US SUPREME COURT DECISIONS

Under the provisions of the Act of the State of Texas of July 14, 1879, amended March 11, 1881, and repealed January 22, 1883, in respect of the purchase of unappropriated lands, the applicant was obliged, in order to obtain the right to purchase, to cause the land desired to be surveyed, and the survey, field notes and maps to be returned within a time prescribed, and no tract could be purchased containing more than six hundred and forty acres. R. and T. entered into an agreement consisting of two papers but constituting and declared on in this case as one contract, whereby R. agreed to transfer to T. his rights to purchase acquired under applications for the survey of 1,160,320 acres; to make all the surveys, field notes and maps thereof, and file them in the office of the surveyor and in the General Land Office of the state within the time prescribed by law, and T. agreed to pay twenty-five cents per acre for such rights, and five cents per acre for the surveys, field notes, and maps and the filing thereof. T. failed to make any of the payments, and R. failed to file the surveys, field notes, and maps in the General Land Office within the stipulated time excepting those covering 15,360 acres.

Held: chanrobles.com-red

Page 162 U. S. 171

(1) That the covenants of the contract were mutual and dependent and subject to the rule that the party who insists upon performance from the other side must show a performance on his own part, while he who wishes to rescind a contract need only show nonperformance or inability to perform by the other party

(2) That as between applicants and the state, while it seems from the course of decision in Texas that an applicant could obtain more than a single tract at one time, yet the policy of the act was that each tract should be considered as independent of other tracts the purchase of which also might be sought, and as R. failed as to the larger number of tracts to file the surveys, field notes and maps within the time prescribed, he lost the absolute right to demand patents from the state, on payment for such tracts, and was therefore unable to perform his contract with T. for the whole number of acres, according to its terms;

(3) That if, upon application, the applicant obtained any right which under the act was susceptible of transfer, it was not vested until the surveys, etc., were filed;

(4) That the act contemplated that the surveys should be made upon the ground, and it not only did not appear in this case that such surveys had been made, but it would seem that they must-have been made up from office documents and not from actual survey on the ground.

This case comes up on a writ of certiorari, issued to the United States Circuit Court of Appeals for the Fifth Circuit. The action was brought for damages for an alleged breach of a contract for the sale, by the defendant to the plaintiff, of certain unappropriated public lands of the State of Texas, the right to the title of which he claimed to have acquired from the state, and it arose upon the following facts: in July, 1879, the legislature of that state passed an act for the sale of a portion of its unappropriated public lands and the investment of its proceeds. It provided that any person, firm, or corporation desiring to purchase any of such lands set apart and reserved for sale might do so by causing the tract of land which the parties desired to purchase to be surveyed by the authorized public surveyor of the county or district in which the land was situated. And it was made the duty of the surveyor to chanrobles.com-red

Page 162 U. S. 172

whom application was made by responsible parties to survey the lands designated in such application within three months from the date thereof, and within sixty days after the survey to certify to, record, and map the field notes of the survey, and to return to and file the same in the General Land Office, as required by law in other cases. The statute also provided in its fifth section that within sixty days after the return to and filing in the General Land Office of the surveyor's certificate, map, and field notes of the land desired, it should be the right of the parties who had the same surveyed to pay or cause to be paid into the treasury of the state the purchase money therefor at the rate of fifty cents per acre, and that upon the presentation to the Commissioner of the General Land Office of the receipt of the state treasurer for the purchase money the commissioner should issue to the applicant a patent for the tract or tracts of land thus surveyed and paid for.

The statute declared that no tract of land should be sold under the provisions of the act which contained more that six hundred and forty acres, and that no tract should have a greater frontage on any running stream or permanent water than 1 vara per acre for each survey of three hundred and twenty acres or less, and three-fourths of one vara per acre for all other surveys.

The statute also enacted that after the survey of any of the public domain authorized, it should not be lawful for any person to file or locate upon the lands surveyed, and that such file or location should be void. It also declared that, should any applicant for the purchase of public lands fail, refuse, or neglect to pay for the same at the rate of fifty cents per acre within the time prescribed in section five of the act -- that is, within sixty days after the return to and filing in the General Land Office of the surveyor's certificate, map, and field notes -- he should forfeit all rights thereto, and should not thereafter be allowed to purchase the same, and that the land thus surveyed might be sold by the Commissioner of the General Land Office to any other person, firm, or corporation who would pay into the Treasury the purchase money therefor.

The plaintiff below, the defendant in error in this case, chanrobles.com-red

Page 162 U. S. 173

George W. Russ, a citizen of Texas, alleged that sometime in October, 1882, he, being a responsible party and intending to purchase a body of land which was subject to purchase and sale, applied, under the act of Texas, as amended, to the surveyor of the County of E1 Paso for the purchase from the state and for the survey of eighteen hundred and thirteen sections of land of six hundred forty acres each, being, in the aggregate, one million one hundred and sixty thousand three hundred and twenty acres, situated in that county, and forming part of the Pacific reservation; that the application was made in two instruments, describing different portions of the land, and that his applications were filed and recorded in the office of the surveyor; that on the first of November, 1882, he was about to proceed to have the lands surveyed into tracts of six hundred forty acres each when the defendant below, Telfener, offered to assume the payment thereof and to contract for the sale and assignment of his (Russ') right to purchase the lands applied for from the state, and that thereupon a contract was executed between them, Russ and Telfener, bearing date on that day, in two separate instruments, constituting, however, only one distinct contract in its entirety, and as such contract, with dependent conditions, it was declared upon, by the terms of which Russ, claiming to have made application in due form for the purchase of about one million of acres of land in E1 Paso County, and reciting that Telfener was desirous of purchasing of him all his right, title, and interest in the lands under the applications made for their purchase, provided they were regularly made under the Act of July 14, 1879, agreed and promised to transfer and assign to Telfener all his (Russ') right, title, and interest in the lands applied for, the consideration being twenty-five cents per acre, which consideration Telfener promised to pay, and Russ also agreed to have the surveys made and filed with the maps and field notes in the General Land Office, for which Telfener was to pay him five cents per acre. It was for an alleged breach of this contract that the action of Russ, the plaintiff below v. Telfener was instituted. chanrobles.com-red

Page 162 U. S. 174