfeitures for nonoccupancy shall have the effect of placing the land upon the market without any action whatever on the part of the commissioner of the general land office.”

The rest of the article has no application.

Article 5426:

“When any purchaser buys and settles upon a section, or part of a section, of school lands, and buys, either at the same time or subsequently, other lands in addition thereto, a forfeiture for any legal cause of the part on which he resides, at any time before the three years’ residence thereon has been completed, shall work a forfeiture of the entirq purchase, except such part thereof as he may have previously sold to another.”

The rest of the article has no application.

It will be seen from the reading of the sections above that it is the failure of the purchaser to comply with the requirements of the law that works the forfeiture of his purchase, and that without any action by the land commissioner.

From the trial court’s findings of fact, it appears that on the 29th day of August, 1908, when Biscanio made and filed his application in proper form to purchase section 20, there was nothing to prevent the sale to him on said application of section 20, except the entries above noted, made by the commissioner as to Biscanio’s home tract.

Both the commissioner and the trial court found that no fact existed that gave the commissioner the power, under the law, to make any entry of forfeiture of the two sections, or to reject Biscanio’s application to purchase section 20, and the commissioner, so concluding, canceled the entries of his forfeiture of the two sections, reinstated Bis-canio’s application to purchase section 20, on Ms application filed August, 1908, and canceled tlie award of section 20 made to Tilomas.

In tlie ease of Johnson v. Bibb, 32 Tex. Civ. App. 471, 75 S. W. 71—a case very similar to the case at bar in many of its facts, and we cite it only for the purpose of quoting from that case on the question of the power of the commissioner to enter forfeitures, and on the question as to whether an entry of forfeiture of a purchase, when the facts do not exist to authorize the entry, has the effect to place the land baclr on the market — in that case, as in this, the commissioner of the land office had entered a forfeiture for abandonment of the land, and reinstated the purchaser’s award. The trial court in that case held that, although there had been no abandonment, the commissioner’s indorsement of forfeiture operated as such, and that the commissioner’s attempted reinstatement was unauthorized, and hence that the land was on the market at the time Bibb made Ms application to purchase. In that case, the Court of Civil Appeals held, and a writ of error was refused, that:

“The power [of the commissioner to forfeitj is dependent upon the fact. Where the fact of abandonment does not exist, the power of forfeit on this ground does not exist. The court, upon sufficient evidence, as we think, found that no abandonment of the land in controversy had occurred on January 22, 1901, when the commissioner attempted to forfeit it, and the attempt, therefore, had no force or effect whatever. He hence could certainly cancel and set aside as he did, on February 7, 1901, the unauthorized, inadvertent attempt to forfeit.”

This case, we think, is directly in point and conclusive as to the legal effect of any entry of forfeiture made by the commissioner on. any purchase where no cause for a forfeiture named in the statute has in fact taken place. The entry by the commissioner of forfeiture of a purchase in the absence of the actual fact named in the law upon which a forfeiture could be made, is a mistake, an inadvertence, an unauthorized entry, one that he can himself correct, and that the mistake, though entered, has “no force or effect whatever” on the purchaser’s claim. Burnam v. Terrell, Commissioner, 97 Tex. 309, 78 S. W. 500. If the attempted forfeiture of Bisca-nio’s purchase had the effect to put the land on the market, it would not be true that the attempted cancellation of Biscanio’s purchase had “no force or effect whatever.”

The court, in discussing the Johnson v. Bibb Case, referred to the Moore v. Rogan Case, 96 Tex. 375, 73 S. W. 1, in which the commissioner of the general land office had inadvertently accepted an application for the purchase of land not authorized to be sold, and in which Judge Brown of the Supreme Court uses the following language:

“The commissioner, having inadvertently exercised authority over the land which the law did not give him, had the right to cancel the void contract which he made with the relator.”

Section 5424, Revised Statutes, above quoted, provides that:

“All forfeitures for nonoecupancy shall have the effect of placing the land upon the market without any action whatever on the part of the commissioner of the general land office.”

But the statute nowhere provides that the mere inadvertent, unauthorized attempt of the commissioner to forfeit the purchase has that effect. It is the fact of nonoccupancy of the land, and not the entry of the commissioner, that causes the forfeiture of the purchase. After the actual forfeiture for nonoecupancy has taken place, an entry of the forfeiture by the commissioner is necessary to again place the land on the market. In Bumpass v. McLendon, 45 Tex. Civ. App. 519, 101 S. W. 491, where the commissioner after awarding the land to McLendon, had indorsed across the purchase-money obligation of McLendon, “Land forfeited for abandonment 4 — 20—1901, Charles Rogan, Commissioner,” and after execution sale of the land, at which Bumpass became the purchaser, in a suit in trespass to try title, Bumpass offered to show that McLendon had fully complied with all requirements of the law, and that the facts did not exist that authorized a forfeiture. The trial court refused to hear the evidence on the ground that the award to McLendon had been forfeited. The Court of Civil Appeals said:

“After the award, therefore, to J. D. McLen-don, January 22, 1900, .the land in controversy was no longer upon the market and subject to the application of and sale to defendant in error by the state, until the previous award to J. 1). McLendon had been legally forfeited and the land again placed upon the market.”

In Briggs v. Key, 30 Tex. Civ. App. 565, 71 S. W. 43, the Court of Civil Appeals held that an award of school land by the commissioner of the general land office, void because the applicant was not an actual settler, did not have the effect to take the land off the market. It is the provision of the law requiring an actual settlement on the lands, and the fact of actual settlement, that has the effect to take the land off the market, and not the award of the commissioner under a misapprehension of the fact of settlement. Is it not also true that the converse of the proposition, only the provision of the law declaring a forfeiture of the purchase on the ground of abandonment, and an actual abandonment of the «land by the purchaser as a fact, and not a misapprehension on the part of the commissioner as to the fact of abandonment, that has the effect to put the land on the market again? We so understand the law.

Appellee insists that the act of the land commissioner in declaring the lands forfeited was a quasi judicial act, and not merely ministerial in its nature, because it involved the exercise of judgment and discretion in determining the tact of abandonment; therefore was voidable only, and not void, and had tile effect to again place the land upon the market, and in support of that proposition cites the case of Burnam v. Terrell, Com’r, 07 Tex. 309, 78 S. W. 500 (Sup. Ct.). In that case Burnam applied for a writ of mandamus to compel the commissioner of the general land office to reinstate him as purchaser of detached school lands under article 4218y, Kevised Statutes, 1895, insisting that since the Legislature had invested the commissioner with the power to sell the “isolated and detached” sections of school lands in the county of Menard, the duty was necessarily devolved upon him to determine what sections were “isolated and detached,” and that when the commissioner had determined that question and made a sale accordingly, his decision that the land was “isolated and detached” was conclusive upon that matter. In the opinion rendered in that case, Chief Justice Gaines says that:

“It is a well-recognized rule that where an officer is empowered to determine a question of fact in the absence of some provision of law for a revision of his ruling, his decision is binding upon the courts.”

The Chief Justice, after quoting the statute, applying to “isolated and detached” sections of public lands, said:

“This does not in express terms authorize the commissioner of the general land office to determine what sections were detached and what were not. But it is true that, in order to exercise the authority conferred by this provision, the commissioner must first satisfy himself that the land is detached”

—and concludes the question in these words:

“Certainly the statute quoted does not expressly confer any quasi judicial authority upon the commissioner to determine the question, nor do we think that, under the circumstances, is any such authority to be implied.”

In further commenting upon that case, the court said:

“It is plain that in this case the commissioner inadvertently made a mistake, and, acting upon the belief that the land had been detached, accepted the relator’s application to purchase. Mistakes of like character are not infrequent, and are perhaps in a measure unavoidable. The cases * * * brought to this court show that in such case it is the practice in the land office for the commissioner to correct his mistake by rescinding his previous action, and where he has erred in making a sale to cancel his award.”

The statute applying under which the sale of section 20 was made, in this case, as that under discussion in the Burnam v. Terrell, Com’r, does not, in express terms, confer upon the commissioner any quasi judicial .authority to determine the question of abandonment of the section by the purchaser. It is our opinion, under the facts found by the trial court, that the forfeitures entered by the commissioner of the general land office, where there was in fact no abandonment of the land by the purchaser, did not have the legal effect to cause a forfeiture, nor did such entries have the legal effect to place the land again upon the market; and, the entries of forfeiture having been made under a misapprehension that an abandonment had taken place, the commissioner of the general land office had the power, and it was the duty of the commissioner, to reinstate the purchase of Biscanio, and to cancel the award made to Thomas as he did. It is not the practice in the land office, nor is it the law, that where an entry of forfeiture has been made inadvertently and through a mistake of fact, and the purchase reinstated, to require • to be substituted for the original a new application of purchase, and make new entry of sale, but the same original application, obligation, and award stand, and the purchase is of the date of the original sale.

In subdivision sixth of the trial court’s conclusions of law, the court held that the filing of the suit by Quick and Elmendorf against C. O. Thomas on August 21, 1911, to recover section 20, and dismissed on August 20, 1912, by plaintiffs, without being prosecuted to final judgment, did not operate to suspend the running of the statute of one-year limitation of 1905, and appellants assign that conclusion of the court as error, by their seventh assignment. In this ruling we think there was no error. The rule, as we understand it, is that a suit brought for the same land against the defendant, but voluntarily dismissed by the plaintiff, without a trial on the merits, and the reason for such dismissal not being sufficiently explained or accounted for, so as to relieve it of being voluntary, does not interrupt the running of the statute. We do not think the facts of Biscanio’s purchase being reinstated by the commissioner, the conveyance of the interests of Quick and Elmendorf in the lands to appellants, and the cancellation of the Thomas award, Thomas not causing or in any way inducing the dismissal of the suit, sufficient to bring the case under the rule announced in Hanna v. Atchison, 141 S. W. 190.

Appellants’ eighth, twelfth, thirteenth, and fourteenth assignments of error, and their propositions thereunder, question the correctness of the conclusions of law of the trial court on the application of the one-year limitation act of 1905, the trial court holding that the award to appellee by the commissioner of the general land office of section 20, • being voidable only, at the beginning, the commissioner having acted entirely within the scope of his statutory authority, ripened into a title conclusive against every one except the state; that the cancellation of the award of section 20 to appellee was unauthorized on any ground provided in the statute, and that the cancellation was void; that because the cancellation of the award to appellee was void, the award of section 20 to Biscanio was void; that appellee having brought this suit to set aside the award to Biscanio within a year after the award was made, the award to Biscanio should be given no effect in this ¡salt. The counter propositions of appellee under these assignments undertake to sustain the trial court’s conclusions. Sections 1 and 2, Acts Reg. Sess. 29th Leg. 1905, p. 35, have been before the courts for construction and application quite frequently. Applying the two sections to the facts of this case, the verbiage of the sections might read thus: If Biscanio claims the right to purchase section 20 as additional land, he shall bring his suit therefor within one year after the date of the award of the sale made by the commissioner to Thomas, and not thereafter. If he (Biscanio), claiming the right to purchase section 20, has filed no suit against Thomas within one year from the date of the award to Thomas, it shall be conclusive evidence that all requirements of the law with reference to the sale to Thomas have been complied with.

The first inquiry we make in construing these sections of the law, as applied to the facts of this case, is: At the date of the award of the sale of section 20 to Thomas, or at any time thereafter was Biscanio, having complied with the law in every particular, claiming the right to buy section 20? If he had already complied in every requirement of the law to become a purchaser, and had in no particular forfeited any of his rights as a purchaser, could it be said that afterwards, and at the date of the award to Thomas, or at any júme thereafter, he was then claiming the right to buy? If Biscanio had, at any time within one year before the award to Thomas, failed in any particular to comply with the requirements of the law that authorized a forfeiture of his purchase, and the commissioner had then undertaken to reinstate Biscanio’s claim to purchase, and in the meantime had awarded a sale to Thomas, we think the contention of appellee could be sustained. In the case of Wyerts v. Terrell, Com’r, 100 Tex. 409, 100 S. W. 133, to which we are referred by appellee, the purchaser had made default in the interest payment, and the purchase under which Mrs. Swan was claiming had been canceled for the nonpayment of interest, but on the payment of interest, Mrs. Swan’s purchase was reinstated; in the meantime a 10-year lease was made and forfeited for nonpayment of the rent. On the day the county clerk was notified of the cancellation of the lease, the relator apiolied to buy. Relator in his application for a writ of mandamus sought to question the validity of the reinstatement of Mrs. Swan’s purchase. The court held the limitation of the act of 1905 applied to relator’s suit. In that case, the Supreme- Court said:

“When the commissioner, acting for the state, has made a sale of land to one person, another cannot, .in any case, buy the same land while such sale is allowed by the state to stand, unless by showing that it was, or has become, null and void, leaving the land subject to purchase and sale, as if it had never occurred.” |

In the case of Erp v. Tillman, 103 Tex. 574, 131 S. W. 1057, to which we are referred by appellee, Erp’s title to the west 240 acres' of school land involved in the suit was most irregular in the number of instances pointed out by the court — the land not being on the market when he applied to buy; description defective, and sold at a less price than at which it was appraised; Tillman, claiming under a prior sale, brought the suit against Erp within a year after the award of the sale to Erp. The Supreme Court said that if a year had elapsed before Tillman brought his action and Erp had pleaded the statute, the validity of the award under which Erp claimed would not have been open to attack, but under the terms of the statute would have been conclusive evidence that all requirements of law had been complied with, on .the ground that the award and its recognition by the state for a year constitutes title for such a controversy, and to those facts the statute gives conclusive effect as evidence of title, precluding inquiry as to antecedent defects in title; and, while the court'held that the statute under consideration was one of limitation, and contains a rule of substantive law and a rule of evidence, precluding inquiry into defects of the opposing title after one year, yet the court held that the purpose of the statute was not so much to protect purchasers who had not complied with the law as it was to prevent such interferences with sales, and to reserve to the state the election to abide by or reject them that the statute was adopted. We understand that case to mean that after an award has remained a year in good standing, no one hut the state can point out defects in the title. But we do not understand that because defects in the manner of acquiring the award for a sale cannot be made a matter of defense after a year, such title, because of the statute, supersedes and takes precedence over and destroys appellants’ title, and especially when the state has repudiated and canceled it. We think this view is clearly expressed in Kirby v. Conn, 156 S. W. 232, in which Chief Justice Pleasants, in discussing this same statute, said:

“The evident purpose and intent of this statute is to limit.to one year the time in which an award or sale of land by the state can be attacked on the ground of irregularity, by one who claims only a right to purchase, and does not affect one whose right in the land sought to be recovered had vested prior to the award, or sale-by the state, to the adverse claimant.”

In Rainer v. Durrill, 156 S. W. 589, the Fourth Court of Civil Appeals, speaking through Justice Fly, in discussing the application of this limitation, said:

“It has no reference to a void sale like that in this case (sale by the state to a minor), but to those voidable on account of some irregularity. It is the same as though no award had-been made, and no length of time could legalize it.”

In the case of Davis v. Yates, 133 S. W. 281, the Fourth Court of Civil Appeals held. that where there had been no actual settlement on the land by the purchaser at the time of his application, the act of the commissioner in awarding the land was contrary to law, outside his authority, and conferred no right, and in such case, the statute of limitation invoked did not apply.

We are of the opinion that the appellants and those under whom they claim, having in every way complied with the law under which their purchase was made, the inadvertent notation of the forfeitures of their purchases of the sections, to which section 20 was additional land, did not have the effect to put the one-year limitation statute in motion or destroy appellants’ purchase of said section, or to put section 20 on the market at the time of appellee’s award, and if we are right in that view of the case, we think it necessarily follows that appellee ought not to recover the land. Appellants’ assignments presenting these issues are sustained, as, also, their eleventh, sixteenth, seventeenth, and eighteenth assignments. .

Appellants’ twentieth and twenty-first assignments of error complain of the finding .of fact and conclusion of law made by the trial court, as to the permanent and valuable improvements made on the land by appellee. We are not presented with the evidence upon which the court’s finding of fact was made. The issue was one of fact for the trial court to determine. House v. Stone, 64 Tex. 677. The court found that appellee had placed improvements on said land in good faith to the value of $590, but the finding does not state the value of the improvements at the time of the trial. The court does find the value of the use and occupation of the premises during the time appellee was in possession up to the time of the trial, but the value is not computed by the month or for any definite period of time, so that we could now compute the value and enter judgment on the claim for use and occupation, should we overrule appellants’ assignments on that issue.

We, therefore, reverse and here render judgment for appellants for the title and possession of the land, and remand the case to the trial court, to try alone the issue of ap-pellee’s claim for permanent and valuable improvements, and on which issue we make no ruling as to appellee’s right to recover.