Brooke v. Eastman
| Decision Date | 07 October 1903 |
| Citation | 96 N.W. 699,17 S.D. 339 |
| Parties | BROOKE v. EASTMAN, Commissioner. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Brookings County; Julian Bennett, Judge.
Proceedings by William M. Brooke against David Eastman, as commissioner of school lands, to compel the issuance of patents to certain school lands to plaintiff. From a judgment for plaintiff defendant appeals. Affirmed.
John L Pyle, Atty. Gen., and Alva E. Taylor, Asst. Atty. Gen., for appellant. Philo Hall and W. H. Roddle, for respondent.
It appears from the agreed statement of facts upon which this cause was submitted to the circuit court that one Iver L Opsal was the highest bidder for certain tracts of school land; that he deposited with the county treasurer the first payment on each tract; that he received "contracts of sale" in the form prescribed by the board of school and public lands, agreeably to the provisions of chapter 136, p 296, Laws 1890 (); that neither tract was occupied as a homestead, nor exempt as such from sale on execution; that the land was sold at sheriff's sales under and by virtue of executions duly issued upon personal judgments regularly obtained against Opsal; that, no redemption having been made, sheriff's deeds were regularly issued to the purchasers, who subsequently conveyed to the plaintiff; that Opsal wholly abandoned the land after the execution sales, and has not offered or attempted to perform any of the conditions of his contract with the state since making the first payment; that the plaintiff and his grantors promptly paid to the treasurer of the county wherein the land is situated each subsequent payment required by the "contract of sale" and all taxes assessed against the land; and that the plaintiff demanded a patent from the state prior to the commencement of this action, which was refused. Any defect of parties defendant is expressly waived, and defendant admits "that, if Opsal had such an interest in the land as could be levied upon and sold under execution levied upon his right, title, and interest in the land, the execution and all other proceedings herein were regular, and his interest and title passed to plaintiff under said sheriff's deeds, and he would now be entitled to patents therefor; but defendant contends that Opsal did not have such an interest in the real estate as could be levied upon and sold, and that, in order to entitle relator to patents, the contracts themselves held by Opsal should have been assigned, and that the proceedings herein shown do not amount to such assignment." The question thus clearly defined has not been heretofore considered by this court. In view of the consequences likely to flow from its determination, a careful examination of the law relating to execution sales and the disposal of school and public lands is demanded. "All goods, chattels moneys and other property, both real and personal, or any interest therein of the judgment debtor, not exempt by law, *** are liable to execution." Rev. Code Civ. Proc. 1903, § 336. Upon a sale of real property on execution "the purchaser is substituted to, and acquires all the right, title, interest and claim of the judgment debtor thereto." Id. § 373. The sheriff's deed vests in the purchaser, or his assigns, "as good and as perfect title in the premises therein mentioned and described as was vested in the debtor at or after the time when such real property became liable to the satisfaction of the judgment." Id. § 384. If, therefore, Opsal had any interest in the land in controversy, such interest was acquired by the plaintiff. Our state Constitution contains the following, among other, provisions relating to the disposal of school and public lands: Const. art. 8, §§ 5, 6. Substantially, if not identically, the same language was employed by the Legislature in establishing and providing regulations for the department of school and public lands. Laws 1890, p. 296, c. 136. All sales are required to be at public auction to the highest bidder, and conducted through the office of the commissioner of school and public lands. Whenever a bid is accepted, the purchaser must at once deposit with the county treasurer the amount of the first payment of the price named, together with the amount of the interest for the fiscal year on the deferred payment, or, if the sale be for cash, he must deposit the full amount of the price named, and in either case take the treasurer's receipt for the money deposited, a copy of which receipt shall be retained by the treasurer. The purchaser shall exhibit such receipt to the county auditor, who shall thereupon make a complete report of the case to the commissioner, who shall, if the land is to be paid for in installments, cause to be prepared a "contract of sale" in duplicate according to the form prescribed by the board of school and public lands, and submit the same to the Governor for his approval. If approved, one copy of such contract shall be filed in the commissioner's office and another forwarded to the county auditor to be delivered to the purchaser after the expiration of 60 days from the date of sale. Rev. Pol. Code 1901, §§ 375-377. The only statutory provisions of which we are aware, having direct reference to the effect of a purchaser's failure to perform his obligations under one of these contracts and to the remedy of the state in such a case, are as follows: ...
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