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cancel appellee's contract, would, under the circumstances, have to be accompanied by a return or offer to return to appellee the purchase price paid.
The Commissioner decided there should be no cancelation. Appellant, not a party to the state's case initiated by the said order to show cause why the contract to purchase should not be canceled, is not in a position, in any event, to urge upon this court a judgment directing such cancelation. We said in Hart v. Walker, 41 N. M. 1, 52 P. 2d 123:
"If leases were obtained by fraud and are avoidable by reason of false affidavits and appraisements in appellee's application, it is not a matter to be settled in this suit, as appellants have no claim on the land; but that is a matter between the state and the appellee. Ample provision is made by law to test the question of fraud by special proceeding before the Commissioner of Public Lands, but not by appellants. Se. 132-167 Comp. St. 1929."
What we there said seems to be conclusive upon the question here. The Commissioner, at the instigation of the appellant Company, started an independent proceeding on behalf of the state, and, under the provisions of the last above quoted statute, for the cancelation of the Dansburg contract to purchase. This was heard simultaneously with appellant's contest before the Commissioner. Sec. 132-162 N. M. Stat. Ann. 1929 Comp. governs contests. Appellant was not, of course, a party to the proceeding to cancel and the state is not a party to this appeal. Had the Commissioner, in the state's proceeding, canceled and offered to return the purchase price, and an appeal from that action had been taken, the question of correctness of the Commissioner's act would have then been before us. But such is not the case. Appellant, therefore, finds itself in the position that is cannot, in its contest, urge that appellee's contract should have been canceled for fraud or mistake. "That is a matter between the state and the appellee." Hart v. Walker, supra. And, it cannot her question the refusal of the Commissioner to find that fraud existed and his failure to