Appendix — City of El Paso v. Simmons

Supreme Court brief1965

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- UNITED STATES COURT OF APPEALS

neasiane J

* \

No. 19,754,

GREENBERRY SIMMONS, .- --- -_ : Appellant,

versus

GITY OF EL PASO, ~ - - - - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

¥ . WESTERN DISTRICT OF TEXAS.

- HAROLD S. LONG,

‘Caples Building,

. Fl Paso, Texas,

GREENBERRY SIMMONS,

Kentucky Home Life Building,

Louisville 2,-Kentucky,

Attorneys jor the Appellant.

October 3, 1962.

WESTERFIELO-BONTE CO.. INCORPCRATED, LOUISVILLE. KY.

+ RIDER SHEET.

This is an appeal fom an Order of Dismissal which

_ was entered by the District Judge.

This brief was printed for the District Court. No

written opinion was filed by the Court. The Plaintiff’s

Motion for Summary J udgment was Denied (R. 34,

143-145).

‘The Defendant’s Motion for Summary Judgment

was sustained, and the suit dismissed with Judgment

for the Defendant (R. 143-145).

Plaintiff’s Motion and Petition for Rehearing eall-

ing attention to the claimed errors was ov erruled (R.-

133-138).

The Appellant wil! he weferred to throughout this

brief as the Plaintiff and the Appellee will be referred - |

to as the Defendant.

The Specification of Errors will be found on Page

16-a of this brief. “The Bricf of — will be

found on Page 16b-15i.

I, Gre enber ry ‘Simmons, certift that I have this Sth

day of October, 1962, mailed a copy of this brief to

Mr. Morris A. (talatzan, El Paso Natural Gas Build-

ing, El Paso, Texas, Attorney of Record for the Ap-

pellee, City of El Paso.

(s) GREENBERRY SIMMONS

: F . : PAGE

MO conics nsiccpssoxecsxoninas 1

THE QUESTIONS... ................000005 seat =m

STATUTES INVOLVED ..: ..................05- 3-5

CONSTITUTION INVOLVED . PN NN 6, 43-52

STATEMENT OF THE CASE Tees Se

- The Contracts and Awards of Settler’s Vendee

Made in 1910 Are Sources of Plaintiff's Titles.. 6

I. Contract Includes Chapter 129, Act 1897....... 7-9

Hl. Land Commissioner's Letter Acknowledges Re-

quest for Reinstatement of the Forfeited Lands

. and Payments for Same But Refused It, Based

on the Wrong Act of 1951..,................. 9-12

IV. Act of 1897 Applies and No: the Subsequent

Amended Act of 1951..../....... peannie dae 12-14

V. Settler-Vendees Rights to Reinstate Their For-

_feited Lands Is a Vested Right According to the

" Supreme’ Court of Texas..... SS yer e 15

SUMMARY OF POINTS IN ARGUMENT..... = ot

ARGUMENT . Spee Te ce Oe ho er ae "17-52

FIRST POINT: ‘There Is No Genuine Issue as

to Any Material-Fact and the Plaintiff Is Entitled -

to a Judgment as a Matter of Law Under His Mo-

tion for Summary Judgment. F.R.C.P. Rule 56... .17-20

Snider v. Methvin, 60 Tex. 487, 494, S. Ct. Tex.

(No S. W. citation, as it was before S. Ww. Re-

porter started) ............ se rerereee ered 19

PAGE

Holman v. Chevallier, 14 Tex. 237, 339, S. Ct. Tex.

_ (No S. W. Reporter cited)......e eee errr - 419

Gulf Production Co. v. State, 98 Tex. 237, 231 - .

S. W. 124, 127, Civ. App.» 1921, error refused. 20

SECOND POINT: flsintiff Substantially Oom- «

plied With the Requirements of. the State Statute — ;

Specified in the Contracts of 1910 for the Reinstate-

ment of the Forfeited Lands.....-. EES .. 20-4

Cruzan v. Walker, 119 Tex. 189, 26 S. W. of 98

909, S. Ct. Tex., BOOED... ccrvccvees 20, 21-25, 27, 30, 33, 24

* of May 19, 1897, P|. See 91-24, 33,34

Gulf Production Co. v. State, 88 Tex. 237, 231 .

S. W. 124, 127-128, 132-134. ....-----: 20, 25, 26-32

Hooks v. Kirby, 58 C. A. 335, 124 S. W. 156 (Writ °

of error denied)....-------77777"""" godess -_

Wing v. Dunn, 127 S. W. 1101 (Writ of error de- '

nied), 128 S. W. Oe onucensuusenseentees 28

Jumbo Company V. Bacon, 14 S. W. 840.. ere

Bates v. Bratton, 96 Tex. 279, 72 8. = seep "98

Houson Of Co. v. McGrew, 176 S. W. 45.5).--+°: 28

Art. 5423 (Now Art. 5326) (Art. Se 23, 28-31

Freels’v. Walker, 120 Tex. 291, 26 5. W. 2d 627, : |

629, 630 PEND. cavnsevsacneseesstererseet* 31-32

State v. Walden, 325 S. W. 2d 705, 711 (1959). . 31-32

_ Board of Ins. Com. of Tex. v. Great So. Life Ins..

~ Co., 150 Tex. 258, 239 S. W. 2d 802, 909...-- 32

Oklahoma Zool and Supply Co. Vv. Daniels, 290

S. W. 727,.Com. App. ae LC gaeaceees 32

Anderson, et al. v. Neighbors, 94 Tex. 236, 59

S. W. 543, 544, 546, 8. Ct. Tex., 1900. . .24, 28, 32, 33

iii

| ‘THIRD POINT: The Land Commissioner Did

Not Have the Authority to Place These Lands on

PAGE

the Market for Resale and Issue the Patents ts the )

‘Defendant Until After the Attorney General o! the

Btate Had Adjudicated the Olaims of the Plaintiff

to These Lands. . vuuveenieves cicvtadedeavienden’ 34-42

Snider v. Methvin, 60 Tex. 487, 494, Ss. Ct. Tex.

(No S.,W. cited) .........-. eee e eee eeeeeees

Holman v. ‘Chccalller, 14 Tex. 337, 339, S. Ct. Tex.

(No S. W. cited)........-e cece cece ee eeeees

Acts of Feb. 23, 1900, Sec. 8, ch. 11, p. 29 at pp.

33-34, See First Called eer rr

‘ Juencke v. Terrell, 98 Tex. 237, 82 S. W. 1025,

1026, S. Ct. gene esata einensmne

Texas Constitution, of State 6f Texas, Art. i,

ee cueepennmaw en "37-38

Southern Pine Lumber Co. v. Consolidated Louts-

iana Co., 217 F. 719, 723-725, C. A. 5, 1914. . 38-40

Fitzgerald v. Robison, 110 Tex. 469, 220 S. W.

768, 769 (1920)......:-. Qrcccet eee e tees tees 40)

Texas Art. 5468 (Now 5420)....... PEPE 37, 40

State v. Bradford, 121 Tex. 515, 50 S. W. od 1065,

1079, S. Ct., 1932... 22... cece eee enters 41

Davis v. Morley, 169 S. W. 2d 561, o64- 565, Civ.

Be is a cinacdiuwecsncsineceecases 4!

Foster v. Gulf Oil Corp., 335 S. W. 2d 845, 848,

y ai SS cakgvetensmersveseeers 41

; : ! PAGE

FOURTH POINT: If the Land Commissioner

and His Attorneys Were Correct in’ Refusing Plain-

- tiff’s Reinstatement Because the Legislative Change

in the Acts, of 1/41, 1951, 1955, Then These Legis-

lative Acts, Taken Together, Impair the Obligation

of Contract; Insofar as They Attempt to Apply to

Contracts Made Before Their Enactment and Are

Unconstitutional’... .......---ee eect errr reees -, 43-52

Vested Rights to reinstate forfeited lands, per

Supreme Court of Texas, cases cited -previ-

QO cc cccvcndncveneecenrnsereterenaccess ;

Acts of 1897, ch. 129, p. 18D. .....- ee eee eee 43-44

Acts of 1941, 47th Leg. p. 351, ch. 191, Sece.:3, -

_ (Art. 5326 formerly Art. >) ee -, 43, 44

_. Acts of 1951, 52d Leg., p.92, ch. 59, Sec. 2, (Art. -

5326 formerly 5423)...... eereccees . 2.43, 44, 46

Constitution of U. S., Art. 1, See. 10. . 43, 44, 46, 47, 49

Gulf Production Co. v. Stlite, 98 Tex. 237, 231

SH. Wi 1BB, 131... cece crc cee cree: Ee

Bradley v. bightcap, 195 U. S. 1, 20, 24 (1904). . .44-46°

Frank v. The State Bank and Trust Co., Tex.

Com.- App. 1924 (Entered as judgment of

Supreme Court, Tex.), 263 S. W. 255, 256, 258.4648

6 Ruling Case Law, pp. 329, Mc cvereteerreses 47

Drumuright, et al. v. Texas Suqarland Co., et al.,

16 F. 2d 657, 658, C. A. 5, 1927, Cert. denied,

. i a, Ser Prrrrrerrrt rr Cree 48

- Constitutional Law in U. S., ard. ed., Thomas M.

Cooley and Andrew C. McLaughlin, p. 331. . .48-49

Pennoyer v. McConnaughty, 140 U. S. 1, 9, 10,

IN Sev rece renctaticcnsivers snr tnerss 49-50

Osborn v. Bank, 9 Wheat 738.......--+-- See

Daris v. Gray, 16 Wall 203.......---+++eer eee 49

Bodrd v. McComb, 92 U. S. 531, d41....-.---- ae

Allen v. The Railroad Co., 114 U.S. 311......--. 49

New Jersey v. Wilson, 7 Crahch 164, 167.....-... 50

- PAGE

Sovereign Camp_v. Wilentz, 23 F. Supp. 23, ap-

peal dis. 306 U, S. 575, D:C.N.J., 1988: ...... 50

Columbia Ry. v. So. Carolina, 261 U. S. 236, 248,

* 251 (1922) oo. wc crcsevveveervedes POCA ee

- Act of 1955, Senate Bill No, 295, ch.°278, 56th Leg-

islature, Regular Session 1955. Not in any of

Vernon’s Civil Statutes of the State of Texas

but filed in Secretary of State’s Office for

ee eerie iauws 51

Green v. Biddle, 8 Wheat 1, St.........- aang. ae

CONCLUSION ... ...@..-- 2 ccc c cece teenies vee o-O4

Acts of 1897, ch. M9, p..185........---- see e eee 52.

Acts of 1941, 47th Leg., p. 351, ch. 191, See. 3... 92

Acts of 1951, 52nd: Leg., p. 92, ch. 59, See. 2..... 92

Act of 1955, Senate Bill ‘No.-295, ch. 278, 56th

. _ Legislature, Regular Session 1955.” Not in

any of Vernon’s Civil Statutes of the State of

Texas but filed in-Secretary of State’s Office

‘for State of Texay............- eee eee eee ie

Davis v. Yates, 63 C. A. 6, 133 S. W. 281, 285, 286,

Writ of Error Dis. 1911.......cceecceers a

ee See reo ere eee | =

Appendix UU r errs ey Eek eeu en 4, 57-358

Appendix No. 3............ Le ee PT 4, 5-60

Appendix No. 4...........--..-- seer seers ees 0, OT, 61-64

Appendix No- 5. .......... cece cee eee eee ences 4, 37, 65

PAGE

* Allen. wThe Railroad Co., 114 U.S. 311....-----+ ++ " 50

Anderson, et al. v. Neighbors, 94 Tex. 236, 59 S. W.

543, 544, 545, S. Ct. Tex. 1900..... Jesevens 24, 28, 32, 33

Bates v. Bratton, 96 Tex..279, 72 S. W. 157-..------ . 2

Bradley v. Lightcap, 195 U.S. 1, 20, 24 (1904)...--- 44-46

Board of Ins. Com. of Tex. v. Great So. Life Ins. Co.,

150 Tex. 258, 239 S. W. 2d 802, eo

Board v. McComb, 92 U. S. 531, 541.....--- aaeanes 50

Columbia Ry. v. So. Carolina, 261 U. S.°236, 248, 251

"(19BB) oe cgeceeercceeeeeeses: pee Lauveee tad 52

Constitution of U. S. Art. 1, > See 6, 43

. Constitutional Law of U. S. 3d ed. by Thomas M.,

Cooley and Andrew McLaughlin, p. . arr -48-49 ~

Cruzan v. Walker, 119 Tex. 189, 26 S.. W. 2d 908, 909,

S.Ct. Tex., 1980......---- eee eeres 12, 20, 23, 24, 27, 30,43

Davis v. Gray, 16 Wall Se Peeper errr oe 50

Davis v. Morley, 169 S. W. 2d 561, 564-565, Civ. App.

ee. BEE, ws sesovessvnssvsncssseerentss oouas 1

Davis v. Yates, 63 C. A. 6, 133 S. W. 281, 285, 286,

Writ of Error Denied (1911)....-- eee rere eee: 7 ae

Drumwright, et al. v. Texas Sugarland Co., et al., 16

F. 2d 657, 658, C. A. 9, 1927, Cert. Denied, 274

Oe UD, ics nacenccascesncerensesesserestet*® 48

Ely v. New Mexico and A. R. Co., 129 U.S. 291.-...-- 1

Fitzgerald v. Robison, 110 Tex. 469, 220 S. W. 768,

TED (19BO) ..- vaccccserseseserrset® Perey 40

Foster v. Gulf Oil Corp., 335 S. W. 2d 845, 848, Civ.

App. Teta TPO... Fe---e0cse serene ree 41

Frank v. State Bank and Trust Co., 263 S. W...235, 256,

958, C. App. Tex.; 1924 (Judgment adopted by

S Cr, of Teme)... eve cecenssresecserses: aes 46-48

Freels v. Walker, 120 Tex. 291, 26 S. W. 2d 627, 629,

630 (1930), Com. of App., Rehearing denied... . .31-32

. _ vii

PAGE

Green v. Biddle, 8 Wheat 1, 84.....-..---++-eeee0> 52.

Gulf Produttion Co. v. State, 98 Tex. 237, 231 S. W.

124, 127-128, 131-135, Civ. App., 1921, error re- -

Pane)... « cocevenesccevonssveeseceoees 20, 25, 26-32, 44

Holman v. Chevallier, 14 Tex. 337, 339, S. Ct. Tex.

(No S. W. Reporter cited)....... Bea. i, IE pee 19, 36

Hooks’ v. Kirby, 58 C. A. 335, 124 S. W. 156, Civ. App.

Tex., Writ of Error Denied........--..---+++>> 28

Houston Oil Co. v. McGrew, 176 De We Ge vccesscues 28

Juencke v. Terrell, 98 Tex. 237, 82 S. W. 1025, 1026,

S. Ct. Tex., 1904... ioehan ween s weed, 37-38, 39, 40, 41

Jumbo Co. v. Bacon, 14S. W. 840........---++ee eee 28

Louisville & Nashville Ry. Co. v. Western Union Tel.

~~ Co, 234 U. S. 369, 377-378 (1914) .....--- eee ee ee gk

New Jersey v. Wilson, 7 Cranch UR SE co ancsnecsen 0

Orborn v. Bank, 9 Wheat 738. P ie miaed credential a).

Oklahoma Tool and Supply Co. v. Daniels, 290 S. W.

727, Com., App., Tex. ....--.e-eeee reer rere eee: 42

Pennoyer v. McConnaughty, 140 U.S. 1, 9, 10, 24, 25. .49-50 -

Porter v. Cook, 63 F. 2d 637, C. A. 5, 1933........ sees 1

6 Ruling Case Law, pp. 325, 365. . ieee y ete 47

Snider v. Methvin, 60 Tex. 487, 494, S. Ct. (No . aon

Reporter number cited).....----+++--++s5507&: 19, 36

Southern Pine Lumber Co. v. Consolidated sii

Co., 217 F. 719, 723-725, a = Ss Sees 4, 38-40

+ Sovereign Camp v. Wilentz, 23 F. Supp. 23, appeal |

dis., 306 U. S. 573, D.C.N. S, vianauwes rata wf)

State v. Bradford, 121 Tex. 519, 50S. W. 2d 1065, 1079,

i rere 4]

State v. W oe 325 S. W. 2d 705, 711, Civ. App. Tex.

Prrrrrrrrr rrr tk 31-32

Texas Conaiiontns 3 Art. 14, See. 2. Te ee aaa i 3s

Vill

PAGE

Texas Statutes: |

Texas, Art. 5261 and Alte. 0262, 5263, 9265, Vol. ‘1B

Vernon's Civil Statutes of the State of Texas,

“Annotated - Ne ak A Ee Sep Ot ataret® » 9,19

Texas, Acts i897, 129, Pp. 06.....3),, $42 i, 8, 12, 13,

: 14, 21-23, 31, 35,

34, 36, 45, 44, o2

Texas, Acts 1900, Sec. 8, ch. 11, p. 29 at PP. 33-34,

Pee Se I, io vec cha creer seek comers 4,37

Texas, Acts Approved April 19, 1901............. 7

Texas, Acts 1941, 47th Leg., p. 307, oh. Py, See. 3

(Art. 5826 formerly 5423).......2-4,9, 13, 14, 16, 34,

; -. 43, 44, 46, 52,9

Texas, Acts 1951, 52nd Leg., p. 92, ch. 59, See. 2

(Art. 5326 formerly 5423, 4218f). .2, 4, 9, 12-16, 33, 34,

36, 45, 44, 46, 52. 3

Texas, Aéts 1955, esite Bill No. 295, ¢h. 278, 56th

Leg., Regular Session 1955 (Not in anv of Ver-

non's Civil Statutes of the State of Texas, but . 4.

filed in Secretary of State’s Office for State of: 4

le ys Sa a oa se . ody oy 0} 14, 16, 43, 44, 31, 33

Texas, Art. 5326 formerly Art. 5423 (AXets 1951,

WOIUEE it ec seen an SOE We ene lars Seer reer 3,12, 23

Toxas, Art. 5400, 5874, 4189: Aets 1883, p. 113, G. Is

a i Os Ss ob rene acne eenkedes d

Texas, Art. 5411, 5378, 5404; Acts 1883, p. #13, G.L.

ee Re Pere eee Le Pere rr Tee 5)

Texas, Art. 5120 (5468) (Adverse to State Claimant,

Se aaa Reine Me ROENy ep EOP ARG eat ren Rar Ene pee gers prot, 40

Te vas, Acts, Art. 5428 Now Art. 5: B26, Venere 3, 28.-30

H8 TSCA Rule RG, 000. eee ee ere 17

ee Dee Ue Se i Bs mk a he ee owen epee ee 9,72 .

ws USCA. Rule.56, FRCP. oo. EN nts 2.16, WV

oe Se Eee ere tree reo rae

PS UIS.CLA, 1655, 62 Stat. 944, June 25, 1948, ¢. 646.

(Formerly 118) (See Notes 298, 62, 55) Clue geass 2

Wing v. Dunn, 60 Tex. C. A. 16,127 5. W. 1110 (Writ

of error denied) [Sup.j 128 8. W. 108... ae ae 28

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

EL PASO DIVISION -

‘ eh Civil No. 2334.

eq.

s ‘ ° °

@eexserny SmmMons, - - - - Platntrff,

a *

we a ~%

Ciry or Ex Paso, - - - 9 - - Defendant.

BRIEF FOR PLAINTIFF ON PLAINTIFF'S MOTION

FOR SUMMARY JUDGMENT.

JURISDICTION,

Jurisdiction of this action exists by the virtue of

the diversity of citizenship between the defendant and

the plaintiff and the controversy exceeds exclusive of

_ interest and cost, the sum of $10,000.00. 28 ULS.CLA,

1332. Ely v. New Mexico and A. R. Co., 129 U. 8-291.

* The defendant in- its answer has admitted Para-

gr aph 1 of the plaintiff's complaint. KR.

- Jurisdiction is further found on title 28 USCA

1655 involving the question of title to real estate locat a

within this District. “Louisville and Nashville Rnil-

way Company v. Western Union Telegraph Company,

hci I’. S. ane, 377-378 (1914). Porter v. Cook, 63 F. 2d"

a 037, CLA. 5, 1933.. 2. 9° Coe

THE QUESTIONS. ay oobi,

1. There is no gennine issue cas to any material

fact and is plaintiff entitle dtoa judgnic nt as a matter.

of law under F.R.C.P.., Rule 56? ei seek

2. Did plaintiff substantially comply with the re- =~

quirements of the Act in the reinstatement of his for-

feited lands in 1952? oe Kaa 4

3. If platntiff did legally reinstate his land or if

he did prot do so, was it the duty of the: Attorney : ,

General of the State of Texas to adjudicate and clear

plaintiif’s ‘claim, on record in the Land Office, inelud-

ing the contract of 1910, to the title to these lands

before they eould be offered again for resale by the

» Land Commissioner ?

4. If the Land Commissiongr~ayd his attorneys

“were correct in re fusing’ plaintiff’ Ss Teinstatement, be-

cause the legislative Cecondnn ‘nts in the Acts of 1941,

1951, and the Act of 1955, then do these legislative

Acts taken together impair the obligation of contract, adh

insofar as they attempt to apply to contracts made ° :

before their enactment, and are uneonstitutional ? he

STATUTES INVOLVED.

T. Aets 1897 ¢. 129 p. 185 Statute in ferce when

~c¢outract in 1910 was made covering reinstatement of

forfeitedMands. The portion of the statute: involved

is as follows:

“Tn any case where lands have been forfeited

‘to the state for non: payment of interest, the pur:

chasers or their vendees may have their claims

reinstated on their written request, bY paying inte

the treasury the full amount of interest due on

such claim up to the date cf reinstatement; pro!

vided, that no right of third persons may have

intervened. In all such eases, the original, obliga-

tions and penaltieS shall thereby become as dind-

‘ing as if no forfeiture’ bad ever occurred.”

‘The entire section of the, above statute may be

found in the Appe adix, No. 1, te this brief with the

portion of the statute involved marked for emphasis.

2. Acts 1941, 47th Ley., p. 351, ch, 191, See, 3:

Acts 1951, 5? Ley., p. 92, ch. 39, Ser. 2.. Art. F826,

formerly Art. 5423,° Vernon's Civil Statutes of the

“State of Texas, Annotated. The above Avts of 1897

found, in No. 1, above was changed and. amended

1941 and 1951, by the State Levistature and among

other base changes, the port lon ef the statute involved

added 5 vears limitation, as follows:

Such right must be exeremed within

five (9) Years from the date of the forfeiture.

» - “yess

oo 2 *

“~

The entire Section of each of the two Acts, the 1941

_ Act and the 1951 Act will be found in the Appendix,

‘No. 2, No. 3, to this brief with the pertinent portions

pertaining to the reinstatement of forfeited land .

-marked for emphasis.

3. Acts, Feb., 1900, See. 8, ch. 11, p. 29 at pp. 33-34.

See Session Acts 1900 First Called Session, p. 29 at -

pp. 33-34. (Entire Section in Appendix No. 5.)

The above Act was the Act in force at the time the

contract was made in 1910; and it involves the duty of

the Attorney General for the State of Texas to clear

titles to land where there is someone claiming that

title, before it can be resold by the General Land Com-

missioner. The portion of the statute invelved is as

follows: |

‘When any of the lands deseribed in this Act,

or any of the other publie lands of.the state held

are owned by any fund, or any land in which the

‘state, or any such funds have an interest, are held,.

occupied or elainred by auy person or association

_ or a corporation, adverse to the state, or to such’

fund, it shall be the duty of the Attorney General

to institute suit therefor,” ete.

* The above Act was passed in 1900 and stayed the

~ same until 1939 and this Act is taken from Mr. Chief

Justice Gaines” quotation of the statute in the case of

Juencke v. Terrell, 98 Tex., 237, S. Ct. Tex. 1904, 82

_ S$. W. 1025, 1026, and is quoted in entirety, in 1914

by. Court of Appeals for 5th Circuit, Southern Pine -

Lumber Company v. Consolidated Lumber Company,

217 F. 719, 724-725. é

The above Act, after the 1939 revision, was ‘and

how reported as Article. 9420, Vernon's Civil Statutes

of the State of Tex xas, Annotated.

4. State of Texas, Senate Bill No. 295, Ch. No. 278,

56th Legisiature, regular session 1955, May 20, 1955,

recorded in the Secretary of State's Office May 2%,

1955. This Act is not in any of the Vernon's Civil

Statutes of the State of Texas. See the Appeiidix

No. 4, ofthis brief for a certified copy of-this Act.

The above *Legislative Act granted to the Cominis- |

sioner of the General Land ¢ Office authority to resell,

settlers vendees land to the State’s own Municipal

Corporation, the City: of El Paso, the defendant.

5. Art. 5409, 5374, 6189 Conflicting title; cancella-

tion. 1883, p. 113, G.L. Vol. 9, p. 1419.. “This statute

merely tells how the defendant can apply to the Gen-

eral Land Office, to refried the amount of money which

they formerly paid the Land Commissioner ino view

of the Sig ad iain title.

0. Arte 5417, 5378, 5404 Purchase money refunded,

1883, p. 113, Gt. Vol. 9, p. 419. This statute merely

provides in -ease the defendant loses this action that

they will be entitled to get their purchase money re-

funded upon the returning of their patents to the Land

Commissioner. 2 |

SECTIONS OF THE CONSTITUTION OF THE

_ UNITED STATES, INVOLVED. .

Art. 1, Sec: 10 of the Conistitution of the United

States. Portion involved 1s as follows:

: a

“7 * )6* ~6No state shall. * * * pass any

law impairing the obligation of con-

at ee

STATEMENT OF CASE.

The controversy in this case is that hoth plaintiff

and defendant are claiming the same lands located in

Kl Paso County, Texas. Both claim title from the .

General Land Commissioner fer the State. Plaintiff’s

prior title depends upon whether he, as a matter of

law, reinstated his forfeited lands in July 1952. If

he did, defendant s oe patents are “ no avail.

I. The Contracts and Awards of Settler’s Vendee Made in

1910 Are Sources of Plaintiff’s Titles.

January 30, 1910 settlers, W. H. Glenn and John 1.

Kilpatrick, made application to the Land Commis-

sioner of the State of ngs **For Land Addition to

Home Tract’. On April 30, 1910 the awards were

made to them by the Land ee R. AG MA 7S

The defeudant in his Response to plaintiff's Re-

quest for Admission, admitted the genuineness of these |

certified official records in the General Land Office. & 24

a ~~ --- ; ————_—-—--—

II. The Contract Includes Chapter 129, Act 1897.

Both contracts' made with the state provided in the

first two lines:

“*T hereby apply to purchase under the provi-

sions of Chapter 47, Act-of 1895, and Chapter 129,

Act of May 19, 1897, and the Acts approved |

‘April 19,1901, April 15, 1905, and May 16, 1907,

the following he Pag ls asi (Emphasis added.)

When the state made the awards? on April 30, 1910, ,

the Aci of 1897, Chapter 129 became part of ‘these con-

tract8s. The award is attached te the’ application-

contract, all three are in one official instrument. .

Three years ‘later both settlers, Glenn atid Kil-

patrick were issued three years Occupational Certifi-

cates? by Land Commissioner, showing that they had

lived on the land and improved the land for over the

three. year period. :

- Throughout the following years the interest was’

paid on the contracts and:the land by deeds were taken

over by heirs and the subsequent vendees. Records of

‘same are in the Land Office and County Clerk's Office,

El Paseo County, Texas. Plaintiffs’ Exhibits Nos. 1

to 338A. R. dz iay oe aes

On July..21, 1947 the lands were forfeited to the

State of Texas for non-payment of interest. R. G3 /¢ |

For the purposes of this brief the General Land

Office Commissioner and the General Land Office may

1, Plaintiffs’ Exhibits Nos. 1,16. (Application, Contract and. Award

all in one instrament and Award signed by Land Commissioner.) R. “/ ¢ ef

3Plaintiffs’ Exhibits Nos. 2,17. R' WG, JS GF ‘. G?-cS$

be referred to as the Land Commissioner and the Land >

Office.

The Land Commissioner had never required deeds

to be filed in his office,’ when the heirs or the vendees —

had forfeited land reinstated in his office, however, he

did have a form No, G142-444-5M which he sent to

those claiming to be the owners who wished to reinstate

the forfeited land. This form ‘among other things

provided: |

1. Sworn statement by the owner or his legal -

representatives state that (blank, name to be filled

in) was ‘tthe owner of the following deseribed .

land.” x

.2. ‘That the above land has been forfeited

for the non-payment of interest and affiant hereby

tenders all delinquent interest and requests that

this tract be reinstated.’

‘The Land Commissioner's requirements were only

as to who elaimed to own the land and pay all the back

interest to have it reinstated. He required no other

proof of ownership; provided no rights of third parties

had intervened insofar as his office was concerned.

‘On July 23, 1952 the Commissioner rece "ed the

above forms filled in, claiming ownership, of the in-

volved land and tendering all interest due, from this

plaintiff.2 ° The Land Commissioner replied by his

letter of July 24, 1952 acknowledging the receipt-of

these claims to these lands and checks for the interest

a a ee ee ag -: -

'Plaintiffs’ Exhibits Nos. 33, 854A. letter of Acting Commissioner

\ er ce, September 6,-1952, to the plaintif. Defendant has adrnitied the

ineness of this iciter. R 423. 245

“ >Piaintifts’ Exhibits Nos. 32B, 32C, 32D, 2E. R 12/21

also acknowledged. the telephone conversation between

his office and. the plaintiff about reinstatement, on

J uly 21, 1952,

III. The Land Commissioner’s Letter Acknowledges -Re-

quest For Reinstatement of the Forfeited Lands and

Payments For Same But Refused It, Based on the

Wrong Act of 1961.

The Land Commissioner said:

“* * ** the forfeiting owner. his heirs or

assigns, must exercise such right within five (5)

years from the date of the forfeiture.”’

A certified copy of'the letter’ which is on-file.in thie

Land Commissioner’s Office, and is now and has been

ever since July 24, 1952 the date written and is part of

the official record of the Land Commissioner's Office,

which is as follows:

os July 24, 1952

Mr. Greenberry Simmons

Western Lodge

Box 647

Van Horn, Texas

Dear Mr. Simmons:

; This is in reply to your telephone conversation

with Mr. Leggott on July 21, 1952 in regard to the

reinstatement of Section 235, L. E. Mundy Survey,

and the N 2 of Section 240, N. D. Mundy Survey,

both in El Paso County, Texas.

a -_--—— r - ee — —

‘4

Plaintiffs’ Exhibits No. 32, (No. ‘3ZA). Certification on all Plain.,

tiffs’ certified copies, fulfill authentication under Rules 44, (43), F.R.C.P.

(also see, Texas Statute, Arts. 9262, 5265). 2, pyc cyt y

“10

With reference to the reinstatement of for-

feited accounts as set out under the provisions of

- Article 5326. Revised Civil Statutes, in order to

r@ustate a forfeited account, the forfeiting owner,

‘his‘heirs or assigns, must exercise such right within

five years from the date of forfeiture. To exer-

cise such rights the application to reinstate and

also payment of all interest and penalty must be

- received in the five year period.

In considering this matter, our attorneys have

decided to reject the applications to reinstate the

above described lands and the applications were

not received until July 23. Due to this fact, vour

+ applications are being’ returned ‘together with your

two payments received on July 23.

I am also returning your.application to rein-

state Section 24, Block 70, Township 1, in Hud- .

speth Coufity together with your check in the

amount of $1,158.11 and a signed check for blank ——

amount.

an yours, |

Bascom GILes, Commissioner

of the General Land Office’

CRL:jw: :

Enes.” :

Certified Copies of above letter have been received

from Mr. Jerry Sadler, the present General Land Com-

missioner for the State ef Texas, one dated October

18, 1961, the other dated July 26, 1961. The certifiea-

tions are as follows:

~ GENERAL Lanp OFrick, Austin TEXAS

~ October 18, 1961.

I, JERRY SapLer, Commissioner of the Genera!

Land Office af the State of Texas, do hereby cer-

tify that on the reverse side hereof is a true and

correct copy of the original of this instrument now

on file in this office’ together with all endorsements

thereon and further certify that I am the officer

who has the custody of the filed original official

records. from which these true Certified Copies

were made. : |

- I~ Testimony W HFREOF, J, hereunto set my

hand and affix the seal of said offic ‘e the day and

date first above written.

- ) JERRY SADLER,

Commissioner of the General

(Seal) . Land Office.

“4

GENERAL LAND OFFICE, AUSTIN, TEXAS Jul 26 1961

I, Jerry SADLER, Commissioner of the General

Land Office of the State of Texas, do hereby cer-

tify that on the reverse hereof is-a true and cor-

rect copy of the original of this instrument ‘now

on file in this office ne with all endorsements

‘thereon.

In TesTIMONY ‘Ween, I, hereunto’ set my

hand and affix the seal of said. office the day and

date first above written.

(s) JERRY SApLer,

| Commissioner of the General

(Seal) — Laud Office.

1.2Emphasis added.

om,

These Certifications taken together with Judge Ben

H. Rice, Jr.'s Certificate, all filed in this case, are’suf-

ficient to authenticate this letter as an official record of

the General Land Office under Rule 44 (43) F.R.C.P.&. 39 1)

The defendant has admitted the genuineness of this |

letter.and also the original of it, in its Response to the

Plaintiff's Request For Admission. R, Be - 2

IV. Act of 1897. Applies and Not the Subsequent

Amended Act of 1951. ;

The Legislative det of 1897, ch. 129 ~~ for

the reinstatement of forfeited land, at the time these

contracts were made in 1910, had no five (5) year time

limitation or any other time limitation, to have for-

' feited land reinstated, according to Mr. Justice Green-

wood of the Supreme Court of Texas which in 1930

said as follows: ,

“Since 1897, our Statutes have provided:

‘‘In any ease where lands have been forfeited

‘to the state for non-payment.of interest the pur-

chaser, or their vendees, may have their claims

reinstated on their written request. by paying into

the treasury the full amount of interest due on

said claim up to the date of reinstatement, pro-

vided that no rights of third persons’ may have

intervened. Acts 1897, ¢. 129, p. 185; 10 Gammel's

Laws of Texas, p. 1239; Art. 5326, 15 Vernon's

Annotated Revised Civil Statutes 1925."") Cruzan

v. A "alker} 119 T. 189, 26S. W. 2d 908, 8S. Ct. Tex.,

* 1930. (Emphasis added.)

The above portion of the statute was made part of

the contract and has the same citations. .icts 1897,

c. 129 which we have stated above is found in the first

two lines of the contract. It is also found in a second, rH.

place, called **Obligation”’ part of the contract. R. o 7.

The above Act 1897, ch. 129 was amended by’ re. ai

Texas Legislature in 1941 and 1951 Acts. Among other

~ basic changes both the 1941 and 1951 Amended Acts

provided as follows:

“Such right must be exercised within five. (9)

years from the date of the forfeiture.”

The Jand involved was forfeited to the State on

July 21, 1947- for non-payment of interest; the forfeit-

ing owner being D. H. Heinemann, Estate.

This ‘plaintiff recorded his deeds in the County

Clerk’s Office of El Paso County, Texas, fromi the son

and the widow, the sole heirs of the D. H. Heinemann,

Estate July 14, 1952. Deféndant has admitted the

genuineness of.these deeds. R. 46 21, sO 11

The La nd Office has never been interested in the.

deeds. All it has requésted w as the notice of the claim

as owner and the payment of all the back interest. R, 126 77,

On July 23, 1952 the Land Comumissitmer received |

the written claim of ownership together with all the

back interest, with a request to reinstate forfeited

land for this plaintiff. R “'“ '4!

The Land Commissioner in his letter of July 24,

1952 refused to reinstate the land. Reason for his re-

fusal was not in the statute in 1910 at the time of

making the contract. The Land Commissioner was

applying the five (5) year limitation put in the

amended Acts of 1941 He which was put in af

the contract was made. 1G, 11%

After the Land Commissioner’s second letter of

September 6, 1952, with reference to the D. H. Heine-

mann, Estate lands,’ the plaintiff received no further

notice from the Land’ Office. The defendant’s answer

stated that the Land Commissioner granted patents

to the defendant January 26, 1956.

This plaintiff for the first time on de une 1, 1961

found out that the defendant had received these

patents under a special Legislative Act passed in 1955,

which is not published in any of the Vernon's, Revised

Civil Statutes of the State of Texas. It is filed in the

Secretary of the State’s Office, Senate Bill No. 295, ch.

No. 278, 56th Legislature, Regular Session, 1955,

signed by the-Governor-on May 20, 1955 and filed for

‘record in the Seeretary of State’s Office on May 23,

1955.?

1Plaintiff's’ Exhibits Nos. 23, 33A. The defendant has admitte« the

genuineness of this letter. R. 123 say

“See Appendix No. 4 to this brief for a Certified Copy of this- Act.

—

V.. Settler- Vendees’ Rights to Reinstate Their Forfeited

Lands Is a Vested Right According to the Supreme

Court of Texas. : ))

The Sune Court of Texas for ovér half a cen-

tury has many times down to the present time sheld

that the settler-vendees’ right to reinstate their for-

feited lands, is a vested right. which no subsequent

statute or vAct of the Land Commissioner can take away

from him. Authorities will be shown later in this

brief (Brief p. 16f, 30, 33).

This case is thus a controversy between the settler’ .

vendee with their contracts and awards for lands made «|

in 1910 from the General Land Commissioner of Texas.

_ which specifically state in said contract that the follow-

ing Acts are part of the contract itself; ch. 129, Acts

. May 19, 1897, and others. Whereas the defendant is

claiming its right under awards of 1955 and patents of

1956 for the resale of the same lands. .

SUMMARY OF POINTS IN ARGUMENT

FIRST POINT. There Is No Genuine.Issue as to Any.

Material Fact and the Plaintiff Is Entitled to a Judgment

as a Matter of Law Under His Motion for Summary Judg-

ment. F.R.C.P. Rule 56.'

SECOND PQINT. ‘Plaintiff Substantially Complied

With the Requirements of the State Statute Specified in

the Contract of 1910 For the Reinstatement of the Forfeited

Land.

THIRD POINT. If Plaintiff Did Legally Reinstate His

Lands Or If He Did Not Do So, It Was the Duty of the

Attorney General of the State of Texas to Adjudicate. and.

Clear the. Plaintiff’s Claims on Record in the Land Office,

Including the Contract of 1910, to the Title-to These Lands

Before They Could. Be — Again For Resale by the

Commissioner. °

FOURTH POINT. If the Land Commissioner and His

Attorneys Were Correct in Refusing Plaintiff’s Reinstate-

ment, Because the Legislative Changes in the Acts of. 1941,

1951, 1955 Then These Legislative Acts All Taken Together

Impair the Obligation of Contract, Insofar as They Attempt

to Apply to Contracts Made Before Their Enactment, and

Are Unconstitutional. 3

1For quphoritiog vuliod upon for aa ouliet herein, See index PP. i-v.

16a

THE SPECIFICATION OF ERRORS.

I.. The District Court erred in denying Plaintiff’ i

Motion for Summary Judgment.

I-A. The Court erred in sustaining the Defend-

ant’s Motion for Summary Judgment and in dismiss-. - ’

ing the suit.

_TI.. _.The Court erred in failing to recognize that

Plaintiff, as a matter of law, Teinstated his forfeited

lands in July, 1952.

TIT. The Court erred in failing to iiclenens that

the Land Comnuissioner (for the State of Texas) did

not havy the authority to place these lands on the.

market for resale and to issue the patents to the Defend-

ant, until after the Attorney General of the State had

adjudicated the ownership claims of this Plaintiff to

these. previously sold lands, actively covering a 42

year period. es. |

"IV. The Court erred in failing to recognize, that

if the Land Commissioner and his attorneys were cor-

rect in refusing Plaintiff's reinstatement because of

‘Legislative changes in the Acts of 1941, 1951 and 1953,

then these Legislative Acts taken together, impair the

‘ obligation of contract, insofar as they attempt to ap-

ply to the vested rights given under the reinstatement

of forfeited land statute, as construed by the: Texas |

_ Courts for over a half century.

16b

BRIEF OF THE ARGUMENT.

First . Point.

There is no genuine issue of any material fact, as

the Defendant has admitted all facts claimed by the

Plaintiff.

This ieaves only questions of law ron be decided.

Did the Distriet Judge err in his legal conclusions in

dismissing this suit?

This is an action there hoth parties are clafning

title to two pareels of land totaling 620.65 acres, lo--

cated in El Paso County, Texas.

Plaintiif’s Complaint fulfills the Texas Statutory

requirement of Trespass to Try Title.

Plaintiff clainis his prior right by reason of the

deeds whieh he obtained from the D. G. Heinemann

state and ‘recorded on July 14, 1952 CR. 104, 110).

By reason of these deeds the Plaintiff obtained what-

ever right the Heinemann Estate and their predecessors

in titles had in’ these contracts, which settlers Glem

and Kilpatrick obtained when’ they purchased the

land from the State under the purehasing land eon-..

tracts as part of their home sites on January 29,

1910 CR. 43-44, 120-121). |

The big question in this suit is not whether the

lands were forfeited, but whether the already: forfeited

lands were reinstated, as a matter of law. If-so, then

‘the original st tute still provides:

‘Tn all cases the driginal obligations and penal- |

ties shall thereby become as binding as. if no for-

feiture had ever oecurred.” (B.55-56 59) *

16¢ -

‘The already substantially performed land purchase~—-

contracts, which had been in the process of being per-

formed by many predecessors in title, between the

_ dates of 1910 and 1952, covered 42 years. The sub-

stantial performance was as follows: 1/40 of the prin-

cipal was paid in 1910 by the settlers Glenn and Kil-

patrick: Since then for over 33 1/3 years their heirs.

and successors Rave paid n more interest, at 3 per cent

,per annum, to the State, ‘thar the total contracted

"purchase price of $1.50 per acre (R. 43, 67). For

years, penal interest of 5 per cent on all unpaid de-

linquent interest was assessed (R. 61, 99). During

1910 and 1913 the settlers spent $2,850.00 in improve-

ments on their home site lands, which included these

lands (R. 46). They likewise had to live three years

ou the land, as their home, in order to obtain it. This

was later repealed. These Certificates of Three Year

Residence were filed in the Land Office and also re-

corded in the County Clerk’s Office of El] Paso County.

Texas, in 1913 (R. 46, 48, 69).

In 1947 this land was forfeited for the nonpayment

‘of interest. In July, 1952, this Plaintiff, based’ upon

. his recorded deeds, filed his.applications, claiming the

ownership under these land purchase contracts of 1910

and asked for reinstatement of the forfeited lands.

The checks for ali back interest to date were - also

tendered to the Land Commissioner (R. 120-123).

‘Plaintiff’s interest payments tendered, amounted.

to over one-half of the value of the total purchase price

of $1.50 per acre and this was in addition to the in-

terest payments, already made by his predecessors in

16d —

» 2 tee

title, of over the total: contracted purchase price of

$1.50 per acre (R. 120, 121).

The three important instruments for the Court to

consider are listed above as the contract between the

State and the settlers in 1910, and second, the apphiea-

tion of the Plaintiff to reinstate the land, and third,

the checks which were tendered for the payment of

all back interest. Each parcel of land has a contract,

application and check. As the two contracts, applica-

tions and checks are the same, it will only be necessary

to look at one of each: (R. 43- 44, 67-68, 120, 121).

In July, 1952, no third party rights had inter-

_vened to interfere with the Plaintiff's title. The above

procedure was the ordinary way these ownerships have

heen handled throughout the years (R. 36, 38, 43-125).

These recorded deeds had always given the vendees

the right to possessidty of the land involved and they.

were considered the owners, Tt was this contractual

right to the possession and ownership. of the land

which was obtained by Plaintiff, and when he recorded

hts deeds on July 14. 1952, this also became construe-

tive notice to the subsequent purchaser, the Defend-

mnt, of such possession and qwnership. |The Plain-

tiff with the right to possession and, ownership filed

his sworn statement of such ownership and applica-

tion for reinstatement of the land and tendered all

back intevent (R. 120, 121). ae ¥

This Plaintiff dil “verything any reasonable man

eould do, and was legally required to do, to reinstate

his for feited land purchase contracts made in "1910.

There was no further legal duty on this Plaintiff to do

“9d GT, 62OL BBO (1930),

16e

anything further. Now he has brought this suit to get

the subsequent purchaser with notice off his land.

Second Point.

Plaintiff and his predecessor in title, subseauently

complied with all-the requirements of the State Stat-.

utes, specified in the lend purchase installment con-

tracts of 1910, for the reinstatement of these for-

feited lands -(R. 120-122). It) is * well settled in

Texas that thé reinstatement of forfeited land statute

_Was not passed for the benefit of the State, but for

the benefit of the settlers who purchased the Jand

installment contracts and their successors, Galf Pro-

duction Co. v. State, OS Tex, 237, 234 8. W. 124, 127-

18, 131-b4s Craucan ve Walker, W9 “Pex. 189, 26

S. W. 2d 908-909, S. Ct: Tex... 1930: Ande rson, ef al,

ce 2 Neighbors, 94 Vex, 23, 59 SW. 543, O44. 4, S.

{'t. Tex., 1900; Frees ve Walker, 120 Tex. 20) 26 8. W.

. It is well settled in Texas that it is not necessary

to have the Land Commissioner for State of ‘Texas,

approve ‘the request: for reinstatement of forfeited

lands. AIL that is required is to make the request

and tender all the back interest, provided that no”

rights of third persons may have intervened. Daris

v. Yates, 603 C. A. 6. 133 S. W.O281, 284-286. Writ of

Error Denied (1911). All. these requirements were

admitted to have heen complied with. Over 30 years

after substantial performance of these contracts. the

State Legislature in 1941 and 1951 added amendments

in the same paragraph, to the reinstatement “of for-

16f

feited lands Statute (B. 59), provided for & five year

limitationg statute, and leaving unchanged the re-

quirement, “Peovided that no rights of. third per-

sons may have intervened.”

Tt is well settled in Texas for over half a century

that the right, to the reinstatement of forfeited Jands -

under the Statute has been a-vested right, which could ,

not be taken away by Legislative enactment of the

State, where no third party had intervened at that

time. Gulf Production Co. v. State, 98 Tex. 237, 231

S. W. 124, 127-128, 131-134; Cruzan v. Walker,.119 Tex.

189, 26 S. W.-2d 908-909, S. Ct. Tex., 1930; Anderson,

et al. V. Netghbors, 94 Tex. 236, 59 S. W. 543,544,

546, S. Ct. Tex., 1900; Davis V. Yates, 63 C. A. 6, 133

S. W. 281, 284-286, Writ of Error Denied (1911).

In July, 1952 at the time Plaintiff requested re-

instatement, the Land Commissioner had na standing

to deny reinstatement because, there were no third

party intervening rights present; neither did this

Defendant have any standing to have Plainti’s re-

- quest denied because it had no* intervening rights at

that date, and later it beeame a subsequent purchaser

with constructive notice. |

Third Point.

The Land Commissioner did not have authority

to place these lands on the market for resale and

: issue the patents to the Defendant until after the At-

torney General of the State had adjudicated the claims

of the Plaintiff to these lands. Southern Pine Lumber

Co. v. Consolidated Louisiana Co., 217 F. 719, 723-

‘16g

, ey C.A. 5, 1914; Juencke v. Terrell, 98 Tex. 237, 82

. W. 1025, 1026, S. Ct. 1904.

The Texas State Constitution, Art. 14, Section.

2, provides that the State shall issue patents only upon

vacant and unappropriated public domain, ‘‘and not

upon land titled or equitably owned under the’ color

of title from the sovereignty of the State, evidence of

the appropriation of which is on the County Records

or in the General Land Office.’’ The Plaintiff’s claims

of ownership were both ‘‘on the County Records”’ (R.

104, 110) and ‘‘in the General Land Office’’ (R. 120, 121,

_ 116-119. Also see, for record covering over the 45

‘ year period in both offices R. 43-125).

_ ‘The Affidavits claiming ownership were included

in the applications for reinstatement of the forfeited

lands (R. 120, 121) and acknow yledged in the letter from

the Land Commissioner, dated July 24, 1952 (R. sé

119). ;

Pourth Point.

’ If the Land Commissioner and his attorneys were

correct in refusing Plaintiff’s reinstatement because

' of Legislative changes in the Acts of 1941, 1951, and

1955, then the se Legislative Acts taken together i impair

the obligation of contract insofar as they attempt ..o

apply to these contri cts made before their enactment,

and are therefore unconstitutional. Drumuwrigat, et al.,

v. Teras Sugarland Co., et al., 16 F. 2d 657, 658, C. A.

5, 1927, Cert. denied, 274 U. S. 749; Frank v. The State

Bank and Trust Co., Tex. Com. App. 1924 (Entered

as judgment of Supreme Court, Tex.), 263 S. W. 255,

256, 258.

Cae

16h

It is well settled in Texas that the State cannot itself

refuse reinstatement of forfeited lands uniess there are

third party rights, and this right is a vested right of

the purchaser and its vendees and their successors in |

title. Gulf Production Co. v. State, 98 Tex. 237, 231

-S. W. 181-132, 134; Hooks v. Kirby, 58 C. A. 335, 124

S. W. 156, Civ. App. 'Tex., Writ of Error Denied. This

principle was well stated as follows: ‘** * * this

right became vested and cannot. be impaired by sub-

sequent legislation.”’ Cruzan v. Walker, 119 Tex. 189

26 S. W. 2d 908, 909, S. Ct. Tex., 1930; A nderson, et al.

v.aNeighbors, 94 Tex. 236, 59 S. W. 543, 544, 545, S. Ch.

Tex. 1900. ; ° |

Purchasers contracts and awards for public lands

by the State, as part of their home sites, which were

in the proces of execution and interest paid on them

_ for over’ 30 vears and substantially perfarmed, were

too far executed to permit subsequent legislation, giv-

ing the State these valuable lands by adding addi-

tional limitations not in the statutes and conflicting

with vested rights, which were, part of these contracts |

‘and awards at the time they were gnade in 1910. Pen-

noyer Vv. McConnaughty, 140 U.S. 1, 9,10, 24-25.

The history of the Legislative Act of 1897, (B. 55,

56) being the Act under which the 1910 contracts were

made, is @learly shown in Freels v. Walker, 120 Tex.

291, 26 S. W. 2d 627, 629, 630 (1930), Com. of -App.,

Rehearing denied. The State cannot modify vested

rights, except by mutual consent of any provision of a

- pre-existing contract into which it may have entered.

New Jersey ¥. Wilson; 7 Cranch 164, 167; Sovereign

i) ; Y

nS 16i

Camp v. Wilentz, 23 F. Supp. 23, appeal dis., 306 U.S

~ 573, D.CN.S., 19388; Columbia Railroad Company’ V. ,

South Carolina, 261 U. S. 236, 248, 251 (1922). The

State does not have power to pass amendments, under

the preteuse of changing the remedy, which undertakes

to compel the party to. accept something different in

place of the vested dp for which he contracted.

McCracken v. Hayward, 2 Wow. 608,

On July 23,:1952, after these vested rights of the

_ predecessors in title had been exercised by this Plain-

tiff, these previously forfeited lands became reinstated,

as a matter of law, no matter what the Land Commis-

sioner and the State of Texas or anyone else did after

that. No matter if the five-year limitation statute

had been added by amendment or any other pro: ision,

it could not prev ail over what the Texas Courts have,

for over half a century, beld to -be present existing

vested rights.

“The equitable rights of this Plaintiff here, under

these 1910 contracts, are the same as if his predecessors

‘in title, settlers Glenn and Kilpatrick were standing

before this Court erying for relief in saving their

homes built on these lands over 42 years ago. Many

other heirs and vendees of settlers have these unma-

tured: land purchasing: contracts still existing.

- We respectfully sybmit, tltat the District Court

Judgment for the Defendant and the sustaining of the

Defendant’s Motion for Summary Judgment, should

be reversed and the Plaintiff's Motion for Summary

Judgment should be sustained, and the Judgment

should be for the Plaintiff. | 7 ae

*~ | .

“tgs .

17°

ARGUMENT.

FIRST POINT.

There Is No Genuine Issue as to Any Material Fact and

the Plaintiff Is Entijled to a Judgment as a Matter of

Law Under His Motion For ee Judgment. F. R.C.P.

Rule 56.

The request for Admissions’ which composed of the -

- plaintiff's Exhibits No. 1-33. show that all this is docu.

mentary and official records. These certified copies of

official records come from the General Land Office for

the State of Texas or the County Clerk’ s Office, FE] Paso

County, Texas. All are certified copies of official ree-

ords or adequately referred te in certified copies. K.45-/ 29

Defendant in its Response to plaintiff's Request

for Admission, ‘‘Admits the genuineness of all docn-

ments and instruments marked Exhibits 1. through

33A,"" except, Exhibits 32B to 32H, both inclusive. R. 2¢

The seven above Exhibits, not admitted and ex-

cepted by the defendant, are the 3 applications of the

‘plaintiff to reinstate forfeited lands and the 4 checks.

‘for interest to reinstate’’ such lands.

The lands above are the lands plaintiff obtained

in his recorded deeds of. July 14, 1952 from the D. HL.

Heinemann, Estate. Plaintiff's Exhibit Nos. 28, 30, R. C4.

All seven are acknowledged in the Certified Copy

of the letter of July 24, 1952 from the General Land

(‘ommissioner, when he returned them from his Gen-

eral Land Office on that date. K. 1k, !'%

128 U.S.C.A. Rule 36. F.R:C.P.

. The. defendant has admitted the genuineness of

‘this letter which acknowledged the receipt -of each of

the 7 instruments and returned them enclosed with

the letter. R. Be ;

Each of the 7 instrients oi a number stamped

upon it which was stamped upon it by the General

Land Commissioner's Office at the time it was received

there, which was done because of a law requiring same

to be done. R. 1 al, (21, 7 22

‘ In addition to this number on each, the 3 applica-

tions also has an additional stamp put on them upon

arrival at the General Land Office. The 2 applications

involved are as follows:

“RECEIVED

JUL 23, 1952

GENERAL LAND OFFICE.”

The small numbers stamped upon each applieation -

has the same number stamped in the upper right-hand

corner of the corresponding bank checks. The stamped

number 43325 on the application to reinstate forfeited

lands of N 2 of Survey 240 was also stamped on the

corresponding check for interest of $430.11 due to rein-

state that piece of land.

“. The plaintiff's Exhibit No. 32D, Application to

Reinstate Survey. 235 has the General Land Office

stamp No. 43326 and the corresponding bank check for

$251.02 interst to reinstate Survey 235 has the corre-

sponding No, 43326 stamped on it in the upper ey:

naan corner.

scat Ne

‘These 7 oviginals are in the United States District

Court Clerk’s safe. Also the original letter of July

‘24, 1952; the Land Commissioner sent in returning

them. ;

The Certified Copy of the letter of July 24, 1952

from the General Land Commissioner, of which de-

fendant admits the genuineness, shows-that all these

7 were delivered into the custody of the General Land

Commissioner and the Géneral Land Office. Whether

“he kept them er not they were deemed, ag a matter of

law, to have been filed in the General Land Office. The

Supreme Court of Texas has so ruled in a similar ease.

Snider v. Methvin, 60 Tex. 487, 494, S. Ct: Tex (No

S. W. citation, as it Was before the S.. W. Reporter

started.) ;- Holman v. Chev allier,-J40 Tex. 337, 339,

S. Ct. Tex. (No S. W. Réporter cited.) (

The above Snider case is cited for this authority

in Note 1, under Article 5261, Vernon's Civil Statutes

of the State of Texas, Annotated, Revision of 1925, 7

Articles 5.261, 5202, 5263, 5265, required the General

Land, Office Commissioner te keep and file all papers

pertaining tetand title concerning the state. , .

The title of the lands depends upon whe ther these

forfeited lands were reinstated, as a matter of lav, Pi

1952-with the General Land Office. Plaintiff applied

for such reinstatement and sent all interest due to the

Land Commissioner. .The Land Commissioner replied

by letter that he received them too late to permit rein-

statement under the law.

Plaintiff contends’ that the Land Commissioner,

without authority:of law, used a portion of the statute

’

20 vk

, not in the law at the time the congract was made, but

which was added by Legislative Amendment later.

~The law enforced and set out in the contract itself,.

at the time the contract was made with: the state, had

no time limit in it.

The Legislative ‘amendment’ later provided. addi-

tional basie changes, including. the right to reinstate,

which must be exercised within. five (5) years from

date of for feiture. .

In the Guif Production C émpany v. State, 98 Tex.

37, 231 8. W. 127, Civ. App. 1921, error refused,

supra, it is said at p. 126 S, W..as follows:

‘And there was no conflict in the ane evi-

dive ¢, Which was explanatory of, and forfeited the

effect of, the documentary evidence, thus in effect

eliminating ; all issues of fact, so that the only ques-

tions arising in the case are questions of law to be

applied to undisputed facts.”

This leaves only questions of law to be decided by

the Court.

SECOND POINT.

Plaintiff Substantially Complied With the Requirements

of the State Statute Specified in the Contracts of 1910 For

the Reinstatement of the Forfeited Lands.”

The statute for reinstatement of: forfeited lands

for non-payment of interest has been the same in Texas

from 1910.to 1941. It had no five (5) year limitation

placed on the forfeited land owner, nor did it have any

time limitation period in it. ‘Cruzan v. Walker, supra.

=”

During the 31 year period this portion of the statute

has been clearly defined by the Supreme Court of

Texas and the Court of Civil Appeals of Texa

The original contracts were made with pean

W. H,Glenn and John B. Kilpatrick, on January 29,

1910, plaintiff's Exhibits Nos. 1, 16, in the first two

lines of these contracts it provides in part as follows:

oT hereby apply to purchase under. the pro-

Visions of * * * Ch. 129, Act of May 19, 1897

* * * The following land situated in El Paso

County * FFL RK. G7 OSp Las - ses

When the’ state awarded these lands on April 30,

1910 to the*settlers it made the above Act part of the

contract. RAY, CS

This is the Act plaintiff had to comply with when

he became vendee of the D. H. Heinemann, Fstate

— which was the last forfeited owner on the Land Office

record. K. 63:10) :

What did the statute require? it required :

1. That no third party’ s rights had intervened

before the application to reinstate was received.

2. That all back interést be pa‘d to the date

of reinstatement. 2% 5 &

These two requirements were ‘fulfilled. To thise

date these two have not been questioned.

It had nothing in it err any time limit what-

soever. | |

The plaintiff's Exhibit Nos. 32, 32A, 32B, 32, 32D,

32E, show that the above was substantially complied.

with. These Exhibits are the applications made by

plaintiff and checks sent for interest.and the letter

from the Commissioner, dated July 24, 1952, denying

reinstatement of the forfeited lands. K. !1&-/2\

The Supreme Court of Texas has repeatedly stated

that the above substantially complies with this Act.

- Such authorities will be stated subsequently. |

What right did the forfeited owner have between

the time of forfeiture, July 21, 1947 and to the date

of reinstatement,-duly 23, 1952? When plaintiff com-

plied with the two above requirements this forfeited

land, as a mater of law, became reinstated. B. 5Y

Nothing. could the Land Commissioner do or not do,

could or can, keep this land from being reinstated on

July 23, 1952. B. 54

During the period between J = 21, 1947 and July

23, 1952 while it was forfeited, the forfeited owner had

a vested right to reinstate under ch. 129, Act of May

19, 1897. B As

The Supreme Court of Texas has weatili held

that. dffring this period this was a vested right which

could not be defeated except by some third party right

intervening, before the reinstatement was complied

with. This did not happen. Likewise the state could

not be the third party referred to in the statute. The

state was the first party and the vendee was the second

party, so the state could not be the third party. ;

Furthermore the Court has held that this forfeiture

and reinstatement statute should be liberally construed

in favor of. the parties for whom it was passed to help,

namely the purchasers, heirs and vendees of the land

° @

contracts and was not passed for the benefit of the

State. | |

The statute referred to in the contract of 1910 as

Ch. 129, Act of Ma y 19, 1897 covers the reinstatement

of forfeited lands at page 185. It is the same Act

‘ which was in force on the same subject up until the

amendment of 1941.

The Supreme Court of Texas, in the case of Cruzan ~

v. Watker, 119 Tex. 189, S. Ct. 1930, 26 S. W. 2d 908,

909, said that the same statute on reinstatement of for-

-feited lands, had been in existence since 1897, as

follows:

‘Since 1897, our statutes have provided: ‘In

_ any case where lands have been forfeited to the

state for the non-payment of interest, the pur-

chasers, or their vendees, may have their claims re- _

instated on their written request, by paying into

the treasury the full amount of interest due on”

such claim up to the date of reinstatement, pro-

vided that no right of third persons may have in-

tervened.’ Acts 1897 ¢. 129, p. 185; 10 Gammel's

Laws of Texas, p. 1239; Article 5326, 15 Vernon's

Annotated Revised Civil Statutes .1925.”"’ (Em-

phasis added.) |

It wiil be noted that this opinion was in 1930 and

this Act was still the same Act which was in the con-

tract of 1910 and it has the same citation namely Acts

1897 ch. 129, p. 185. However, it will be noted that

the additional citation was added because different

- publishing companies came on during that period of _

time and published under different Section numbers,

but the statute remained the same as set out by the

Judge and has been the same since 1897 to 1930, and.

remained the same for several vears after this opinion

up to 1941 when the amendment was made:

‘The Cont went on to say on p. 909:

‘Before the statute was four (4) years old,

the Supreme Court announced that the. history

and purpose of its enactment required that it be

interpreted with the utmost liberality in favor of

the’former owner seeking reinstatement of his

purchase. In so construing the statute, the Court |

gclared that in order for an intervening right to

defeat reinstatement it must be a vested right en-

forceable in the Court proceedings. Anderson Vv.

Neighbors, 94 Texas 240-242, 59 S. W. 543." * * *

- ‘We'think rather, that the Legislature had in

mind such right of third parties as constitute a

present existing bar to reinstatement—an existing,

vested right enforceable at the time by the party

owning such right. This provision was not in-

serted for the benefit of the State of Texas, but for

the benefit of third parties in whose favor such

intervening rights existed; and, when there are no

‘third parties who can lawfully complain of the

reinstatement, the state cannot be heard to do so.’

(Emphasis added.)

Before We leave the quotation of this case we wish

to quote it ‘further pertaining to another case which

we expect to quote following this case, which is one

of the leading cases on this subject in the Texas Courts.

However, it is a Civil Appeals case but the Supreme

Court in this case said pert arnitg to the leading case

as follows: , |

95 : ;

‘The very question raised by realtor was pre-

sented to the Supreme Court, under briefs of

imminent counsel, on application fér writ of error

in the case of Gulf Production Company v. State

(Tex. Civ. App.), 231 8. W. 124, 132. In refusing

the application on March 1, 1922 (25 Texas and

S. W. Digest, p. 28446) the Court necessarily ap-

proved the following portion of the opinion of the

Court of Appeals. * * *”

In Gulf Production Company, et al. v. State, 98

Tex. 237, 239, Civ. App. 1921, error refused, 231 S. W.

124, 131-132, 135, the facts in this case are as follows:

The State of Texas brought this suit to cancel the sale

of public land. A man by the name of Kidd had the

County Clerk make up his application to purchase and

the Clerk sent the application and money in to the Gen-

éral Land Office for Kidd. The Clerk put the bid in .

the land at $1.50 per acre thinking that it was agricul-

tural land only. Later it was classified as mineral and

agricultural, land. On this there is much proof, how-

ever after taking quite a lot of proof the Court nar-

rowed it down to documentary evidence very similar

to the kind which is in the case at bar.

‘Kidd forfeited the land for non-payment of in-

terest, then gave a quit glaim deed for his interest in

the purchase contract without settlement. There were

intervening parties trying to obtaih the land on appli-

cation and did obtain it on application. Then‘ the

latter party abandoned the land granted to him on his

application because he did not stay on the land the re-

quired three year period ; after all of this happened the

grantee from Kidd had the land reinstated.

Question: Did the grantee of Kidd have the right |

to reinstate the land?» It had become valuable for oil

production, estimated value at $8,000,000., 160 acres

was involved. |

The Lover Court ‘held that the vendee of Kidd

could not reinstate under these conditions but when ~

the case came on to the Court of Civil Appeals it re-

versed the Lower Court and remanded the case, ruling »

on several points of law including quit claims, rein-—

statement of forfeited land, forfeiture rights and the

lack of the power of the General Land Commissioner

to use any discretion in applying the statute to rein-

state Where no third parties had intervened. 7

The Court said, **We hold, that the sale to Kidd

of the land in controversy was regularly made and is

valid * * *.° It said at p. 131, 8. Wt:

“Tt was right and just that those who had

settled upon and improved the State's, lands in

response to invitation of the State,.and who had

endured the hardship incident to such settlement,

and the privations instant toe sich improvement,

should be given an opportunity to retrieve their

lands when forfeited by reason of' temporary mis-

fortune and the consequent inability to meet their

payments in strict comphance with their obliga-

tion. Forfeitures by statute or contract are not

favored. Ther must be viewed with the cold and

literal scrutiny, that the injury wrought may ‘be

held to a minimum. On. the othér hand statutes

or contracts designed to relieve from the rigors of

forfeitry are looked upon warmly and eonstrued

liberailv, so-as to afford the maximum relief. And

this reciprocal rule -anplics as well to the creat

27 ’

State of Texas as to the humblest citizen. So, the

provisions of the statute for the forfeiture of sales,

and for the reinstatement of such sales,-should be

tested by the rule in question.”’

‘ ? ao

Then the Court goes on to quote the same statute

as was quoted later in the Cruzan v. Walker, supra,

except it adds the last sentencg which is also. part of

the statute, which is, as follows:

‘Tn all such cases, the original obligations and

penalties shall thereby become as binding as if no

forfeiture had ever oecurred.”’

Then the Court. goes ae .

“Tt will be obse7™d that there are two condi-

tions upon which reinstatement may be had:

First, the payment of the full amount of interest

due. by the purchaser up to the date of reinstate-

ment; and, second, the absence ‘of intervening

rights of third persons. Appelices seek to inject

here a third condition, to wit, that the classifica-

tion of the land has not been change ‘d since the

original purchase was made.

ce * Tf hthe Legislature had intende d to

. provide that the reinstatement must be subject .te

or defeated by an arbitrary change by the Land

Commissioner of the classification and appraisc-

ment of the land, it should and would have atfirmea-

tively and definfteiv-said soin terms. The provi-

sions for reinstatement were in effeet when Kidd

purchased the land, and were embraced in the

contract between the state and Kidd when the

latter purchased, and neither Kidd nor the state

could thereafter arbitrarily and without the e¢on-

sent of the other write into the contract any pro-

visions or condition, varying, restricting, or en-

larging the terms thereof. If the state could hy

act of its Legislature ingraft this onerous condi-

tion onto the contract, then by the same license it

could by like means increase the original purchase

price of the land, or the rate of interest or terms

of payment thereon. The payment of the back

interest was the only condition so far as the state

was concerned, required of Kidd in’ procuring the

reinstatement of his purchase, and the subsequent

act of the Cotumissioner in reclassifying and _re-

appraising the land could not serve to create an

- additional condition. Anderson v. Neighbors, 94

Vox. 240, 59 S. W..543; Hooks v. Kirby, 58 Tex.

Civ. App. 335, 124 58. W. 156 (Writ of error

denied); Wing v. Dunn, 60 Tex. Civ.. App. 16;

127 S. W. 1101 (Writ of error demed (Sup) 128

S. W. 108); Jumbo Company v. Bacon, 79 Tex. 5,

14S. W. 840; Bates v. Bratton, 96. Tex. 279, 72 —

S. W. 157; Houston Oil Com pany v. McGrew, 107

Tex. $20, 176 8S. W. 45. In Hooks v. Kirby, supra,

this: prineiple was well stated as follows: ~

‘“* * * this right became vested and cannot

be impaired by subsequent Legislation.”

The Court in the Gulf Producing ease, supra, goes’

on to answer the contention that theeappellee who tried

to inject several other statutes into the issue at this

time and the Court said at p. 132 S. W. as follows:

“The most obvious fallacy in this contention 1s

that. beth the provisions relied on relate exclu-

‘sively to resale of lands. They do not purport,

directly, or indirectly to relate to-the reinstate-

ment of forfeited sales. This is ebviously from

the plain language of these provisions that appel-

lees’ contention approaches the frivolous. The

provision in Art, 5423 is a part of the forfeiture

clause, relating solely to the resale, and is wholly

disconnected from and does not in anv: re “spect

whateyer refer or purport to refer, to the provi-

sions of reinstatement: The forfeiture clause in

Art. 5423 provides for three steps (a) forfeiture,

(hb) revision to the school find. ‘and (¢) resale.

The clause for reinstatement, which is separate

and apart from the forfeiture clause, prescribes

two conditions upon which the reinstatement may

be had, (a) payment of allyback interest, and (1)

absence of intervening rights of third party. There

is‘no condition there that the reinstatement cannot

occur in the face of a reclassificatjon or reappraise-

ment of the land. Morcover, the clause affirmas-

tively provides that ‘in all such cases’ of reinstate-

ment ‘the original obligation and penalty shall

thereby become as | inding asf no forfeiture had.

ever occurred.” ”

The Court goes on t+ explain why the sundry and

various other publie lou. statutes which the appellee

tried to inject into this case decs tot apply to the re-

instatement of forfeited: lands and continues to quote

and ‘say:

“Tt will be seen from cits kouage that ne

stretch of the constraction ean this proviston he

vmade to refer to toe. rerbstatene nyt of forfeited

sale.” " . : |

The Court gees on to sav on . 33 of S. W. as

follows:

“We think. rather, that the Legislature had in

mind such rights of third parties as constrned at

present existing bar to reinstatement--and exist-

ing; vested right. enforceable at the time by the

party owing such right. This provision was not

30 :

inserted for the benefit of the State of Texas, but

for the benefit of third parties in whose favor such

intervening rights existed; and, when there are no

such third parties who can lawfully complain of

the reinstatement, the state cannot be heard to

do so.’ (Emphasis added.)

The Court goes on to say at p, 134 that the right

Kidd had could not be taken away from him as it was

a vested right. |

‘*And that was a vested right which no statute

or act of the Land Commissioner could take away

from him. Moreover, the statute (Art. 5423) ¢.

pressly gives that right to ‘the original purchaser

or their vendees.’ This right may be momentarily

obscured by a shadow, such as the Griffin trans-

action; are entirely obliterated by complete and

permanent resale, but it is there, nevertheless, and

and is written in clear and express language into

the contract between the state and the original

purchaser. It is just as clear and definite and

tangible as is-the right, -giv en in the same contract,

té continue the title in force by paying the interest

on the Ist of November each year.

oe 2 is ee

The right to reinstate the Kidd vale

was a vested right, and could: be defeated only by

failure tou pay the accrued interest on the land, or

“by enforceable intervening rights of third, parties.

No representations of Lewis, whether true or false,

could affeet that right. -He was, or was not en-

titled. to thre reinstatement, and nothing he eould

say would enlarge or lessen the authority of the

Land Commissioner.” >

3esides the Cruzan vy, Walker, supra, quoting ex-

tensively from. the Gulf Production Company v. State,

supra, in above case in 1930, also the case of. F reels v.

Walker in 1930 to be later quoted and State v: Walden

in 1959, later to be quoted, cited with approval the

Gulf Production case.

It will be noted that the re ieuatboanetit of forfeited

land statutes which was passéd in 1897, was Art..4218f

later became Art, 5423 and later in 1925 in the Revised:

Civil Statrites it became Art. 5326 but the wording of

_ the Statute was the same since 1897 to 1941.

It-is held that when the Land Commissioner tries

to set a reinstatement aside, his acts in attempting to

do so are void. The Court held same in: Freels v.

Walker, 120 Tex. 291, 26 S. W. 2d 627 (1930), the

Court said at pp. 629, 630:

** Another salutary rule of iidiniaiiiin is ‘th: it

where a.statute is designed to reheve from the

rigors of forfeiture, it shoyld be most liberally

construed to accomplish,that purpose. Gulf Pro-

duction Company v. State (Tex. Civ. App.), 231 —

oe ee 7 a :

‘The reinstatement of the land in question by

the Commissioner on August 29, 1924 being prior

to the intervening right acquired by the respond-

ent Bowden, was in all things valid, here the Com-

missioner was without authority to set such re-

instatement aside, and his attempt vn Septem- ”

ber 3, 1926, to do so Was void.’

In 1959 the Texas C ivil .4 ppeals- Court quoted with

approval the 1921 ease of Gulf Production Co. v. State,

“su pra, in State v. Walden, Civ. App. Tex. 1959, 325

S. W. 2d 705, 711, the Court at p. 711 said’as follows:

“Tt is our duty to construe these laws so as to

alleviate against the rigors of forfeiture, for the

laws abhors a forfeituré. Board of Insurance

Commissioners of Texas v. Great Southern Life

Tnsuranece Company, 150 Tex. 258, 239 S. W. 2d

802, 809; F reels v. Walker, 120 Tex. 291, 26S. W.

‘2d 627; Oklahoma Tool and Supply Company: v.

Daniels, Fex. Com. App. 290 S. W. 727. And in

Guif Production Co. v. State, Tex. Civ. App., 231

S. W.-124, at p. 131 it is said: ‘Forfeitures by

statute of eontract are uot favored. They must

be viewed with a.cold and literal scrutiny, that the .

injury wrought may be held to a minimum.’ The

fact that the sale of land was made by quit claim

deed, instead of war anty Gee has no significance.

¢ * on

Plaintiff likewise substantially complied with the

Act of 1951 in the reinstatement of forfeited land.

Anderson, cf al. v. Neighbors, 59 S. W. 543, 544, 545,

S. Cf. Tex.. 1900. The last day of ‘he exercising of

the five (5) years was up on July 21, 1952. . The letter

of the Commissioner admits a telephone call by the

plaintiff on that'date about reinstatement. of the lands.

He further acknowledges that he received hin re-

quest to reinstate the forfeited lands fer = doe nts.

Also acknowledges that he was returning the $1,158.11

cheek which was ii addition to the other payment for

more than the amount ¢ due the Land Office. The stamp

PP pT Cry Mt

showed. he received July 19, 1952, two-

on the

days before his claim of the 5-years, was up. (See cree

it seems that a liberal construction of the exercised

requirement was substantially complied with. ,

- 33

In Anderson, et al. v. Neighbors, supra, the Su-

preme Court of Texas said p. 545:

“The language of ‘the law is broad enough to

admit the: construction that the Legislature in-

tended that the Commissioner, upon receiving -

notice of the desire of the purchaser to reinstate

the forfeited contract, should allow to such appli-

‘ant a reasonable time within. which to ascertain

the amount due and to make payment * * *.”

At p. 543: eg. :

“The Legislature, by. the praviso ‘That no

rights of thirds persons: may have intervened’ in-

tended to expressly give the protection which the

? _ Constitution afforded to vested rights.’

This last provision on third persons radia is ‘still

in the L951 Act. The State cannot be the third party:

and the Land Commissioner in his letter acted without

authority in refusing to reinstate the lands. As a

matter of law plaintiff's lands were reinstated under

the 1951 Amendment as well as under the 1897 “Aét.

As it was said in Cruzan vy. Walker, supra:

ee * When there are no third parties

who can lawfully complain of the reinstatement,

the state cannot be heard to do so.’

The state was not representing a third party here.

as there was no such thiad party present, nor could

defendant claim to bé the third party because it was |

over three years Jater that defendant came along.

Defendant also had constructive notice of plaintiff's

deeds recorded in the County Clerk's Office over 3 years

before. FR te’l, sic

According to the record in this case there was no

lawful objection. to the reinstatement of plaintiff's

forfeitéd lands in July, 1952 under any of the Acts of

1941, 1951, 1897. Then, as a matter of law, it was

deemed to have’ been reinstated. The Land Commis-:

sioner acted withont authority of law and could not

after plaintiff’s reinstatement, resell these lands to the

defendant or anyone else, under patents or even under

color of title.

THIRD POINT.

' The Land Commissioner Did Not Have the Authority ©

‘to Place These Lands on the Market For Resale and Issue

the Patents to the Defends“t, Until After the Attorney

General of the State Had Adjudicated the Claims of the

Plaintiff to These Lands. |

Question here is to ascertain whether the Land

Commissjoner had authority to place the land upon the

market and issue patent to the defendant. ;

The patepts obtained by defendant were upon lands

not legally‘upon the market for sale by the Land

(Commissioner. i.

The Land Office has many documents and official

records pertaining to the involved land, many of which

are plaintiff's Exhibits filed in this case. 8. 43/257

Two were contracts’ for the sale of. these lands

issued 45 vears before defendant made its application |

to buy these lands which were already sold. ie ne

Down through the years several heirs and vendees |

have been paying interest on these contracts. at id

‘As stated before’ during hard times settlers and

_vendees of settlers sometime had trouble paying the

interest. ‘It happened quite frequently that it became

necessary for the forfeited owners to wait for long »

- periods of time before reinstating their forfeited land.

Between 1910 and 1941 the Act providing, for re-

instatement of forfeited lands had no time limit on

the privilege to reinstate. It could be reinstated at any

time ‘‘provided that no rights of third persons may |

have intervened.”’

During one of these periods after the land had heen

forfeited for several years the land forfeited owner was

the D. H. Heinemann, Estate. On one hot July day, -

‘° July 23, 1952 there arrived at the Land Office sworn

applivations.on forms, formerly sent plaintiff by the

‘Land Office, to be used for these purposes stating that

this plaintiff was the owner of these forfeited lands"

- and ‘‘affiant hereby tenders all delinquent interest and

requ ‘sts that these tracts be reinstated”’ and sent the

checks to cover same. This oath was made /before a

deputy County Clerk and has the County Court seal

upon it. Ro !Aac, fax)

The General Land Office placed their —: on

these applications :

“RECEIVED

JUL 23, 1952

GENERAL LAND OFFICE.”

and gate each application a numbex and’ stamped it >

dn the application and then put the same correspond

ing number on the check for interest for that particular

application, and placing that little number up in the

-right hand corner of the check.

, The next day the Land Commissioner wrote. his

letter of July 24, 1952 stating he was returning all

applications and checks because they were not exer-

cised within the five (5) year period. He thus apnlied

the 1941 and 195L amendments instead of the Act of

1897 which had ng five (5) year time limitation or eny

other time limitation in it. R. 1G 104 |

Possession by the General Land Office Commis-

sioner, hinself, of these appheations and checks caused

them to fils official records of the General Land

Office ; they were deemed by law to have been filed in

his office, the same as if he had kept them. Snider vy. -

Methivin, 60 Tex. 487, 494, S. Ct. Tex. (No S. W. cited) ;

Holman v. Chevallier, 14 Tex. 337, 339, S. Ct. Tex.

(No S. W. cited). | .

Whether the above -records are by law deemed -to _

haw been filed or not, the letter the Land Commissioner

wrote July 24, 1952 confirmed that this plaintiff was -

claiming these lands and was tendering payments for

back interest... -. 1th 194

. A copy of this letter has remained filed as a part

of his official records in his office. A certified eopy of

it is, plaintiff's Exhibit No, 32. As stated before,

defendant has admitted the genuineness of this official

record. It makes no difference what file in the Land

Office it came from. It refers to 3 files and 3 pieces of |

land. RoweetHlo. | =

In 1900 the State Legislature passed an Act which

remained unchanged until 1989 aud now is known as

{ -

an”

387

Art. 5420. (5468) Of Vernon’s Civil Statutes of the

‘State of Teras, Annatated: Acts 1900, p. 29; Acts

1939, 46th Leg. p. 464, See. 1. | |

The early Acts of Feb. 23, 1900,’ See., 8, See Session

Acts 1900, First Called Session p. 29 at pp. 33-34,

which was.in force in 1910, at the time of the making

‘of this contract,-provided when any of the public lands,

or any lands of the state are claimed adversely to the *

state, it shall be the duty of the Attorney General to

institute suit therefor, ete. The 1900 Act, which ap-

plies in this case is stronger than the present Act of

1939, Art. 5420. The 1900 Act is clearer as to tie duty

of the Attorney Gener@fin case of claims adverse to’

the state. <. a find

According -to Mr. Chief Justice Gaines of the «—

Supreme Court of Texas,-in the Juencke v. Terrell,

98 Tex. 237, 82.8. W. 1025, 1026, S. Ct. Tex. 1904, in

quoting the 1900 Act in force # the time this contract

was made. as follows: ; >

; “* * * we think that the purpose of the

Legislature with reference to them is shown by

the eighth section of the Act. ‘That section in part

is as follows: ‘When any of the lands described

in this act, or any of the other pubhe lands of,

the stafe held or owned by any fund, or any land

in whieh thi state, or any such funds have an in- -

terest, are held, oceupied or claimed by any person

oer association or eorperation, adversely to the

state, or to such fund, it shall be the duty of the.

Attorney General to institute suit therefor,’ ete.

From this we think it. is to be inferred that the

policv of the Legislature in reference to lands

1 Appendix No. 5.

_ 38

whieh were ¢laimed by third parties was first to

establish its .title ‘before putting them upon the

market for sale, and that. it was-not intended that

they should be sold until the controversy between

the state and the elaimant had been adjudicated,

The present constitution contains this provision :

‘All genuine land certificates heretofore or here-

_ after issued shall be * * * patented only upon

' vacant and unappropriated pany domain, and not

upon any land titled oF owned under the .

color of title from the sovereignty of the state,

evidence of the appropriation of which ts on the

County Records or in the General Land Office.’

** * Const. Art. 14, See. 2.°° (Emphasis added. )

This plaintiff had his claims in. both the County

(af, LHe, FAl ia |

! tt)

In a trespass to try title case the Circuit cane for

the Fifth Circuit in 1914 had before it a question of the

Statute in force in 1910 as above stated with refgrence

to the duty of the Attorney General under the ;

Reeords and in the General Land Office. R

ppro-

priate statute and above ‘mentioned. portion of the

Texas Coistitution. |

ime facts were, that in the Distriet Court. the

plaintiff, Consolidated Louisiana Company exhibited a

_ patent from the Land Commissioner and the defendant

claimed what the plaintiff is claiming here, claiming |

that the Land Commissioner had no authority to place

the land upon the market until the Attorney General %

had adjudicated the prior claim to the land. These

instructions were denied by the District Court and the

Court of Appeals said in reversing the District. Court

in the Southern Pine Lumber Company v. Consolt-

dated Loutsiana Company, 217 Fed. 719, 723-725, C. ‘A

sth, 1914:

In 1904 a similar question, was passed upon

by the Supreme Court of Texas in Juencke v.

Terrell, Commissioner, 98 Tex. 237, 239, 82S. W.

1025, 1926, in which was construed Section 6 of the

Act of 1900. The reasoning of Mr. Chief Justice

Gaines applied with pee uliar force to the present

case, and the opinion is inserted in its entirety :"’

We will not undertake to quote the entire opinion

ax quoted by the Court, however we will quote excerpts

‘from this Court of A

which are as folloys:

“We apé firmly impressed with the conviction

that it wis the intention of the Legislature,’ as

manifested by the Act to which reference has been

made, to reserve from sale lands claimed adversely

‘to the state and to the school fund in good faith

under the Spanish or Mexican Grantsa‘until the

controversy between the state and. the claimants

has been adjudicated’ in favor of the state. In the

‘absence of such adjudication the lands could not be

legally plaeed upon the market for sale; and it

follows that the act of the Commissioner in sell-

ing the land in question to Stevenson was against

the law, and hence without validity.

**We are unable to give our assent to the sug-

gestion, made by the Consolidated Company, that.

the Legislature intended, either by the A-t of 1905,

or by any subsequent Legislation, to change or in

any manner to modify the rule announced in the ~

Jucucke v..Terreil,

It is further stated by counsel in their brief

that the question here involved was determined in

favor of the Consolidated Company by the Attor-

“

ypeals for Fifth Circuit, opinion,

“

ney General and the Land Commissioner, and that

the practical construction of those two officials is.

of great weight, and should be so regarded.by the

United States Court in construing a statute.

‘*Having reached the conclusion that the title

of the Consolidated Company is without validity,

and hence that that company must fail in the

— ro"

The Fifth Circuit quoted the entire opinion of the

leading Texas case on this subject namely Juencke v.

Terrell, su pra. As stated before, this case was decided

in 1904. The Fifth Circuit case was decided in 1914.

The Juencke ve Terreil, supra, has been quoted exten-

sively and cited down through the years. periodically

to the present time in cases in 1920, 1932, in 1943 and

in 1960.

In 1920 the case of F itapiestd v. Robison, 110 Tex.

>.469, 220 S. W. 768, 769, the Court said as follows:

— **The Commissioner is not a judicial officer.

It is not his function to annul grants of land form-

erly made by the state, and because so made, en-

titled to-be respected until set aside by appropriate

judicial proceedings. A patent to land ean only

he attacked by the state or someone invested with

a right prior to the patent.

“Tf the particular land had been wrongfully

patented and it is rightfully a part of the public

‘domain, the remedy of the State is on action in the

District Court prosecuted by.the Attorney Gen--

eral. Article 5468... (Now Art. 5420.)

The other éase in 1932 which cited and quoted ex-

tensively the duty ef the Attorney General and the

Constitution of the State of Texas as set out in the

Juencke vy. Terrell, supra, was State vy. Bradford, 121

Tex. 515, S. Ct., 50 S. W.-2d 1065, 1079, the Supreme

Court said: , ,

‘ .

‘To annul patents and awards is not a minis-

terial duty, and under. the law no such duty in this

respect rests upon the Laid Commissioner. This

requires the exercise of judicial authority. Nor

has the Land Commissioner the power to permit.

others to acquire rights on the land covered by

the patents and awards regularly issued by the

proper authority, respecting the,state, until the

differences, if any, existing between the state and

the patentees and the awardees and their assignees,

have been adjusted, or adjudicated."’ (emphasis.

added. )

The Juencke v. Terrell, supra, was again quoted in

1943 cin Davis v. Morley, 169 S. W. 2d. 561, 564-565,

Civ. App. Tex. The Court said at p. 065 a W.:

ad has never been regarded as the ministerial

duty of the Commissioner of the Gieneral Land

Office to annul. patents and awards.

to the land, the law requires that the Attorney

General bring suit to recover the land or remove

the cloud from the title thereof.

“* * * It is the rule to offer for sale only

vacant aud unoccupied publie domain.”

Juencke ¥. Terrell, supra, Was again cited as author-

itv in 1960, in the case of Foster-v. Gulf Ou Corpora-

tion, 335 8. W. 845, 848, Civ. App. 7 Ae

With the official records in the General Land Office _

showing that these lands were sold to settlers by con- —

tract in 1910 and that these settlers and their heirs and

vendees having paid interest on these contracts for

several decades and that this plaintiff's claims to this.

land was well known by the Land ere Pedi

were on file as official records in his office. ’These

claims by plaintiff had been made before any interven-

ing third party rights had taken place on July 23, 1952.

Based on the above authority cited it would seem that

the Attorney General had a duty to adjudigate the

plaintiff's claim before the Land Commissioner could

resell the land that had been sold ever since 1910.

The Land Commissioner was Without authority ‘to

“sell these lands which had already been sold and

awarded in 1910 to settlers and had settler vendee’s -

claims against them on file in his office as of July 23,

1952. He issued awards to the defendant on the same —

day that the applications arrived in his office Novem-

. ber 14, 1955 and then issued patents on them in 1956.

These patents, as a matter of law,-had no effect.

FOURTH POINT.

If the Land Commissioner and His Attorneys Were Cor-

rect in Refusing Plaintiff's Reinstatement Because. the

Legislative Change in the Acts of 1941, 1951, 1955, Then

These Legislative Acts Taken Together, Impair the Obliga-

tion of Contract, Insofar as They Attempt to Apply to

Contracts Made Before Their Enactment and are Uncon.- °

stitutional.

As we have seen in the early part of this brief

the Supreme Court of Texas has for over a half cen-

tury held many times and up tothe present date, that

‘the right of the settlers vendees, to reinstate their for-

feited lands, ix a vested right.

As the limitation period of five (5) years time was

not in the Statute of 1897, the Land Commissioner

would have to be using the provision which was

amended in 1941 and in 1951, so if he and his attorneys

are correct in the contention then they were using these

amended Acts which the Legislature passed after the

contract was made in 1910.

Art. 1, Sec. 10 of the Constitution of the United

States in part is as follows:

‘‘Nostate shall * * * passany * * * law

impairing the obligation of contracts * * *."

As we have set out before in the early part of the

‘brief, the Act of 1897, ch. 129, which provided for the

reinstatement of forfeited lands did not have in it,

the five (5) year statutory time of exercising the right,

as well as other basic requirements. This statute was

cited in the contract of 1910 as **Chapter 129, Act of

May 19, 1897."’

In 1941 and 1951 the Legislature amended this Act

and put in, among other basic changes as grazing leases

and delays by reason thereof, and the five (5) year’

limitation specified.

**Forfeitures by statute or contract are not

favored.” Gulf Production Co. vy. State, supra, -

98 Tex. 237, 231 S. W. 124. 131.

The Land Commissioner in his letter of July 24,

1952 stated that the only reason for denying the rein-

statement tose plaintiff of his forefeited lands was

because he had not exercised his right within the five

(5) year time limitation. He was applying the 1951

and 141 Amended Acts. If the Commissioner is cor- -

rect in his contention then these Acts impaired the

obligation of contract, insofar as they apply to con-

tracts made before their enactment, and taken together

with the Act of 1955, selling plaintiff's lands without

adjudication, are unconstitutional.

~ Bradicy vy. Lighteap, 195 U.S. 1, 20, 24 (1904).

Thegfacts in this case are: At the time of the exeeution

of the deéd of trust the statutes of [lineis contained

no limitation of time within which a Sheriff's or Mas-

ter’s deed must be taken after the period of redemp-

° 2

tion had expired, and prescribed no preljmfinary or:

layvs of right to purchase by reason of delivery or fail-

ure in taking out such a deed. Subsequent to the

execution of the deed of trust, and prior to the fore-

closure of it, the Legislature passed an Act providing

)

that the Sheriff’s\ and, Master’s deeds must be taken

out within five (5) years ‘from the expiration at the

time of redemption and providing, that when such deed

is not taken out within such time, the certifieate.of pur-

chase shall be null and void. The Court held, that the

law did not apply: to deeds of trust executed prior to

the passing of the Act and made the following state-

ment:

‘*But this Court. held, through Mr.- Justice

Miller, that all of the laws of the state existing at

the time a mortgage or any other contract is made,

which affects the rights of parties to the contract,

entered into and became a part of it, and are

obligatory on all Courts which assume to give a

remedy on such contract; * * * that it is there-

fore said that these laws enter into and become a

part of the contract—and that the remedy sub-..

sisting in a state when and where a contract is

made and to be performed is a part of the obliga-

tiod * * * The statutes contain no limitation

of time within which a Sheriff's or Master's deed

must be taken after the period of redemption had

expire. * * °"

After the contract was made the Legislature passed

an Act which changed and added a tive (5) year limi-

- tation as follows: Section 30 of the new Act provided :,

“When the premises mentioned. in any such

certificate shall not be redeemed in. pursvant of

‘law, the legal holder of such certificate shall be

entitled to a deed, therefore, at any time within

five (5) vears from the expiration of the time of

redemption. * * * When such deed is net taken

within the time limit by this Act, the certificate of

purchase shal] be null and void. * * *”’

At p. 24, it is further said by the Supreme Court:

. o.

“But reading the Act as the view of the

Supreme Court tells us te do, as taking away-her

right to maintain her possession, we are of the

opinion that it materially impairs the obligation of

her contraet, and deprives her of property without

due process. .

** Judgment reversed.”

It will be noted that the above five (5) year limita-

tion is very similar to the five (5) year limitation

“which was put on by the Texas Legislative Amend-

ments in the 1947 and 1951 Acts.

The Supreme Court of the State of Texas also has

ruled unconstitutional the Act of changing from a ten

(10) vear Statute of Limitation to a four (4) vear .

Statute of Limitation and in one of the leading cases

which has been since quoted, Frank v. The State Bank

and Trust Company, Tex. Com. App. 1924°-( Entered

as Judgment of Supreme Ct:), 263 S. W. 255, 256, 258,

the facts are set out at p. 255 S. W.:

| “The Legislature in 1913 amended Art. 5693

of the Citil Statutes (Vernon, Sayles’ Ann. Civ.

St. 1914, Art. 5693) changed the time for sale of

trust deed under deeds of trust from ten (10) to

four (4) vears, and provided that new limitations

should apply to deeds of trust exec ‘uted prior to

the passing of the new Act.”

Plaintiffs in error contends that the Act of 1913,

insofar as it attempts to change the period of limita-

tion of sale, under the deed of trust then existing and

executed subsequent to 1905, is in contravention of

both the State and Federal Constitution, in that said

Act

impairs the obligation of contract.

It was said by the Court: '

6 Ruling Case Law,‘p. 325, states the general

rule as to this question as follows:

‘Conformably to the well-established rule that

the laws which subsist*at the time and place of:

making a contract enter into and form a part of

it, as if they were expressly referred to or incor-

porated in its terms, the obligation of a contract

is measured by the standard of the laws in force

at the time it was entered into, and its perform-

ance is to be regulated by the terms and the rules

which they prescribe.’ | .

‘And it as applied to mortgages on page | 365,

same volume, It.is stated: ‘The general rule is

that the law in Pore e at the time the mortgage is |

executed, with the condition and limitation it in-

poses, is the law which: determines the force snd

affect of the mortgage; and hence it is that Changes

in the law imposes conditions and restrictions on a

mortgagee in the enforcement of his right, and

Which affevts its substance, are invalid as impair-

ing the obligation and cannot prevail.’

oe * Such Legislation impairs the obliga-

tion of contract, takes away vested rights, and is

therefore prohibited by the Constitution.”

At p. 258:

"We therefore hold that the Amendment of

1913 is uneorsti~gutioual insefar as it attempts te

apply thesnew period of limitation of four (4)

years, to the deeds of trast that were exeeuted

prior to the enactment of the Amendment.

7 48. aN

‘‘Cureton J. C. The judgment reecorimended °

will be entered as a judgment of the Supreme

Court”’ of Texas.

Later in 1927 the United States Court of Appeals

for the Fifth Circuit. in Drumright, et al. v. Texas -

Sugarland ¢ - et al., 16 F. 2d 657,.658, cert. ‘dealed,

1927, 274 Ws S. 749, had before it the same question,

which was before the Texas Court in the Frank.v. The

the ten (10) year Statute of Limitations réduced fo

four (4) years and also mortgage deeds of trust where

_ the Legislature passed the Act subsequent to the mak-

ing of the contract and. the Court said in citing the

above “Texas case at p. 658 as follows:

“The Act of the Texas Legislature of 1913

(Verrfon'’s. Sayles’ Tex. Civ. Statute 1914, Art.

5693), providing that the hen ofa mortgage shall

cease to exist four years after the maturity of the

debt secured thereby. is Unconstitutional as to the

above mentioned mortgage, exceuted in 1907 and

securing a debt, which matured in 191s, the previ-

ous existing Stataie, Which preseribed a limitation

of ten (1G) years, being applicable to such mort-

eave. Frank vo State Bank ane di Bia Cont pn,

. Pex. Com. App. 263 S. W. 250,

In the General Principles of Conustitutivual- Law hi

the United States of America, Srd edition by Thomas

M. Cooley, and Andrew C. MeLaugilin, at p. S31 mote

three says as follows:

*A-general law which is a standing offer of

land becomes a contract if the offer is accepted

49.

and payment made,-so that the certifieate of sale

eannot be eaneelled under the new law. Pernoyger

u. McConnaughty, 140 U.S. 1.’

‘The-facts in this’ case are: The State Legislature

In 1870 passed an Act selling sump land which inured

to the party under the Act of 1860. In 1878 Owens.

made an applieation to purchase: sump fand. Patent

would not issue until all monies were paid. 20% of

the amount was paid. Before alPof the amount was

paid the State Legislature passed another Act in T8877

declaring veid and of no e ‘ffeet all of the forme iY cer-

tifieates issued.

A citizen of California had bought some of these

certifieates and brought a suit.in equity and asked for

an injunetion te prohibit the enforcement of the Isqi

Act claiming that it violated the impairment. of the

obligation of eontract under the Constitution of the

United States. _

It was stated at p. 24:

“Tn other words, by suelo payment. this con-

tract with the state become SO Jae 1te UT as to

be in foree ino a elass of} contracts protected py

Art. bo See. 100of the Const. of the United States

which declares that ‘No state sliadl pass any how

paring the obligation ol contract 7

Further at p. 25:

'Phuaut Legislation surely naparires do the oblica

tion of the contract Owen had with the State, fer

ots effeet was te dest troy Valuable Praperty, rycht-

and privileges belongiig te him”

;

It is further said p. f

a he case commot be distinguished in principle,

from Osborn ve. Bank, Davis \) Gray, Board v.

McComb, and Allen vy, The Railroad Company,

cited above 3 and the reasoning in those cases apply

with equal force in this.” ,

A state cannot modify, except by mutual consent,

any provision of a pre-existing contract into which it

may have entered. New Jersey ve Wilson, 7 Cranch,

W4, 167; Sovereign Come v. Wilentz, 23 F. 8. 23,

appeal dis., 3806 U.S. 573, ILCNOS., 1938; Columbia

Railroad Company V. South Carolina, 261 U.S. 236,

M48, PHL (1922). ,

Mr. Chief Justice Marshall gave us some light on

this subject as far back as 1812, in New Jersey v.

Wilson, supra. The State-of New Jersey had passed

Legislation giving the Indians a part of the Jand tak

free provided the Indians reledsed their rights to. the

rest of certain portions of land.’ Later the New Jersey

Legislature repealed this Act and tried to make the:

Pndians’ vendees pay taxes and speaking for the Court,

he said. |

“Phe purchaser succeeds, with the assent of the

State, te all the rights of the Indians.. He stands,

With respeet to its land, in their place, and clainis —

the benefits of their coutraet. This contract is

certainly impaired sm it law which would annul

this essential dais of

; 1Ogborn ¥ Vv. Bank, 9 Wheat ‘738; Daca’ Vv. Gres. 16 Wall 203: pee

v. McComb, 92 U. S. 331, 541; Alien Vv. The. Railroad Company, 114

u. B. Sit.

is ! ol

—

After the Land Commissioner had refused -ta re-

instate the land in carrying out the provisions of the

amended Act of the Legislature of 1941 and 1941, the

Legislature again in 1955 passed an Act granting the

Land Commissioner the right to sefl this land and

other lands totaling 14,000 acres, to the —

This was known as Senate Bill No. 295, ( Whe 278, a6th

Legislature, regular Session 1955, This oe was what

they call a Special Local Act and is not found in any

of theWVernon’s Civil Statutes of the State of Texas

but was found in the Secretary of State's Office. (Ap-

pendix to this brief, no. 4.) Plaintiff never heard of

this Act, until June 1, 1961. |

We may obtain some assistance from Mr. Justice

Suit-rland in speaking for the Supreme Court, said

in Columbia Ry. Co. ¥. So. Carolina, supra, 201 . s

236, 248, 251 (1922), as follows:

“We begin the inquiry with the general rule

before us ‘Conditions subsequent, espe clally when

relied on to Work 2 forfeitures nust be exeated by

express terms or ¢lear implication and are not

construed strictly’. * * *

“The effect of the Act of 1917 is to convert.

that which we have held to be a covenant inte a

condition subsequent and to impose as’a penalty

*. for its violation the forfeiture of an extensive and

valuable property. Tt requires no argument. te

demonstrate that this constitutes an impairment

of the contraet here involved, im violation of the

Constitution. The impairment of a contract mit

consist In- increasing the burdens as well as in

diminishing its efficiency. ‘Any deviation from

its terms, by postponing or accelerating the period

of performance which it preseribes, imposing con-

ditions not-expressed in the contract, or dispensing

with the performance of those which are however |

minute, or apparently immaterial, in their, affeet

upon the contract of the parties, impairs its obli-

gation.” Green v. Biddle, 8 Wheat 1, 84. * * *"

CONCLUSION.

Fhe plaintiff, as aematter of law, substantially e¢om-

plied with the reinstatement of his forfeited lands on

July 23, 1952 regardless of the actions taken by the

Land Commissioner. | |

The defendant, as a matter of law, received no legal

rights when it received the patent in 1956 from. the

General Land Office Commissioner, who acted without

authority. yee .

‘The General Land Commissioner and his attorneys |

-acted without authority and of no. affect’ when they

refused to reinstate the forfeited land to the plaintiff

Ly his letter of July 24, 1952.

The General Land Office Commissioner in refusing

to apply the 1897 Act which was part of the plaintiff's

contract of 1910 and written in it in.two places, at the

first two lines in the eontract and in the Obligation”

later on, acted without authority and of no affect.

The General Land Office Commissioner in applying

the amended Legislative ets of 1941 and 1951, after

the 1910 contract had been made, was without authority

and of no affect. .° |

During the time after forfeiture and before the

reinstatement, the Suprune Court of Texas, frum 1900

to 1960 has ‘repeatedly held that plaintiff had vested

rights, ‘‘provided that no rights of third pe rsons may

have intervened.”’ -

The Land Commissioner had received the written

noticé that plaintiff claimed these Jands, which he

ac knowledged in his letter of July 24, 1952, copy of

which*remained an official record of the Land Office.

“When he did rot reinstate the forfeited lands, the

Attorney General of the State, under the Statutory

Law at the time this contract was made, had a duty to

adjudicate the question of the claims before the Land

Conunissioner, had authority to resell them.

If the Land Commissioner and his attorneys were

correct in applying the aniended Ac®& passed in 1941

and 1951 and the Act of 1955, then thé Legislative Acts

themselves, taken together, impair the obligation of

contract previously made and are unconstitutional,

insofar as they apply to contracts made beftre the

Legislative Acts were passed, |

[f the defendant received no rights-under sneh

patents it has nothing to ripen into a limitation period

or to claim estoppel or apply the principle of laches.

All the rights defendant has left, is to return the

patents to the Land Commissioner and get the paid’

purchase money back from the Comptroller.

The plaintiff must pay the interest he has befor:

‘tendered, but not accepted and returned and any othe:

interest due since 1952-under his eontract of 1910.

Even though, as a matter of law, he substantially com

plied with the reinstatement of his ferfeited lands on

July 23, 1952.

In Davis v. Yates,'63 C. A. 6, 133 S. W. 281, 285,

286, Writ of Error Deriied, Tex., 1911, as was said by

the Court:

“From what has been said Yates’ statutory

right to reinstate accrued when he made hus re-

quest and éomplied with the statute, and the post-.

ponement of the official indorsement did not post-

* * * ;

pone his right. ah |

‘Besides, after the reinstatement and the ean-

/ cellation, defendants had no recognized right to be

protected by said limitation statute. * * *

‘We conclude there was no estoppel. * * *

We hold in this connection that such right of

Yates became fixed as of the date of Ins compli-

ance with the terms of the statute and at that-time

appellant Davis had acquired no rights.”

Respectfully submitted, -

Hfanotp S. Lona,

Caples Building,

El Paso, Texas,

GREENBERRY SIMMONS,

Kentucky Home Life Building,

* Louisville 2, Kentueky,

Attorneys for the Plaintiff.

January 10, 1962.

55 .

APPENDIX No. 1.

Texas Statute, At Time Contract Was Made in 1910

Article 4218f.. When any portion of said land has been

’ classified to the satisfaction of the commissioner of the

the total of his purchases shall not: exceed four ctions,

and that it shall not include *e than two sections of

agricultural land, upon his. a oath that he is not act-.

ing in collusion with others for the purpose of buying the

land for any other person or corporation, and that no other

person or corporation is interested in the purchase thereof.

And if he or his vendor has.already resided upon; his home

together, shal! have résided upon it for three years, the

additional lands purchased may be patented at any time.

In all cases where a Settler purchases more than one section

the lands m excess of one section sy purchased must be

‘situated within a radius of five miles of the land oecupied

by him. Where any of the lands’ referred to in this act

" have been sold prior to July 30th, 1895, in quantities greater

. or less than forty acres or multiples thereof, and are in

good standing as to interest payments, they may be

patented in such quantities. In any cases where lands have

been forfeited to the State for the non-payment of interest,

the purchasers or their vendees may have their claims re-

‘instated on their written request, by paying into.the treas- -

ury the full amount of interest due-on such claim up to the

date of reinstatement ; provided, that no rights of third per-

sons may have intervened. :In all such cases the original

obligations and penalties shall thereby become as binding

as tf no forfeiture had ever occurred. (Emphasis added.)

APPENDIX No. 2.

Acts 1941, 47th Leg., p. 351, Oh. 191, Bec. 3; Article 5326,

_Vol. 15 Vernon's Civil Statutes of the State

. Of Texas, Annotated. :

Art. 9326. 5423 Forfeiture for nonpayment of interest;

reinstatement ; outstanding grazing leases

If any portion of the interest on ‘any sale should not be

paid when due, the land shail be subject to forfeiture by .

the Commissioner entering on the wrapper containing the

papers “Land Forfeited,” or words of similar import with

the date of such action and sign it officially, and thereupon

the land and all payments shall be forfeited to the State,

and the lands may be offered for sale on a subsequent -sale

date. In any case where lands: may hereafter be forfeited

“to the State for non-payment of interest, the purchaser§, —

or their vendees, heirs, or legal representatives, may have

> their claims reinstated on the‘= written request, by paying

into the Treasury the full amount of interest due on such

claim up to the date of reinstatement, provided that no

rights of third persons may have intervened. The right to

reinstate shal! be limited to the last purchaser from the .

State or his vendees or their hei-s or legal representatives.

Such right must be exercised within five (5) years from the

. date of the forfeiture, and the right to reinstate any clair

heretofore forfeited by the Coinmissioner must be exercise

within five (5) years from the effective date of this Act,

but not thereafter. In case there is an outstanding valid

grazing lease which would prevent reinstatement within

the time prescribed by this Act then such: claim may be

reinstated within sixty (60) days after the expiration. of |

such grazing lease, provided application for reinstatement

shall have been filed in the General Land Office within the

five-year . period: above prescribed accompanied with pay-

_Ment of all interest due thereon... Jn all such cases, the

etiiaie tiie and penalties shall thereby become as

binding as if no forfeiture. had ever occurred. If any pur-

chaser shall die; his heirs or legal representatives shall have

one year in which to make payment after the first day of

__ November next after such death before the Commisisoner

shall forfeit the land belonging to such deceased purchaser,

‘and should such forfeiture be made by the Commissioner

within said time, upon proper proof of such death being

made such forfeiture shall be set aside. Nothing in this

Article shall inhibit the State from instituting such legal

proceedings as may be necessary to enforce such forfeiture,

or to recover the full amount of the interest and such

penalties as may be due the State at the time such forfeiture

occurred, or to protect any other right to such land. Acts

1897, pp. 39, 184; Acts 1919, p. 314; Acts 1941, 47th Leg.,

p. 351, ch. 191,.§ 3. (Emphasis added.) -

APPENDIX No. 3.

- Acts 1951, 52nd Leg., p. 92, Ch. 59, Sec. 2; Article 5326,

Volume. 15, Vernon’s Civil Statutes of the

State of Texas, Annotated.

Art. 5326, 5423. Forfeiture for nonpayment of interest;

reinstatement; outstanding grazing leases .

paid when due, the land shall be subject.to forfeiture by the

Commissioner entering on the wrapper containing the

papers “Land Forfeited,” or words of similar import, with

the date of such action and sign it officially, and thereupon

the land and all payments shall be forfeited to the State,

and the lands may. be offered for sale on a-subsequent sale

date. In any case’where lands have heretofore been for-

‘feited or may hereafter be forfeited to the State for non-

payment of interest, the purchasers, or their vendees, heirs

or legal representatives, may have their claims reinstated

on their written request by paying into the Treasury the

full amount of interest due on such claim up to the-date of

re-instatement, provided that no rights of.third persons

may have intervened. The right to re-instate. shall be

limited to the last-purchaser from the State or his vendees

or thetr heirs or legal representatives. Such right must be

exercised within five (5) years from the date of the for-

feiture. In case there is an outstanding valid grazing lease

which would prevent re-instatement within the time pre-

scribed by this Act then such claim may be re-instated

within sixty (60) days after the expiration of such grazing

lease, provided: application for re-instatement shall have

been filed in the General Land Office within the five-year

period above prescribed, accompanied with payment of all

interest due thereon. Jn all cases the original obligations

and penalties shall thereby become as binding as if no

forfeiture had ever occurred. if any purchasershall die, -

his ans fe lngal_soprncontatives-sal have one (1) year

in which ‘to make payment after the first day of November

next after such death, before the Commissioner shall forfeit

the land belonging to such deceased purehaser; and should

such forfeiture be made by the Commissioner within said

time, upon proper proof of such death being made, such

forfeiture shall be set aside, provided that no rights of third:

persons may have intervened. Nothing in this Article shall

inhibit the State from ir stituting such legal proceedings - =

as may be necessary-to enforee such forfeiture, or to recover

the full amount of the interest and such penalties as. may

be due the State at the time such forfeiture occurred, or to

protect any other right to such land. As amended Acts

1951, 52nd Leg., p. 92, ch. 59, § 2. (Emphasis added.)

APPENDIX No. 4.

Acts 1955, Senate Bill No. 295, Chapter No. 278, 56th Leg., -

Regular Session, 1955, Signed by the Governor on

May 20, 1955 and Filed in Secretary of State's

Office May 23, 1955. Not in Any of —

- Vernon’s Civil Statutes of the

State of Texas.

CHAPTER No. 278 |

| S. B. No. 295

. AN ACT ,

authorizing the Commissioner of the General Land Office

for the State of Texas to sell’ Public Free School Land

situated in E] Paso County, Texas, to the City of El Paso,

Texas; and declaring an emergency. |

Be It Enacted By The Legislature Of The State Of Texas:

Section 1. The Commissioner of the General Land Office

is hereby authorized to sell to the City of El] Paso, El Paso

County, Texas, for a total ecnsideration based on the aggre-

gate fair and reasonable market-value of said land, but no

less than $6.50 per acre, as determined by two appraisers

appointed by the Commissioner of the General Land Office

of Texas, the following described Public School Lands

situated in El Paso County; and described as follows, to-wit:

"Wive 1, Block 81—T & P Railway Co. Survey

Oe ED TRG os 6 So ve eens, 321 acres

WY Ta 5 ose ov bags ,«...642 acres

MISS Sooo heli ee eee 642 acres

Peete cen - 642 acres

._ ¢ Po Anew Sear icste .....670.7 acres

CE IS ag he oa ee ‘,...661.2° acres

2°

Township 1, Block 82—T & P Railway Co. Survey

Section. 10°. Pe reel Peer er: 640 acres

Township 1, G. A. Mandy Survey.

Section 248 . Secliensesue :....640 acres |

eee +.640 acres

Section. ae SPR eer euiea ae ...-640 acres

Section mini tacesawipera ces 259.5 acres

- L. E. Mundy Survey oe 8 a

te . § a ree 640 ‘acres

Section 234 . = bevsucrsaxesen 640 acres

ON GY a 6 Nis heevacbevvanes 292 acres

N. D. ‘Mundy Sarve |

Section. 245... ....... hisess “....560 acres

SN Sabo ce becuse + bewsedus 637.5 acres

N % of Section 240......... imeone 328.65 acres

S.J. Larkin Survey yy -

2. Saree areas 640 acres

IE oe he dae caaseeons 440 acres

eee 640 acres

H. G. Foster Survey :

” Section 256.......... Te 6

North 14 of Section 257........ ..320 acres

North % of Section 258.......... 320 acres

SN EI ak oh Secdscsousess sees 640 acres

and aggregating 14,000.15 acres. Said lands shall be sold

upon the filing in the General Land Office of an application —

to purchase by the proper authority of .+e City of El Paso

- accompanied by payment of the full consideration herein

provided. Such sale shall be subject to any right-of-way

easements, surface leases, or any oil, gas, mineral leases or

permits theretofore given by the State on said lands. All

“mines and minerals and mineral rights, including oil and

gas in and under said lands, together with the right to enter |

thereon for the purpose of exploration and devélopment,

are hereby reserved to the State of Texas, and said lands

shall be subject to lease by the State for mineral explora-

tion and development in the same manner as is now, or. faced

63. “

hereafter be provided for the leasizig of unsold Public Free

| School Lands; provided, however, that the School Land

Board or other legally constituted authority offering said

lands for lease shall place in said leases such rules and regu-

lations as may be deemed proper by said board or agency

for the prevention of pollution and contamination of the —

fresh waters in, on, and under said jands.

Sec. 2. Upon payment of the purchase money provided

herein, payments of fees required by law, and the filing in|

the General Land ce of any field notes or corrected

field notes required by the Commissioner of the eneral

Land Office, patents shall be issued to the City of El Paso

containing the reservations provided for in Section 1 of

_ this Act.

_ Sec. 3. The fact that the City of El Paso-is in urgent

need of expanding its sources of water and of protecting

water wells previously drilled creates an emergency and

an imperative public necessity that the Constitutional Rule

that each bill be read on three several days in each House °

_ be suspended, and such Rule is hereby suspended, and this

Act shall take effect from and aiter its passage, and it is”

so enacted. <n - |

_ (8) Ben Ramsey (s) Jim Lindsey

President of the Senate Speaker of the House

' [hereby certify that S. B. No. 295 passed the Senate on

April 25, 1955, by a viva voce vote; May 9, 1955, Senate

concurred in Honse amendments, by a viva voce vote.

(s) Loyce M. Bell

Secretary of the Senate

. 64 | —*

» :

_ Thereby certify that S. B. No. 295-passed the House on

May 5, 1955, with amendments, by the following vote:

Yeas 136, Nays 0.

(2) Dorothy Haliman

‘ Chief Clerk of the House

Approved: . 7

May 20, 1955

Date ates ae

Allan Shivers Filed in the Office of the

Governor Secretary of State

2 : 10‘ o’eluck

May 23, 1935

(s) A. M. Muldrow

Secretary of State

(Seal)

THE STATE OF TEXAS

Secretary of State

I, W. O. Bowers, III, Assistant Secretary of State of the

State of Texas Do Hereby Certify that the attached is a

true and correct copy of the following described instru-

ments on file in this office;

Senate Bill No. 295, 56th Legislature, ae Shision,

1955, as signed by the Governor on May 20, 1955 and

filed for record in this‘office on May 23, 1955.

In Testimony Whereof, I have hereunto signed my namé |

officially and caused to be impressed: hereon the Seal of

State at my office in the City of Austin, this 15th day of °

September, A. D. 1961.

(s) W. O. en Iil

(Seal) ae - Assistant Secretary of State

_ APPENDIX No. 5.

Duty of the Attorney General of the State of Texas

. As It Was in 1910, Date of Contract.

Acts, Feb. 23, 1900, Sec. 8, Oh. 11, p. 29 at pp. 33-34

“p First Called. Session.

Sec. 8. When any of the lands described in this act, or

any of the other public lands of the State held or owned

- by any fund, or any lands in which this State, or any such

funds have an interest, are held, occupied or claimed by

_ any person or association or corporation, adversely to the

State, or to such fund; it shall be the duty of the Attorney-

General to institute suit therefor, together for rent thereon,

for any. damages thereto; and for the purpose of any such

suits for such lands, or affecting the title thereto or right

growing out of the same, thé venue thereof is fixed in

Travis county, Texas, concurrently with the-county of de-

~ fendant’s residence, and the courts of said county shall have

the same jurisdiction over the defendant and the subject

matter of the same as if such defendant resided, and such

Property was situated in said county. (Emphasis added. )

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.