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14, 1879, amended March 11, 1881, and repealed January 22, 1883, in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:
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
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,
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.
Page 162 U. S. 174
MR. JUSTICE FIELD, after stating the provisions of the act of
Texas as above, delivered the opinion of the Court as follows:
No right, title, or interest in the lands which Russ desired and
applied to purchase passed to him solely by his application for the
survey. Until that was followed by the survey, map, and field notes
of the survey, and they were filed in the general land office of
the state, it gave no right to the applicant to purchase the
land.
In
White v. Martin, 66 Tex. 340, the court, referring
to the Act of July 14, 1879, asks the pertinent question, "How may
an applicant for lands under that statute become a purchaser?," and
replies as follows:
"The statute answers the question. He 'may do so by causing the
tract or tracts which such person, firm, or corporation desires to
purchase to be surveyed.' When this is done
as the act
contemplates, then,
and not before, the state contracts,
upon the purchaser's complying with the other requirements of the
act, that it will convey to him the land surveyed. When this
point was reached, there existed an executory contract which gave
the purchaser a vested right, upon complying with his part of the
contract, to have the land purchased."
In
Campbell v. Wade, 132 U. S. 34, which
was in this Court at the October term, 1889, it was stated that it
was contended in the state courts, and the contention was renewed
here, that the petitioner (who desired to purchase a portion of the
unappropriated lands of Texas), by his application for a survey,
had acquired a vested interest in the lands he desired to purchase
which could not be impaired by their subsequent withdrawal
Page 162 U. S. 175
from sale. But the Court replied that this position was clearly
untenable; that the application was only one of different steps,
all of which were necessary to be performed before the applicant
could acquire any right against the state. The application was to
be followed by a survey, and the surveyor was allowed three months
in which to make it. By the express terms of the act, it was only
after the return and filing in the General Land Office of the
surveyor's certificate, map, and field notes of the survey that the
applicant acquired the right to purchase the land by paying the
purchase money within sixty days thereafter. "But for this
declaration of the act," said the Court, "we might doubt whether a
right to purchase could be considered as conferred by the mere
survey so as to bind the state. Clearly," the Court adds,
"there was no such right in advance of the survey. The state was
under no obligation to continue the law in force because of the
application of anyone to purchase. It entered into no such contract
with the public. The application did not bind the applicant to
proceed any further in the matter, nor, in the absence of other
proceedings, could it bind the state to sell the lands."
There is another view of this case which merits consideration.
The contract between Russ and Telfener was for Russ to sell to the
latter his right to purchase from the state the entire tract of
eighteen hundred and thirteen sections of its public lands for
which he had applied, not for any particular portion of that tract.
Telfener had never proposed to take any less than the whole amount,
nor contracted to do so. An offer of any less by Russ, had it been
made -- of which there is no evidence -- would never have been a
compliance with his contract with Telfener.
It does not appear that the entire tract of land was surveyed
until after November 1, 1882. At that time, ninety-eight sections,
embracing sixty-two thousand seven hundred and twenty acres of the
tract, were unsurveyed, and it could not in truth be alleged that
on the 1st day of that month, the plaintiff was the sole owner of a
valuable, valid, and transferable interest in the whole body of
land, embracing eighteen hundred thirteen tracts, amounting to more
than a million acres of
Page 162 U. S. 176
land, as averred by him in his declaration. On the contrary, he
possessed no interest in the whole body of land of that amount, and
if the contract for the purchase was possessed of any validity, it
must have applied to the whole body in its entirety, and not to any
particular portion thereof. And of the land surveyed, payment at
the rate of fifty cents per acre was only made on twenty-five of
the surveys -- at least there was no evidence of the payment on any
other land surveyed. And the applicant, Russ, had acquired no
vested right to purchase of the state the whole of the land,
because he had not complied with the law in that behalf.
The ninth section of the statute declared in express terms that,
should the 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 -- which was
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 -- he should forfeit all right thereto, and should
not thereafter be allowed to purchase the same, and the land thus
surveyed might be sold by the commissioner to any other party who
would pay into the Treasury the money therefor. No official survey,
as it appears, was made of the whole amount of the lands which the
plaintiff below, Russ, desired to purchase, and no map or field
notes of the whole amount were ever made and returned to the
General Land Office, and no payment for the lands was ever made or
tendered to the treasurer of the state. The claim, therefore, of
having acquired any right or title in and to the whole amount of
the lands by the proceedings taken was manifestly groundless. The
plaintiff below could not convey any proprietary interest in the
whole amount of the lands desired until the required payment
therefor was made, and any promise by the defendant below,
Telfener, to pay to him twenty-five cents, or any amount, for an
acre of such hoped-for and not acquired land, or for any less
quantity, was worthless, without any value or consideration. The
plaintiff below, however, pushed his claim for the compensation of
twenty-five cents an acre, which, not being recognized, he brought
an action against Telfener
Page 162 U. S. 177
to recover the same, and for the surveys and the return and
filing of the same and the map and field notes in the District
Court for the County of Travis, in Texas. The defendant below,
Telfener, appeared to the action, and on his motion it was removed
to the Circuit Court of the United States for the Western District
of Texas. He then answered the petition, denying its allegations
and averring that his pretended agent, one Baccarisse, through whom
Russ alleged the contract was made, never had any authority to make
a contract of the kind, and that Russ never acquired by his
applications any right or interest in the land, the right to
purchase which he claimed to have sold to the defendant, the
survey, map, and field notes never having been returned to the
General Land Office as required by the third section of the statute
of Texas, and he never having made or tendered any payment for the
same, as also required by that section, and that any interest thus
acquired was without any tangible or appreciable value.
The case was tried in the Circuit Court of the United States at
Austin, Texas, and a judgment therein was rendered in favor of Russ
against Telfener, the plaintiff in error, in July, 1893, for the
sum of $518,440.50.
The latter thereupon took the case on writ of error to the
United States Court of Appeals for the Fifth Circuit, where the
judgment was affirmed in February, 1894. 60 F. 228.
He then filed a petition for rehearing in the court of appeals,
which was overruled in May, 1894, and the case was afterwards
removed into this Court on petition of the plaintiff in error upon
a writ of certiorari in October 1894.
The plaintiff in error now submits, upon the writ of certiorari
from this Court, that there was manifest error in the rulings of
the circuit court of appeals requiring the reversal of its
judgment, in this:
First. That the law of Texas expressly restricted the right of
the applicant to purchase any portion of the unappropriated public
lands of the state to six hundred forty acres in one tract, and in
this case the plaintiff claimed, and the court of appeals sustained
his claim, that he had acquired a
Page 162 U. S. 178
right, pursuant to the proceedings taken under the statute, to
purchase one million one hundred and sixty thousand three hundred
and twenty acres in one tract of the unappropriated lands of the
state.
Second. That the evidence in the record shows that the alleged
contract between the plaintiff in error and Russ was made on the
1st day of November, 1882, and that after that date Russ caused
ninety sections of the lands, embracing over sixty-two thousand
seven hundred and twenty acres (the right or privilege to purchase
which he pretended to have previously sold to the plaintiff in
error) to be surveyed, and though, until such survey and its
completion and return with map and field notes to the Commissioner
of the General Land Office and filing of the same in that office,
no right or privilege on the part of Russ to purchase any portion
of the ninety-eight sections was initiated, the court of appeals
held that Russ had a valuable and assignable right in those
sections, whether the survey thereof and its field notes were
returned and filed in the General Land Office or not, directly in
contravention of the third section of the statute of Texas, which
declares that:
"It shall be the duty of the surveyor, to whom application is
made by responsible parties, to survey the lands designated in said
application within three months from the date thereof, and within
sixty days after said survey to certify to, record and map the
field notes of said survey, and he shall also, within the said
sixty days, return to and file the same in the General Land Office,
as required by law in other cases."
And also in disregard of the forfeiture of any right acquired by
Russ to purchase the lands for which he had applied, imposed by
section nine of the statute of Texas, which declares in express
terms that, should any applicant for the purchase of public land
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 this
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 of the land desired -- he shall forfeit all right
thereto, and shall not thereafter be allowed to purchase the same,
but
Page 162 U. S. 179
the land so surveyed may be sold by the Commissioner of the
General Land Office to any other person, firm, or corporation who
shall pay into the treasury the purchase money therefor. And the
evidence contained in the record shows the fact to be that out of
the eighteen hundred thirteen sections of land of which survey was
desired, only the field notes of a portion of the sections were
returned and filed within the time required, yet the circuit court
of appeals held that it was wholly immaterial whether the surveys
under the application of Russ were made and returned within the
sixty days designated or not returned at all, which ruling was
plainly in disregard of the express provisions of the act of the
Texas Legislature, providing for the sale of any of the
unappropriated public lands of the state.
Third. That the testimony contained in the record of the cause
further shows that none of the sections which Russ alleged that he
had requested to be surveyed, and had obtained a survey thereof,
were surveyed on the ground, but that which was alleged to be a
survey of the sections and returned as such consisted of work done
in the office of the Commissioner of the General Land Office and
presented as a survey, and although it was held by the laws of
Texas and the decision of its supreme court that the surveys of its
unappropriated public land must be made on the ground, that the
surveys not thus made were null and void, and did not confer upon
the applicant any right or purchase, the court of appeals held that
it was immaterial whether the surveys were actually made on the
ground or consisted of office work.
Fourth. But, assuming that the plaintiff finally pursued fully
all the proceedings required to obtain a right to purchase of Texas
the whole amount of her unappropriated lands claimed, namely, one
million one hundred sixty thousand three hundred twenty acres, and
the contract alleged between Russ, the plaintiff, and Telfener, the
defendant, was made, yet such contract was conditional, and
dependent upon the performance by the respective parties of the
conditions devolving upon each party at the time stipulated, and
ceased to be binding upon either one on the failure of the other
to
Page 162 U. S. 180
comply with the performance stipulated on his part. Russ, the
plaintiff, was to acquire of the state such interest in the
property as would authorize him to sell and transfer to the
defendant a valid title thereto, and to acquire such a valid title,
he was bound to make performance of his contract with the defendant
by filing the surveys, map, and field notes of the whole within the
prescribed time, so that the defendant might have the right to
demand patents of the state on payment of the purchase money of
such property to its treasury, which he never did, and therefore
released the defendant of all obligations to perform the alleged
contract on his part. Authority for this position will be found in
the cases of
Bank of Columbia v.
Hagner, 1 Pet. 465;
Hill v. Griggsby &
Smittle, 35 Cal. 656, and
Englander v. Rogers, 41
Cal. 421.
In
Bank of Columbia v.
Hagner, 1 Pet. 454,
26 U. S. 464,
this Court, speaking by Mr. Justice Thompson of the distinctions
made in covenants or promises of parties to a contract for the
purchase and sale of real property, whether they were to be
considered as independent or dependent, said:
"It is evident that the inclination of courts has strongly
favored the latter construction as being obviously the most just.
The seller ought not to be compelled to part with his property
without receiving the consideration, nor the purchaser to part with
his money without an equivalent in return. Hence, in such cases, if
either a vendor or vendee wishes to compel the other to fulfill his
contracts, he must make his part of the agreement precedent, and
cannot proceed against the other without an actual performance of
the agreement on his part or a tender and refusal. And an averment
to that effect is always made in the declaration upon the contracts
containing dependent underakings, and that averment must be
supported by proof."
In this case, there was no offer or tender of performance by the
plaintiff to the state, which was essential to create an obligation
to pay any money on the part of the defendant. There is therefore
no ground for recovery by the plaintiff upon his alleged contract
with the defendant, there having been no such performance, or offer
of performance, on his
Page 162 U. S. 181
part to the state as would enable him to acquire such an
interest in the property that he could comply with his engagement
to the defendant.
In
Hill v. Griggsby & Smittle, the Supreme Court of
California held that:
"In a contract for the sale of real estate, where the purchaser
covenants to pay the purchase money and the vendor covenants to
convey the premises at the time of payment, or as soon as it is
paid, the covenants are mutual and dependent, and neither can sue
without showing a performance, or an offer to perform on his part.
Performance or an offer to perform on the one part is a condition
precedent to the right to insist upon a performance on the other
part."
35 Cal. 656.
And in
Englander v. Rogers, the same court held
that:
"The obligations of the parties to an agreement for the sale of
land are mutual and dependent, where one is to convey and the other
at the same time to pay the purchase money, and neither can put the
other in default, except by tendering a performance on his part,
unless the other party waives the tender or by his conduct renders
it unnecessary."
41 Cal. 420.
It is only upon the return and filing in the General Land Office
as stated above that any right to the land surveyed attaches to the
applicant, and until such filing, the state does not agree to part
with any interest in the lands surveyed, and the purchaser does not
acquire any.
Such was the decision of this Court when the case was before it
at the October term of 1891.
145 U. S. 145 U.S.
522,
145 U. S. 532.
"An applicant," we there said,
"under the laws of Texas for the purchase of a portion of its
unappropriated public lands could acquire no vested interest in the
land applied for -- that is, no legal title to it -- until the
purchase price was paid and the patent of the state was issued to
him. If the price was not paid within sixty days after the return
to the General Land Office of a map of the land desired and the
field notes of its survey, he forfeited all right to the land, and
was not thereafter allowed to purchase it."
We added, however,
"that he had the right to complete the purchase and secure a
patent
Page 162 U. S. 182
within the prescribed period after the map and field notes of
the survey were filed in the General Land Office,"
which is designated in the decisions of the supreme court of the
state as a vested right that could not be defeated by subsequent
legislation.
This reserved right, however, only applies where the map and
field notes of the survey have been previously filed in the General
Land Office. No such reserved right could be asserted in the
present case, for no such field notes of all the lands were
previously filed. The claim of Russ, the plaintiff below, was that
he had an assignable right on November 1, 1882, to eighteen hundred
and thirteen sections of land, for which he had made application in
October of that year. There are objections to recognizing that the
field notes of such alleged eighteen hundred and thirteen sections
were filed before the expiration of three months. They were of no
validity if not made on the ground, and it is not pretended that
the field notes were made by a survey on the ground, and it is not
shown that they were made, or could be made, in any other way.
Each of the eighteen hundred and thirteen sections was to be in
a tract of six hundred forty acres. It appears by the record that
the field notes of the survey purport to have been made between the
13th of October and the 3d of November, 1882, except sections one
to twenty-four. It is to be borne in mind that each section of six
hundred forty acres comprises a distance around it of four miles,
and the eighteen hundred and thirteen sections, leaving out the
twenty-four sections which are claimed to have been surveyed on the
9th of November, 1882, would embrace a circumference of seven
thousand one hundred fifty-six miles, and the survey of the
twenty-four sections would have embraced ninety-six miles
additional. No survey of land on the ground of that extent could
have been made during the time designated. Neither the twenty --
four sections, embracing ninety-six miles, could have been surveyed
in one day,-the 9th of November -- nor the seventeen hundred
eighty-nine remaining, embracing seven thousand one hundred and
fifty-six miles, in the twenty-one
Page 162 U. S. 183
days between the 13th of October and the 3d of November, 1892.
Therefore, if any surveys were returned in such sections, they must
have been made up from office documents, and not by actual survey
on the ground.
In
Bacon v. State, 2 Tex.Civ.App. 692, the Court of
Civil Appeals of Texas decided that under the Act of July 14, 1879,
as amended by Act of March 11, 1881, providing that any person
desiring to purchase any unappropriated land may do so by causing
the tract which said person desires to purchase "to be surveyed" by
the authorized public surveyor of the county in which the land is
situated, a survey not actually made in the field, but copied from
the field notes of a prior survey on file in the surveyor's office,
is not such a survey as is contemplated by the act of the
legislature, and that such a survey does not entitle the proposed
purchaser to a deed to the land.
The claim that the plaintiff below, Russ, had parted with
valuable property, for which he was entitled to a judgment
exceeding half a million of dollars from Count Telfener, for having
transferred to him his hopes of securing a million acres of land
from the state, for which he did not hold any promise or obligation
of the state, does not merit consideration. As a claim, it rests
upon no solid foundation.
It follows that, for the errors stated,
The judgment of the circuit court of appeals should be
reversed, and the judgment of the circuit court should also be
reversed, and the cause remanded with a direction to set aside the
verdict and grant a new trial, and it is so ordered.
