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On Motion for Rehearing.

Since our former opinion was delivered, the case of State of Texas v. Davidson, 132 S. W. 520, decided by the Court of Civil Appeals of the First District, has been published, which sustains the decision of this court. It is true it is held in that opinion that the provision of law permitting persons to reside off the land purchased from the state, for any period not exceeding six months, if the purpose be to educate children or to earn money to pay for the land, has been repealed by the law of 1909, upon which ruling it is unnecessary to express an opinion, still, without being controlled by that provision, the court held that an absence of more than six months during one year, while the purchaser was working with live stock and visiting, did not justify a forfeiture of his purchase for nonresidence. The purchaser in that case resided moré than 200 miles from the land at the time he contracted to purchase it from the state, and he spent more time off the land than on it, and the improvements were of the most temporary character. The court reviewed the case of Andrus v. Davis, 99 Tex. 303, 89 S. W. 772, and held it not to be in conflict with the ruling of the Court of Civil Appeals, because the purchaser in that case was shown to have acquired another residence, and for that rea*933son a forfeiture was held to have been justified. The court held: “It is a well-settled rule that the law does not favor forfeitures, and requires strict proof of all facts necessary to create a forfeiture.” A writ of error was refused.

Waiving any right that appellee may have had under the old statute to leave the land for the purposes therein designated, for 2½ months, after he had settled upon it, we are of the opinion that the facts of this case did not justify a forfeiture of the purchase. It is admitted that appellee settled on the land as required by law, that he did not leave the land with the intent to abandon it, but wrote to the Land Commissioner that he had, a few days before, left the land to attend the Agricultural and Mechanical College. It is agreed that it was his intention to return to the land, all the time he was attending the college, and on March 16, 1906, he returned to the land, improved it, and had ever since resided thereon. He made all the payments required and performed every other duty demanded by law in order to perfect his title. The land was awarded to appellant after appellee had in good faith resided on it for nearly three years. The forfeiture by the Land Commissioner was not justified by the law or the facts. The cases of Bustin v. Robinson and State v. Davidson, herein cited, fully sustain the position of this court.

The motion is overruled.

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