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This evidence may have tended to show a sale or award to appellee on August 21, 1897, but did it conclusively do so? We think not. No certified copy or other direct proof of the entry or other record in the Land Office of the sale to appellee was produced on the trial, and no reason is suggested by the record why this was not done, unless it be that such proof would have been unfavorable to appellee. So far from conclusively showing an award to appellee prior to September 30, 1897, the evidence tended rather to show that the award had really been made after that time, about November 2, 1897, when notice thereof was sent to the county clerk, though the sale was thenceforth treated in the General Land Office as having been made when the application to purchase was filed there-August 21, 1897, in accordance with the following provision of the law:

the sale shall be deemed and held effective from the date the affidavit and obligation are filed in the General Land Office.” Rev. Stats., art. 4218j.

If, then, there had been no sale, either in substance or in form, to appellee when the “unsold school lands” were placed on the market by the above letter of September 30, 1897, the land in controversy was by that letter, and for the first time, placed on the market at $1 per acre, and as the Land Commissioner was not authorized to sell it to appe!lee at that price on an application previously made when the price was $2 per acre (as was decided by our Supreme Court in Hendrix v. Gracy, 51 Southwestern Reporter, 846), it must be held that the award to him afterwards did not take it off the market, but left it still subject to the application of appellant.

But on the other hand, if the award to appellee as shown by the records of the General Land Office had already been made when the letter of September 30, 1897, was written, the view taken by the trial court was correct. We have no doubt the case will be more fully developed on the next trial.

For the error above indicated, the judgment is reversed and the cause remanded for a new trial.

ON MOTION FOR REHEARING.

The opinion of the Supreme Court in the late important case of Hazlewood v. Rogan, 67 Southwestern Reporter, 80, seems to require a modification of our opinion in this case.

In the case of Hendrix v. Gracey, 50 Southwestern Reporter, 137, it was held by this court that the application of Hendrix to purchase as an actual settler the section of land involved in that contention at $1.50 per acre, though filed when the price was $2 per acre, entitled him to an award without making a new application when the price was reduced to $1 per acre. Inasmuch as he was clearly an actual settler and his application to purchase at $1.50 per acre was still pending and insisted upon, notwithstanding the reduction of the price to $1 per acre, no right of Gracey or any other applicant having intervened, we treated

his application as being in substantial compliance with the law providing for the sale of school lands to actual settlers. But on writ of error the Supreme Court overruled this view, and held that inasmuch as the application of Hendrix did not comply with the law at the very time when it was filed in the General Land Office it was void, and no right to the land attached under it when the price was so reduced as to be covered by it, although “Gracey may not have acquired any legal right himself,” assigning as the reason for this ruling, “because the law is not so written.” The strict and literal interpretation thus given this statute seems, however, to have been, in some respects at least, materially modified, if not rejected, in the case of Hazlewood v. Rogan above referred to, in which it is held that an application made to purchase school land as additional land by one entitled to purchase additional land, although filed before the land is on the market, will support an award made after the land is on the market if such award be made before any superior intervening rights have attached. Such is our understanding of the opinion of the learned Chief Justice in that case, which, as already seen, accords with the view originally expressed by us in Hendrix v. Gracey. It is insisted in the argument of counsel for the motion that the "test adopted (by the Supreme Court) in the Gracey case can not be harmonized either with the test or the reasoning in the Hazlewood case,” and it is difficult for us to see how the application can be treated as absolutely void in the one case because prematurely filed, and good enough for a valid award in the other although prematurely filed; but this we leave to the Supreme Court to settle. There is, however, this difference between the facts of the Hendrix-Gracey case on the one hand and the Hazlewood-Rogan case and the case at bar on the other: In the former no award was made to Hendrix, while in each of the latter awards were made, though upon applications prematurely filed.

We have concluded, therefore, to modify the original opinion in this case by withdrawing the following: "and as the Land Commissioner was not authorized to sell it to appellee at that price on an application previously made when the price was $2 per acre (as was decided by our Supreme Court in Hendrix v. Gracey, 51 Southwestern Reporter, 846), it must be held that the award to him afterwards did not take it off the market, but left it still subject to the application of appellant."

In lieu of what is thus withdrawn we now hold, on the authority of Hazlewood v. Rogan, that if the land in controversy was awarded to Wagley as additional land after the price was reduced, though upon an application previously filed, Steward, who was plaintiff below and whose application was undoubtedly subsequent to the award to Wagley, was not entitled to recover, because he not only failed to prove, as was incumbent upon him, that Wagley was not entitled to the award, but offered no evidence on that subject. Reeves v. Smith, 58 S. W. Rep., 185, and several other cases. In the contingency, then, of an award to Wagley after the price of the land was reduced, as well as in that of an award to him before, if shown, as is to be inferred, by the records of

the General Land Office when the Commissioner sent out the letter of September 30, 1897, appellant, whose application stood rejected, failed to show that the land was on the market at the price offered by him when he filed his application.

It follows from this conclusion that the court did not err in instructing a verdict against appellant, and that the motion should be granted and the judgment affirmed.

Motion granted. Judgment affirmed. Writ of error refused.

W. K. BELL ET AL. V. C. C. WILLIAMS ET AL.

Decided February 15, 1902.

1.-Public Lands—Trespass to Try Title-Burden of Proof.

Where plaintiffs sued for State school land, claiming under a rejected application subsequent in time to the application upon which it had been awarded by the Commissioner to defendant as additional land, the burden was on plaintiff's to show that defendant was not an actual settler at the time of her application to purchase the additional land, or was acting in collusion with her codefendant in fraudulently acquiring the land for him. 2.-Same-Award Prima Facie Proof of Settlement.

The award of the Commissioner to defendant being prima facie proof of her actual settlement, it was error for the court to exclude evidence of it from the consideration of the jury, especially as defendant, being aged and decrepit, was not present at the trial to testify, and the charge was not clear as to the burden of proof being on the plaintiff.

Appeal from Palo Pinto. Tried below before Hon. W. J. Oxford.

Howard Martin and F. 0. McKinsey, for appellants.

Jno. H. Eaton and Geo. A. McCall, for appellees.

STEPHENS, ASSOCIATE JUSTICE.—October 20, 1899, Wilson Bates sued W. K. and R. M. Bell in trespass to try title to recover the west half of section 66, block 2, Palo Pinto County. November 14, 1899, C. C. Williams sued Wilson Bates and W. K. and R. M. Bell in trespass to try title to recover not only the west half of said section 66, but also the north half and southeast quarter of section 58 in same block. December 27, 1900, Wilson Bates answered the suit of Williams with a disclaimer as to section 58 and a plea of not guilty as to section 66. The Bells answered both suits with separate pleas of not guilty. On motion of Bates and Williams the two suits were consolidated and tried together, the trial resulting in a verdict and judgment in favor of Bates for the land claimed by him and in favor of Williams for the other tracts, from which the Bells have appealed.

The court instructed a verdict against W. K. Bell (who held all the lands in controversy under the award of the Land Commissioner), be

cause he had lost title to the basic section before making his application to purchase the additional lands, as was decided in Bell v. Williams, 56 Southwestern Reporter, 779.

The application of Bates and of R. M. Bell to purchase the west half of 66 and the applications of R. M. Bell to purchase the north half and the southeast quarter of 58 were filed in the General Land Office at the same time, 8 o'clock a. m., September 20, 1897. The second applications of Williams (the first having been made before the land was on the market) were not filed till July 5, 1899. All parties applied to purchase the lands in controversy as additional lands.

The only controverted issues of fact submitted to the jury were (1) whether or not R. M. Bell was an actual settler on her home tract, the southeast quarter of section 42 (awarded to her May 24, 1897), when she applied to purchase it, May 5, 1897, and whether or not she still occupied it when she applied to purchase the additional lands; (2) whether or not in making the original purchase, or in making applications to purchase the additional lands, she was acting in collusion with her son, W. K. Bell, to acquire the same for him.

There was a general verdict in favor of Bates for the west half of 66 and in favor of Williams for what he claimed out of the other section.

The court undertook to instruct the jury as to the burden of proof, but failed, we think, to distinctly place it on Bates and Williams, who undoubtedly held the affirmative of these issues. They were both plaintiffs as to R. M. Bell, and as such were required to show a superior right to the lands sued for. Neither of them had obtained an award from the Land Commissioner and neither of them had filed an application prior to hers, that of Bates being contemporaneous and those of Williams subsequent. The home tract of R. M. Bell had been awarded to her upon application to purchase it as an actual settler, which award had never been canceled, and a prima facie case was thus made in her favor of actual settlement in the first instance. A certified copy of this application was read in evidence, but R. M. Bell, who was both aged and decrepit, did not appear as a witness at the trial. The court instructed the jury that they could not consider it as evidence of actual settlement on her home section and to disregard it entirely on that issue. This charge had the effect of destroying the prima facie case made in favor of R. M. Bell when she proved that the application had been accepted by the Land Commissioner, and was especially to her detriment as she did not testify before the jury, and the charge on the burden of proof was, to say the least, confusing, for we have found it difficult to determine ourselves where the court meant to place the burden of proof on the controverted issues of fact.

The charge submitting the issue of collusion is not entirely free from the objections made to it in appellants' brief. We find no merit in assignments raising other questions.

Because the court erred in the charges affecting the burden of proof and in singling out and withdrawing from the consideration of the jury

the application of R. M. Bell upon which the Land Commissioner had made an award, the judgment must be reversed and the cause remanded for a new trial.

Reversed and remanded.

0. S. LATTIMORE V. E. W. PROVINE ET AL.

Decided November 9, 1901.

1.-Vendor's Lien Note-Assignment After Maturity-Defenses.

Where a vendor's lien note is assigned after maturity the assignee takes it subject to any defense good against the assignor, and can not enforce the lien against portions of the land previously conveyed by the vendee with releases from the vendor, 2.-Same-Notice to Vendor-Subsequent Conveyances.

Where a purchaser of land on which a vendor's lien is retained plats it for town lot purposes, the recording of the plat and subsequent conveyances charges his vendor with constructive notice thereof, and of the warranties in the deeds and the order of alienation. 3.-Same-Release of Lien-Inverse Order of Alienation.

Lots so platted and conveyed by the purchaser are subject to the lien of his vendor in the inverse order of their alienation, and where such vendor releases a lot so conveyed, he thereby relieves from his lien lots previously conveyed to the value of the lot released, and one who subsequently purchases the vendor's lien note from him after maturity is bound by such release. 4.-Same Assumption of Lien Discharged.

Where a vendee of land subject to the vendor's lien conveyed part of it to a grantee who assumed in the deed to him a proportionate part of the vendor's lien debt, and afterwards, on the conveyance of other parcels, the vendor, at the vendee's request, released them from his lien, the vendee receiving part of the purchase money, the lien securing the grantee's assumption was also released, and could not be foreclosed by an assignee of such vendor's lien who took the lien note after maturity.

Appeal from Tarrant. Tried below before Hon. Irby Dunklin.

Jas. G. Browning and Pruit & Smith, for appellant.

N. H. Lassiter, C. Von Carlowitz, Orrick & Terrell, Q. T. Moreland, and R. W. Flournoy, for appellees.

HUNTER, ASSOCIATE JUSTICE.--This is a suit upon a promissory note of $5000 executed by E. W. Provine and F. M. Marple to Sam Evans, on the 20th day of August, 1890, due five years after date, and by said Evans sold and assigned to appellant on the 15th day of April, 1899, which transfer was duly recorded on the 8th day of January, 1901. This note was given for part of the purchase money due to the said Evans on a small tract of land lying in the suburbs of Fort Worth, and a vendor's lien on said land was expressly retained in the deed of conveyance executed by the said Evans to said Provine and Marple, who afterwards divided said land into blocks and lots and sold the same to

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