Statement of the Case. Prior to this time, however, and as early as February 28 of the same year, Rhomberg had made application for the same land in the name of different persons; had allowed these applications to lapse by the non-payment of the twentieth of their value within ninety days; and on the 29th and 30th of May had made other applications in the name of other persons, and had also allowed these to lapse by non-payment; and, again, on the 28th of August had made other applications in still other names, and in this way had kept the lands out of the market, until November 25, when he made the final applications above stated. Before any further action was taken upon the last applications, and on January 2, 1883, one F. B. Jacobs, and on January 8 one Malinda Fisher, filed their applications with the surveyor for the purchase of the same lands. The surveyor recorded these applications, endorsed upon them a memorandum of such record, and returned them duly endorsed to the applicant. On January 9 these applications of Jacobs were delivered to the State Treasurer and first payments were made on each of the sections applied for in his name. The applications of Malinda Fisher were also delivered to the State Treasurer, the date of which does not exactly appear, but the first payments were also made upon these applications before January 18. The treasurer received the applications and first payments of Jacobs and Fisher, made the proper entries in his books, issued his receipts for the money, and forwarded the receipts and applications to the Commissioner of the General Land Office. The Commissioner received and filed the applications and receipts, made the proper entries upon his books, and delivered his certificates in lieu of said receipts, all within less than ninety days from the original applications of November 25. On January 18, a few days after the applications of Jacobs and Fisher, but less than ninety days after his last application of November 25, Rhomberg presented his applications duly endorsed to the State Treasurer, and tendered to him the first payments required by the act to be made upon each of the Statement of the Case. eleven sections. The treasurer refused to receive such applications, or to accept the money, giving as his reason for such refusal that previous payments had been made upon these sections in the names of Jacobs and Fisher. Rhomberg did not abandon these applications, but continued to press them and made repeated tenders to the State Treasurer, who, after several refusals, finally, on February 17, 1885, received the applications, accepted the first payments, made all the entries required by law regarding the same, issued his receipts for the payments, and forwarded the applications with the receipts to the Commissioner of the General Land Office. The Commissioner of the General Land Office ruled at first that first payments could not be received from two dif ferent applicants for the same sections, but finally withdrew this ruling and accepted the tender made by Rhomberg on February 17, 1885. The title of Maggie L. Rhomberg and Frank Robinson became subsequently vested by intermediate conveyances in the defendant Becker, who, in May and June, 1886, made full and final payments to the State Treasurer of the purchase money, and letters patent were subsequently, and in the years 1886 and 1887, issued to him by the proper officers of the State of Texas for the whole eleven sections. On March 12, 1883, Jacobs and Fisher conveyed the sections for which they had applied to the Monroe Cattle Company, which enclosed the land in controversy in its pastures, used and occupied the same and paid taxes thereon, but made no further effort to perfect its claim to the land, nor made any further payments of purchase money, either of principal or of interest, although, under the acts of 1878 and 1881, payments of interest were required to be made on or before the first day of March of each year upon all purchases of school lands, the appraised value of which had not been fully paid. On February 14, 1887, the defendant Becker began an action of ejectment against the Monroe Cattle Company, and on February 1, 1888, the latter filed this bill to restrain Becker from further prosecuting his action at law, to remove the cloud upon its title to the land, and for the cancellation of Opinion of the Court. the patents granted to the defendant. Upon a hearing on the pleadings and proofs, the court entered a decree dismissing the bill, and the plaintiff appealed to this court. Mr. A. H. Garland and Mr. H. J. May for appellant. Mr. William D. Williams for appellee. MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court. This case involves the construction of the statutes of Texas with regard to the purchase of school lands, and depends upon the question whether, during the ninety days allowed to the proposed purchaser to make his first payment, it is competent for the surveyor to receive another application for the same. land, or rather to permit a person, who had theretofore filed applications for two parties, to treat such applications as withdrawn and abandoned, and to make other applications in the name of different persons within the ninety days. No one can examine critically the provisions of the statutes in question without noticing the solicitude of the legislature to prevent a monopoly of these lands by capitalists, or their withdrawal from the market by fictitious applications. To secure a measurably equal allotment to each purchaser it was provided: 1. That no one should purchase more than three sections within five miles of the centre of any county or upon any water front, nor more than seven sections in any case. 2. That he should make his first payment within ninety days of his application. 3. That applications should be made in the real name of the actual purchaser. 4. That no one should renew his application nor file on the same land more than once in twelve months. 5. That no one should renew his file in the name of another. In this case there were circumstances calculated to arouse uspicion in the conduct of both parties. Upon the one hand, Opinion of the Court. Rhomberg made application on February 28, 1882, for the purchase of these eleven sections in the names of F. Becker, S. L. Rhomberg and Conrad Becker. These applications were suffered to lapse, and on the ninetieth day thereafter, namely, May 29, he made application for seven sections of the same lands in the name of J. M. Beechem, and on the following day for four sections in the name of M. B. Thompson. These applications were also suffered to lapse, and ninety-two days thereafter, namely, August 28, he applied for the same sections, except section 66, in the name of Margaretta Rhomberg and F. M. Robinson. He also seems to have intended that these should lapse, but as the ninetieth day, November 26, fell on Sunday, he wrote his attorneys on the 22d: "The old file expires on Sunday next. You will, therefore, probably have to refile on Saturday." A new application was, therefore, made on Saturday, November 25, in the name of Maggie L. Rhomberg and Frank Robinson. In this connection, the bill charged that Rhomberg made these applications in the names of other persons, who did not intend to be actual purchasers, for his own use and benefit, in order to acquire more than he was permitted to purchase directly from the State; that he further determined, in violation of the provision against renewing files in the names of other persons, to take advantage of the ninety-day limit, to allow the applications to be forfeited, and to make new applications in the names of other persons, not intending to be actual purchasers, and thus to hold the lands for a longer period than was permitted by the law; and, for the time being, to avoid the payment of any part of the purchase money and of the taxes, which would be assessed after the first payments had been made. An answer under oath being required, the defendant denied the fraudulent purposes and designs charged against Rhomberg in the bill, and, in his testimony, Rhomberg swore that Margaretta and Maggie L. Rhomberg were different persons, as were also F. M. Robinson and Frank Robinson, and that they were each of them bona fide living persons, three of them living in Iowa, and one in Chicago; that Margaretta Rhomberg was his sister-in-law; that he was only distantly related Opinion of the Court. to the husband of Maggie L. Rhomberg, and that he was not related to either of the Robinsons; that he was not interested in any of the purchases himself; that he considered investments in Texas school lands good, and made his views known to many of his relatives and friends, and advised them to buy; that, as he was making his headquarters in Texas, many of them confided their interests to him; that he looked after them without demanding or expecting any pay for his services; and that the persons for whom he acted furnished the money to pay for the lands. He admitted making several applications to purchase the lands in question, and that these were abandoned without making the first payments; that the different applications were not renewals, but were for different persons; and that they were not intended to keep other persons from purchasing the lands. In short, that the applications were made bona fide for the benefit of the applicants, and that he had no personal interest in any of them. As there was no testimony contradictory of this, Rhomberg being the only witness examined on the subject the charges of fraud must be regarded as not sustained, if, indeed, the answer be not sufficient for that purpose without other testimony. Hughes v. Blake, 6 Wheat. 453; Vigel v. Hopp, 104 U. S. 441; Beals v. Illinois, Missouri & Texas Railroad, 133 U. S. 290. Upon the other hand, the answer charges that one H. C. Jacobs was county surveyor, and J. L. Fisher was county judge of Shackleford County; that they were partners as real estate agents, transacting business under the name of Jacobs & Fisher; that the F. B. Jacobs, who made application in January, was a brother of II. C. Jacobs, and postmaster at Albany, the county seat of Shackleford County, and that Malinda Fisher, who applied for the remainder of the lands, was the wife of one John A. Fisher, deputy surveyor of the county, and brother of the other member of the firm of Jacobs & Fisher; that they entered into a conspiracy to levy a contribution upon all the purchasers of school lands in the county, and to control the same for their own benefit; that the firm of Jacobs & Fisher wrote letters to Rhomberg solic iting his business, promising to sell his lands at an advance, |