[162 U.S. 170, 171] 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 ap rt 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 [162 U.S. 170, 172] whom application was made by responsible parties to survey the lands designated in such application within 3 months from the date thereof, and within 60 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 60 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 50 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 640 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 320 acres or less, and three- fourths of 1 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 50 cents per acre within the time prescribed in section 5 of the act,-that is, within 60 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, [162 U.S. 170, 173] George W. Russ, a citizen of Texas, alleged that some time 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 1,813 sections of land of 640 acres each, being, in the aggregate, 1,160,320 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 1st of November, 1882, he was about to proceed to have the lands surveyed into tracts of 640 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 ade 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 25 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 5 cents per acre. It was for an alleged breach of this contract that the action of Russ, the plaintiff below, v. Telfener was instituted. [162 U.S. 170, 174] Andrew Wesley Kent, for plaintiff in error.
Clarence H. Miller and Joseph Wheeler, for defendant in error.
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, 17 S. W. 727, 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:
In Campbell v. Wade, 132 U.S. 34 , 10 Sup. Ct. 9, 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 [162 U.S. 170, 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 60 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 any one 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 1,813 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,-woul 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 98 sections, embracing 62,720 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 1,813 tracts, amounting to more than 1,000,000 acres of [162 U.S. 170, 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 50 cents per acre was only made on 25 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 50 cents per acre, within the time prescribed in section 5 of the act,-which was within 60 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 25 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 25 cents an acre, which, not being recognized, he brought an action against Telfener [162 U.S. 170, 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, Tex., 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. 8 C. C. A. 585, 60 Fed. 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 640 acres in one tract, and in this case the plaintiff claimed, and the court of appeals sustained his claim, that he had acquired a [162 U.S. 170, 178] right, pursuant to the proceedings taken under the statute, to purchase 1, 160,320 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 98 sections of the lands, embracing over 62,720 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 98 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 9 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 50 cents per acre within the time prescribed in section 5 of this act,-that is, within 60 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 [162 U.S. 170, 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 recoed shows the fact to be that out of the 1,813 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 60 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 sald 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 groun , 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, 1,160,320 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 [162 U.S. 170, 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 v. Hagner, 1 Pet. 465; Hill v. Grisby, 35 Cal. 656; and Englander v. Rogers, 41 Cal. 421.
In Bank v. Hagner, 1 Pet. 454, 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 wish to compel the other to fullfill 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 [162 U.S. 170, 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. Grigsby 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 E glander 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 pur 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. 522, 532 , 12 S. Sup. Ct. 930. '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, [162 U.S. 170, 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 1,813 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 1,813 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 1,813 sections was to be in a tract of 640 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 1 to 24. It is to be borne in mind that each section of 640 acres comprises a distance around it of 4 miles, and the 1,813 sections, leaving out the 24 sections which are claimed to have been surveyed on the 9th of November, 1882, would embrace a circumference of 7,156 miles, and the survey of the 24 sections would have embraced 96 miles additional. No survey of land on the ground, of that extent, could have been made during the time designated. Neither the 24 sections, embracing 96 miles, could have been surveyed in one day,-the 9th of November,-nor the 1,789 remaining, embracing 7,156 miles, in the 21 [162 U.S. 170, 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, 21 S. W. 149, 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 ield 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.
[ Footnote 1 ] For opinion on rehearing, see 16 Sup. Ct. 1017.