text:
    SORENSON v. BROADDUS.
    (No. 822.)
    (Court of Civil Appeals of Texas. El Paso.
    March 28, 1918.
    Rehearing Denied May 2, 1918.)
    1. REFORMATION OF INSTRUMENTS <&wkey;45(3)— Specific Performance — Evidence.
    In a suit to reform and specifically enforce contract for sale and exchange of lands in which plaintiff based his right of action on the fact that property was signed up under a government irrigation project, and that contract by mistake failed to make defendant take subject to such project, evidence held sufficient to show that property was signed up under the project.
    2. Action &wkey;>69 — Contract for Sale and Exchange of Lands — Relief as Depending on Other Litigation.
    Specific performance of a contract for sale and exchange of lands whereby defendant was to assume plaintiff’s contract with a water user’s. association under a government irrigation, project is not dependent on termination of litigation seeking adjudication of water appropriation under the project and the respective rights of parties in the waters; there being no claim that assessments on the lands involved in the suit for specific performance had not been paid..
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Suit by H. W. Broaddus against John Sorenson. Erom a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. A. Buckler, of El Paso, for appellant.. J. U. Sweeney and J. E. Quaid, both of El Paso, for appellee.
   WALTHALL, J.

This suit was brought by H. W. Broaddus against John Sorenson for reformation of a written contract for the sale and exchange of lands, and for specific-performance of the contract so reformed. The Broaddus lands are situated in Dona. Ana county, N. M., and the Sorenson property consists of certain lots in the city of El Paso, Tex.

The contract pleaded and sought to be enforced is as follows:

“$500.00. El Paso, Texas, May S, 1916.
“Received of H. W. Broaddus, the sum of five hundred dollars, earnest and forfeit money, and post purchase money, to close trade of sale to W. H. Broaddus, of the following described property at the total sum of $-, being the east 63x78 feet of lots one, two, and three, block two hundred and thirty-one (231), Campbell addition. Terms of sale, two thousand dollars ($2,000.00), cash on delivery of deed, balance twenty-five hundred dollars ($2,500.00), in notes due two years at eight per cent, interest, and also a clear deed to one hundred and fifty (150) acres of land in the valley,_ situated on the main gravel road west of the Rio Grande river, about one-quarter of a mile north of La Mesa, N. M., known as the Lohman tract, about thirty miles north of Ell Paso, TeX., except forty-five hundred dollars ($4,500.00) now against the same land, which John Sorenson is to assume, and H. W. Broaddus further agrees to assume five thousand dollars ($5,000.00) now against above described lots, deed to be made to H. W. Broaddus, the other to John Sorenson, and all taxes to and through the year 1915 to be paid by the seller, and transfer of title to be made and executed by warranty deed; deed to be delivered and accepted on or before June 1, 1916, and deferred payments to be secured by vendor’s lien and deed of trust on said premises. Abstract to be furnished to date of sale by seller and title to be good. Property to be kept fully insured with loss payable clause in favor of lien.
“[Signed] H. W. Broaddus.
“I accept this contract of sale by McKee Bros. [Signed] John Sorenson, Agent.”

For reformation of the contract, it was alleged that in drawing up the contract, by accident, mutual mistake, or omission, the contract failed to state that Sorenson was to- take the land subject to the Elephant Butte irrigation project. Sorenson answered by general demurrer, general denial, and by special pleas, more fully stated later herein when necessary.

The ease was tried without a jury. The court overruled the appellant’s exception; found that appellee was entitled to a reformation of the contract to the effect that Sorenson had assumed the contract Broad-dus had with the Water Users’ Association under the Elephant Butte irrigation project for water for irrigation purposes for said land; that Broaddus is vested with title to said land, and was entitled to specific performance of the contract as reformed, and so entered judgment.

Under the first assignment appellant makes the contention, first, that Broaddus, having based his suit on the agreement that his land was under the Elephant Butte irrigation project, and that the land had been signed up under that project, and irrigation water thereby secured for the land, he was not entitled to recover unless he sustained this allegation, and this he had failed to do. While the court made no special finding that the land had been signed up for water for irrigation, H. W. Broaddus testified:

“I own the 150 acres in controversy. * » * This land is signed up under the ditch with the government. Yes; I have water there. 1 am familiar with the manner in which water rights are secured on property in the Rio Grande valley.”

W. A. McKee, the land agent effecting the sale, testified:

“Defendant, Sorenson, asked about the irrigation and whether or not the land was signed up. * * * That I did talk with Mr. Sorenson about the land being signed up under the Elephant Butte project, and I told him that it was under that ditch and signed up ready for irrigation, and he understood it was so signed up.”

Mr. Sorenson testified also that McKee told him that the land was under the Elephant Butte irrigation system and signed up, but that he did not tell him anything about the procedure concerning it; had lived in El Raso for 37 years; had in person inspected the land, and knew “the government was building the dam for the purpose of irrigating the land”; said:

“When Mr. McKee told me this land was under the irrigation system and had been signed up-for irrigation purposes, I believed him.”

The fact that the land was signed up under the government’s Elephant Butte irrigation project was clearly shown. It is also the contention of appellant under the first assignment that the abstract tendered by appellee failed to show a good title in appellee, but did show liens on the land in addition to the one -assumed, and that suits were pending against the land that would affect the title.

It might be sufficient to say that the trial court found that the title was in appellee, and that it could not be expected that we should pass upon a lengthy abstract in order to determine the fact of title. The evidence is undisputed that appellant’s attorney had passed upon the title and pronounced it good. We have examined the portion of the title in which it is claimed that the title through Martin Lohman and wife, who once owned the land, is not clear and does not show a good title. It would serve no good purpose to discuss that part of the title; suffice it to, say that the objection is not tenable.

While the record does show that at one time certain suits were nled in Dona Ana. county in which the title to said lands were, involved by the then owners, the matters in-, volved in the suits are shown by the record: to have been adjusted, and, while the record does not affirmatively show that the suits, were dismissed, it does not show that the suits, or any of them, are still pending, except as. hereinafter stated. It is suggested that a. suit filed by O. C. Snow in the district court of Dona Ana county, N. M., against Abelos,. and a large number of other water users under the Elephant Butte project in that county, and required to be brought by the United: States Reclamation Act for the purpose of’ adjudicating the water appropriation under, that system, should be determined befQre spe-. eific performance should be decreed.,

Richard E. Burges testified in reference to the institution of that suit He said, in substance, that he was the attorney for the El Paso Valley Water «Users’ Association. In the negotiations of the contracts with the United States government, the associations in Texas and New Mexico endeavored to wort in harmony, not only in the contracts with the government, but with each other as to a division of the waters of the Rio Grande; that he co-operated with Mr. Holt and Mr. Southerland, the attorneys for the Elephant Butte Water Users’ Association, and conferred with Mr. Holt in reference to bringing the suits in Texas and New Mexico for the same purpose; that under the Reclamation Act project, that was the only way there had been any attempt to handle that matter, that is, the distribution of water to lands under the Reclamation Act for irrigation; that the Reclamation Act does not attempt to destroy any vested rights or to interfere with any existing water rights; that when an irrigation project was inaugurated the Reclamation Act, or the Department of Justice, required proceedings to be instituted to ascertain what are the vested rights of people within the confines of the supposed irrigation project and the waters of the stream which the government is proposing to control.

In pursuance to these instructions a suit was instituted by himself in the name of Austin and others, against some 1,500 or more defendants in El Paso county, Tex., and the same character of suit was instituted in the name of Oscar G. Snow against a large number of defendants in Dona Ana county, N. M. We do not think it necessary to state in detail the evidence given by Mr. R. F. Burges, but state only enough to show that the suit of O. O. Snow-was a part of the plan through which the federal government in the Reclamation Act undertakes to control and serve .the waters of the Rio Grande to lands for irrigation purposes. Through the plan outlined by Mr. Burges, the operating expenses of the system are paid by prorated assessments on the lands signed up under the system for irrigation, and the debt to the government for the irrigation project is secured by pledge of al^ the lands under the project that enters into the Water Users’ Association, and the suits are instituted for the purpose of ascertaining the respective rights that •the parties signing up had in the waters of the Rio Grande at the time the United States government filed upon all the unappropriated waters of the Rio Grande.

We think the purpose of the Osear C. Snow suit is further clarified by certain letters from Wade, Taylor & Wade, attorneys in New Mexico, written in explanation of the Snow suit, and introduced in evidence by defendant, to the effect that the suit was filed by direction of the Water Users’ Association under the Reclamation Act for the purpose of determining the owners of water rights and the respective priorities of those owners in the flowing waters of the river. In the suit filed, the association sought to enforce certain assessment levies upon certain delinquent land owners where payment had not been made. It is not claimed that assessments under the Wlater Users’ Association project made on the lands involved in this suit had not been paid.

We think that under the trial court’s finding of fact Sorenson took the land subject to whatever method the government under the Reclamation Act had then or thereafter would adopt, whether through the Snow suit or otherwise, in handling the matter of furnishing water for irrigation through the Elephant Butte irrigation project, and comes within the terms o.f the contract as reformed, and was assumed by him.

Finding no reversible error, the case is affirmed.
      í&wkey;Éor other cases see same topic and KEY-NUMBER in all Kcy-Numhered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    SCHAUER v. SCHAUER.
    (No. 839.)
    (Court of Civil Appeals of Texas. El Paso.
    April 11, 1918.
    Rehearing Denied May 9, 1918.)
    1. Appeal and Error <&wkey;219(2) — Failure to Make Finding — Reversible Error.
    Failure to make finding upon an issue does not present reversible error, where such failure was not called to the attention of the trial court.
    2. Public Bands <&wkey;178(2) — Lands oe State —Substituted Purchaser — Forfeiture.
    Where sale of public free school lands to original purchaser was valid, a substituted qualified purchaser, who was an actual settler upon the land at the time of purchase from original purchaser, acquired title by original purchaser’s conveyance, although the transfer and substitute obligation were -not filed in the general land office.
    3. Public Lands <&wkey;173(21) — Sale—Cancellation — Authority of Land Commissioner.
    Land commissioner has no authority to cancel a sale of public free school lands for collusion.
    4. Estoppel <&wkey;27(2) — By Deed — Grantor and Privies.
    If defendant, substitute purchaser of public free school lands, had filed in the general land office his transfer, together with the statutory affidavit negativing. collusion and his substitute obligations for unpaid purchase price, the question of collusion could not be raised by plaintiff, subsequent purchaser, for the purpose of invalidating defendant’s title.
    5. Public Lands &wkey;178(2) — Title—Statute of Limitations.
    Where forfeiture of sale to A. of public free school lands by land commissioner was unauthorized, a suit by B., a subsequent purchaser from A., against C., a prior purchaser from A., not filed until more than a year after award to A. and B., and more than a year after Acts 29th Leg. c. 29, §§ 1, 2 (Rev. ■ St. 1911, arts. 5458, 5459), limiting time within which purchasers of such lands may sue therefor to one year, became effective, would be barred; statute being applicable in ease of unauthorized forfeiture by land commissioner.

      6. Public Lands <&wkey;173(21) — Sales—Validity — Dibect Attack.
    Since the state could recover from a substitute purchaser of public free school lands only by a direct suit, an attempted forfeiture of sale by land commissioner for collusion was void.
    7. Public Lands <&wkey;173(21) — Sale of School Lands — Limitations.
    The purpose of Acts 29th Leg. e. 29, §§ 1, 2 (Rev. St. 1911, arts. 5458, 5459), barring suit by one claiming right to purchase public school lands theretofore sold to another in one year, is beneficent and should be liberally construed, to the end that title to such lands may not be subject to any uncertainty arising out of an unauthorized forfeiture.
    Appeal from District Court, Crockett County; J. W. Timmins, Judge.
    Su,it by Charles Schauer against Otto Schauer. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    See, also, 185 S. W. 653.
    Cornell & Wardlaw, of Sonora, for appellant. Ed. J. Hamner, of Sweetwater, for appellee.
   Statement of Case.

HIGGINS, J.

This suit involves the title to land originally belonging to the public free school fund. It was brought by appellant, Charles Schauer, against appellee, Otto Schauer. The case was tried before the court, and judgment rendered for defendant. Charles Schauer appeals. A condensed statement of the material facts found by the court is as follows:

On January 22, 1901, Clarence Rotsman applied to purchase the lands in controversy, as an actual settler upon one of the sections. He made the affidavit required by law and filed his obligations for the unpaid purchase money, and made the cash payment as required by law. On April 19, 1901, the commissioner of the general land office sold and awarded the land to Rotsman on his said application. Rotsman, in good faith, continued to reside upon and occupy one of the tracts as a homestead, in every manner complying with the law until May 5, 1902, when he and his wife in due form conveyed the lands to appellee, Otto Schauer. The conveyance was signed and acknowledged by defendant, and defendant therein obligated himself to pay all moneys due the state on said lands. This conveyance was recorded in the deed records of Crockett County on May 21, 1902.

After the date of this conveyance, Rotsman left the land and never thereafter occupied the same. Before and at the time of aforesaid conveyance, Otto Schauer, with his wife, entered upon the home section and have occupied the same as their home ever since, and are now so occupying the same. All interest payments due upon the unpaid purchase money to the state by Rotsman were i»ade up to the date of his conveyance to Otto Schauer, and thereafter Otto Schauer made all such interest payments, up to and including the year 1909, when further payments were refused by the state. The sale of the lands to Rotsman remained in good standing in the general land office and the account therefor on the books in state treasurer’s office until January 28, 1910.

On January 28, 1910, across the face of each of the obligations of Rotsman filed in the general land office was written in red ink: “Land forfeited for collusion and for failure to occupy. J. T. Robison, Com. Dibrell 1/28/1910” — and on each of the accounts kept with Rotsman in the state treasurer’s office was written in red ink, “Forfeited 1/28/10,” and on said date the comniissioner of the general land office wrote a letter to the clerk of the county court of Crockett county, Tex., advising him that the sales of the lands in suit to Rotsman had been canceled, and requesting said clerk to make enteries on his record showing such cancellation of said date.

On January 28, 1910, Charles Schauer in due form applied to purchase the land, his applications being filed in the general land office on January 31, 1910, and on February 15, 1910, the commissioner of the general land office awarded the lands to him. In due time and in due form, Charles Schauer made and filed in the general land office the affidavit of settlement required by the law then in force. Charles Schauer complied with the law as to settlement and occupancy, and on March 5, 1913, filed his proof of three years’ continuous residence and occupancy, and on March 7, 1913, the commissioner of the general land office issued to him a certificate of occupancy which was filed for record in Crockett county on March 19, 1913, and duly recorded. All interest payments due on the lands by plaintiff have been paid and the sales to him appear in good standing in the general land office, and his accounts with the state are in good standing.

This suit was filed by Charles Schauer on August 24, 1911, and is the first and only suit ever filed between plaintiff and defendant with reference to the title of said lands. Other findings of fact were made, but they are not pertinent to a consideration of any of the questions presented by this appeal, and it is unnecessary to state the same.

Opinion.

The court below did not err in its finding of fact that before and at the time of the conveyance from Rotsman to defendant the latter and his wife entered upon the home section and have occupied the same as their home ever since. The evidence abundantly supports the finding. In fact, such fact appears from the record to have been admitted by plaintiff.

The court made no finding as to whether or not defendant was in collusion with Charles Schauer, Sr., father of the plaintiff, at the time of the conveyance by Rotsman, and as to whether defendant was purchasing the land for Schauef, Sr. It does not appear that the failure to make a finding upon this issue was called to the attention of the trial court and that it refused to make a finding thereon. ' Upon this state of the record, this matter does not present reversible error. Fitzhugh v. Land Co., 81 Tex. 306, 16 S. W. 1078; Hensley v. Lewis, 82 Tex. 595, 17 S. W. 913; Hatton v. Lbr. Co., 57 Tex. Civ. App. 478, 123 S. W. 163; Yeatch v. Gray, 41 Tex. Civ. App. 145, 91 S. W. 325. However, under our views, this issue is immaterial, and it will be assumed that defendant was in collusion with Schauer, Sr.; the latter being interested in the purchase by defendant of the land from Rotsman.

Upon the facts found, the sale to Rots-man by the state was valid. Defendant, being a qualified purchaser and an actual settler upon the land at the time of his purchase from Rotsman, acquired title by Rots-man’s conveyance. It was not essential that he file his transfer and substitute obligations in the general land office. His failure so to do did not defeat his title. Taylor v. Burke, 66 Tex. 643, 1 S. W. 910; Lee v. Green, 24 Tex. Civ. App. 109, 58 S. W. 847; Payne v. Cox, 143 S. W. 336.

Conceding that defendant was in collusion with Schauer, Sr., when he purchased from Rotsman, this did not authorize the commissioner of the general land office to forfeit the sale on that account. The land commissioner has no authority to cancel for collusion. Salgado v. Baldwin, 105 Tex. 508, 152 S. W. 165. The other reason assigned for the forfeiture, namely, “failure to occupy,” is shown by the trial court’s finding to have. been unauthorized, because as a matter of fact the land had been occupied by Rotsman and defendant in compliance with the law. Johnson v. Bibb, 32 Tex. Civ. App. 471, 75 S. W. 71; Chambers v. Rawls, 158 S. W. 208.

It is apparent that the only possible defect in the defendant’s title is that arising out of the fact that when he acquired the land from Rotsman he was in collusion with Schauer, Sr., who was interested in the purchase. If defendant had filed in the general land office his transfer, together with the statutory affidavit negativing collusion, and Kis substitute obligations for the unpaid purchase money, and the same had been accepted by the land commissioner, it is settled that the 'plaintiff could not raise the question of collusion for the purpose of invalidating defendant’s title. Logan v. Curry, 95 Tex. 664, 69 S. W. 129.

But this was not done by defendant, and it may be that, in the absence of a showing of a due substitution in the general land office, an adverse claimant under a subsequent purchase may raise the question of collusion. Hanna v. Robison (Sup.) 128 S. W. 108.

We make no decision upon that question, as it is not necessary, believing that the plaintiff’s suit is barred by the Act of the 29th Legislature, c. 29, which reads:

“Section 1. Be it enacted by the Legislature of the state of Texas: That hereafter all persons claiming the right to purchase or lease any public free school lands, or any lands belonging to the State University, or either of the state asylums which have been heretofore or which may be hereafter sold or leased to any other person under any provision of the law authorizing the sale or lease of any of said lands, shall bring his suit therefor within one year after this act goes into effect, or after the date of ■the award of such sale or lease, if such award is made after the taking effect of this act, and not thereafter.
“Sec. 2. If no suit has been instituted by any person claiming the right to purchase or lease any of said land within the period of time limited in the first section of this act, it shall be conclusive evidence that all the requirements of the law with reference to the sale or lease of such lands have been complied with; provided that nothing in this act shall be construed to effect the state of Texas in any action or proceeding that may be brought by, it in respect to any of said lands.”

In the Revised Statutes which became effective September 1, 1911, this law, with some change of verbiage, appears as articles 5458, 5459. The law quoted above became effective in 1905. Now, upon the facts found, it appears that the land was originally sold and awarded April 19, 1901. The sale remained in good standing until January 28, 1910, when the land commissioner made an unauthorized forfeiture.

This suit is by a subsequent purchaser, and was not filed until more than a year had elapsed after the law of 1905 had become effective and after the award to defendant’s vendor, and also more than a year after the award made to plaintiff. The plaintiff is claiming that he had the right to purchase and did purchase the land by virtue of his applications filed in the general land office on January 31, 1910, and the award to him made February 15, 1910. His right necessarily depends upon the existence of some fact which defeated the title theretofore acquired by defendant.

Conceding that the question of collusion can be raised by plaintiff, and that it would defeat the defendant’s title, it nevertheless appears that the suit has not been brought within the time limited by the first section of the act of 1905. In Slaughter v. Terrell, 100 Tex. 600, 102 S. W. 399, this law was construed, and the court said:

“In order to ascertain what the Legislature intended by the enactment of this law, we must consider the evil that existed, and determine what the remedy was to be. Under the law as it previously existed, purchasers of school lands were liable to have their titles attacked by thirfl persons who desired to purchase the land, and such persons might call in question the qualification of the purchaser as well as the performance of conditions prescribed by law, for example, that when the purchase was made the purchaser did not actually reside upon the land, or that he did not intend to make it his home, and thus, although the state recognized his right, the purchaser was constantly exposed to such attacks. This rendered, such titles uncertain, and to remedy that evil the Legislature enacted the law now under consideration, which requires that any person who desires to purchase land theretofore purchased by another shall bring his suit to set aside the former purchase within twelve months of the award of it, or he will he barred. Clearly this applies only to cases where the state recognizes the validity of the purchase being attacked, and does not apply to a case like the present, where there has been a forfeiture of the former purchase by the land commissioner, and the land again put upon the market. There is no necessity for a suit by a purchaser of forfeited land; indeed, to so hold would be to say that the commissioner had the power to declare the forfeiture, although the award may have been made many years before that time, and the power to sell the land, but that the purchaser at the second sale could not get possession of the land because his suit could not be brought within a year from the award to the first purchaser which had been forfeited. .Such an absurd result is a sufficient answer to the contention for that construction.”

It will be noted that it is said that the statute applies only to cases where the state recognizes the validity of the purchase attacked, and does not apply to a case where there has been a forfeiture of the former purchase by the land commissioner, and the land again put upon the market. This language is broad enough to exclude the idea that the present case falls within the statute, but it must be remembered that the language was used upon a state of facts showing an authorized forfeiture. Here the forfeiture was unauthorized.

The only ground upon which the state could recover from Otto Schauer is collusion. It could recover upon that ground in a direct suit only, and no such suit has been instituted. The state, so far as its authorized officers are concerned, has not questioned the validity of his title arising out of collusion. The act of the land commissioner in attempting to forfeit upon that ground was not authorized by the state. It has withheld such authority from the land commissioner. Salgado v. Baldwin, supra. The attempt to forfeit for collusion was a complete nullity. It did not invalidate defendant’s title. Smithers v. Lowrance, 100 Tex. 77, 93 S. W. 1064.

To deny the applicability of the act in cases of unauthorized forfeitures by the land commissioner would expose the purchasers of school lands to all of the uncertainties of title which, in Slaughter v. Terrell, it was said by Judge Brown it was the intention of the Legislature to dispel.

The purpose of the statute is beneficent. It should be liberally construed to the end that title to free school lands may not be subject to any uncertainty arising out of unauthorized forfeitures. The rights of the state are fully protected by the proviso in the second section. There is nothing to prevent it from instituting a proceeding by its proper authorities to recover this land on account of collusion. Since it has withheld from the land commissioner the authority to cancel for collusion, it should not be considered that the unauthorized assumption of such power would remove a case from the operation of the act of 1905. The attempted exercise of the right to forfeit for collusion was an unofficial act and could not prejudice the rights of Otto Schauer, who held under Rotsman. Smithers v. Lowrance, supra.

In other words, the holder of title to school land cannot be deprived of the protection of the statute simply by an authorized and void forfeiture declared by the land commissioner. The language of this statute renders it very difficult of interpretation. The construction placed upon it is in harmony with the view of Judge Brown, that it was intended to remedy the evils incident to uncertainty in the title to school lands. This construction protects the right of the state in a proceeding brought by its authorized representatives to attack for collusion any school land title which was collusively acquired; it protects a subsequent purchaser where there has been an authorized forfeiture by the land commissioner; and it further protects original purchasers against unauthorized and void forfeitures declared by the land commissioners which otherwise would deprive them of the protection of the act of 1905.

Upon the former appeal of this case it was reversed, because the trial court excluded evidence offered by Otto Schauer (appellee here), to prove that the forfeiture of the Rotsman purchase was illegal and void. The court said:

“Hence we conclude that the trial court committed error in holding that appellant had no right to prove facts which would show that the alleged forfeiture of the Rotsman title was illegal and, void. If the facts were as appellant offered to show, then the Rotsman purchase was not subject to forfeiture by> the commissioner of the land office, and appellee acquired no right when he attempted to purchase the land, and when the commissioner of the land office attempted to award it to him. If the Rotsman purchase was legally canceled, then the statute construed in Nations v. Miller, supra [146 S. W. 261], will apply, and cut off appellant’s right to assail appellee’s purchase.” (Italics ours.) 185 S. W. 653.

This language shows the important distinction between authorized and unauthorized forfeitures made by the land commissioner, and clearly recognizes the fact that if the forfeiture was unauthorized it was void, and appellant, Charles Schauer, acquired no- right under his attempted purchase in 1910. It distinctly holds that if the forfeiture was legally made then the act of 1905 applied, and precluded appellee, Otto Schauer, from assailing Charles Schauer’s title. Upon the view expressed upon that appeal, it would seem to follow that if the forfeiture was illegally made then Otto Schauer would be protected by the statute, although that question was not directly passed upon.

From what has been said, it follows that plaintiff Charles Sehauer’s suit was barred by the act of 1905, and the judgment should be affirmed.

Affirmed.
      ®=}For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©^jFor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes