¶1 dissenting.—I feel unable to concur in the final conclusion reached by the majority. It seems clear, as the , majority correctly conclude, that under the Act of 1901 the indorsement of forfeiture by the Commissioner of the General Land Office on the application and obligation of appellant Slaughter affords no legal evidence of the invalidity of the Slaughter title purchased by appellee, and I am not prepared to join the majority in the further conclusion that the subsequent award to Heffner constitutes such presump-' live evidence of the illegality of the Slaughter title as warrants the affirmance of the judgment on that ground. Forfeitures are not favored in the law, and as against appellant, who was the defendant below and not a party to the ex parte forfeiture proceedings, the burden of proof was upon appellee. To say that this burden was overcome and the forfeiture shown by the mere fact of the subsequent award, seems to me to violate the principle of the cases of Smithers v. Lowrance and Howard v. McKenzie discussed by the majority. The presumption of the existence of the facts authorizing the award to Heffner is not the only presumption in this case. It must be presumed that the award to Slaughter was authorized, and that he was then the lawful occupant of the land, and that such occupancy or state of things continued as such occupancy usually continues unless the contrary is shown. It was Slaughter’s pecuniary interest as a purchaser of school lands to pay the annual dues to the State, and his duty as well as his interest to continue his occupancy, and the common experience of mankind authorizes the presumption that he did both to avoid loss, so that, as it appears to me, the presumption indulged by the majority is used to overcome other presumptions of equal force, thus contravening the oases sought to be distinguished by the majority, as well as other authorities that might be cited.
56 Tex. Civ. App. 169
121 S.W 173
Slaughter v. Cooper
Decided May 22, 1909
Court of Appeals of Texas · decided 1909-05-22
<p>1. —Public Lands—Inchoate Sale—Cases Criticized and Distinguished.</p> <p>When the State through her authorized officer has made an award of public lands to one authorized to purchase, thereafter the title to the land has so far passed out of the State as to authorize its sale by the awardee thereby creating between himself and his purchaser the relation of vendor and vendee; and when possession accompanies such transfer the purchaser could not thereafter successfully plead a total failure of consideration upon the forfeiture of his vendor’s title. Slaughter v. Cooper, 107 S. W., 897, criticized. Lamb v. James, 87 Texas, 485; Raynor Cattle Co. v. Bedford, 91 Texas, 642, and Williams v. Finley, 99 Texas, 468, distinguished.</p> <p>2. —Same—Forfeiture for Failure to Occupy—Evidence.</p> <p>Under the provisions of section 3, title 87, of the Acts of 1901, no duty is imposed upon the Commissioner of the General Land Office to declare or evidence in any way a forfeiture of public land for failure of the purchaser to reside upon and improve the same; any action therefore by him can not be used as evidence against the purchaser. Therefore in a suit involving the title of, a purchaser to public land under said Act it was error to admit in evidence the endorsement of the Commissioner upon the application and obligation of said purchaser, as follows: “Forfeited for failure to reside upon and improve the land as required by law.”</p> <p>3. —Same—Subsequent Award—Presumption—Evidence—Cases Distinguished.</p> <p>A subsequent award by the Commissioner of the Land Office of the same land to a subsequent applicant therefor, affords presumptive evidence that the first sale had been forfeited before the second was made. Smithers v. Lowrance, 100 Texas, 77, and Howard v. McKenzie, 54 Texas, 171, distinguished. Chief Justice Conner, dissenting.</p>
Good law ✅— No negative treatment on recordhow we know
Decided 1909-05-22
How this case has been cited
Cited by 9 later decisions — most recently January 1940
9 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
View the full empirical analysis of this case →