Fisher v. Brower
| Decision Date | 24 June 1902 |
| Docket Number | 19,612 |
| Citation | 64 N.E. 614,159 Ind. 139 |
| Parties | Fisher et al., Trustees, v. Brower et al |
| Court | Indiana Supreme Court |
From Marion Superior Court; J. M. Leathers, Judge.
Suit by Abraham G. Brower and others against Emanuel S. Fisher to quiet title. From a decree for plaintiffs, defendants appeal. Transferred from Appellate Court, under § 1337u Burns 1901.
Affirmed.
Pierre Gray and S. M. Richcreek, for appellants.
W. A Ketcham and F. E. Matson, for appellees.
In July, 1893, the lands described in the complaint were mortgaged to the State for a loan from the permanent endowment fund. The note and mortgage contained the power of sale authorized by statute. In February, 1897, the lands were sold by the county treasurer for the delinquent taxes of 1895 and 1896, and the usual certificate was issued to the purchaser. In 1895 the lands were also assessed for a sewer and in 1897 they were assessed for sprinkling. In April, 1898, upon default in the payment of interest, the Auditor of State, under authority of statute and the power of sale in the mortgage, and upon due publication, offered the lands for sale to recover the principal of the mortgage loan, with interest, damages, and costs. The lands were bid in by appellees, who were strangers to all other proceedings concerning the property. Upon payment of the amount bid, appellees received from the State a deed for the property. In January, 1899, appellant Fisher, trustee, purchased the tax certificate from the original owner, and in February, 1899, at the end of the two years after the tax sale, received from the county auditor a deed for the premises. In July, 1899, the appellant bond company purchased the sewer assessment against the property, and also, at a date unknown, but subsequent to 1897, purchased the sprinkling assessment against the property. Having learned that appellant Fisher, trustee, by virtue of his tax deed, and appellant bond company, by virtue of its sewer and sprinkling assessments, were each claiming to hold a lien upon the property, the appellees in April, 1900, brought against the appellants this suit to quiet title.
The complaint sets out in detail the above and other material facts. The separate demurrer of each of the two appellants to the complaint, for insufficiency of facts, was overruled, and, each refusing to plead further, the court rendered judgment against them for cost, and a decree quieting appellees' title to the property in question.
The principal question in the case is, whether a purchaser, other than the State, at a permanent endowment fund mortgage sale, takes the property free from tax and assessment liens incurred after the execution of, and during the time the land was under the mortgage.
I. As ancillary to the main question appellants urge that the permanent endowment fund is a private fund, and not entitled to the constitutional and statutory protection accorded to public school funds, and that with respect to this particular fund the State acts merely as a trustee in making and collecting loans. An inquiry into the origin of the State University, for the maintenance of which institution the permanent endowment fund is exclusively designed, reveals the unmistakable purpose of the people to make the university a part of our public school system. Article 9, § 2, of the Constitution of 1816 provided: "It shall be the duty of the General Assembly, as soon as circumstances will permit, to provide by law, for a general system of education, ascending in regular gradation from township schools to a state university, wherein tuition shall be gratis, and equally open to all."
In compliance with this mandate of the Constitution the legislature in 1820 established the State Seminary at Bloomington. Acts 1820, p. 82. In 1828 this institution was advanced to the dignity of Indiana College, an endowment fund established, its trustees required to report receipts, expenditures, etc., to the Governor, for submission to the General Assembly, and the constitution of the college declared to be unalterable by any law or ordinance of the trustees, "nor in any other manner, than by the legislature of this State." Acts 1828, p. 115. By an act of 1838 (Local Laws 1838, p. 294), the General Assembly conferred upon the institution the name of Indiana University, and the same body in 1842 adopted a joint resolution,--reciting in terms § 2 of article 9 of the Constitution of 1816 above quoted,--requiring the trustees of the Indiana University to report to the next legislative session, whether, in their opinion the resources of said university are sufficient to enable the legislature to pass a law making tuition gratis, in compliance with the constitutional mandate. Acts 1842, p. 174. In order that the special relation of the university to the State might be continued unquestioned, under the new Constitution of 1851, the General Assembly of 1852 enacted that "The institution established by an act entitled 'An act to establish a college in the State of Indiana,' approved January 28, 1828, is hereby recognized as the university of the State." 1 R. S. 1852, p. 504, 1 G. & H., p. 660. And again in 1867 the legislature asserted that it should be the pride of every citizen of the State to place the State University in the highest condition of usefulness and make it the crowning glory of our present great common school system. Acts 1867, p. 20.
The maintenance fund is in no smaller sense a state fund. It has its origin from the sale of certain lands of the State acquired by gift from the government for educational purposes. Acts 1828, p. 117. It has been augmented from time to time, as the needs of the university increased, by specific appropriations from the state treasury,--first in 1867 (§ 6159 Burns 1901); again in 1873 (§ 6160 Burns 1901); and by general taxation for twelve years beginning in 1883 (§ 6161 Burns 1901), and again in 1895 (Acts 1895, p. 171).
The university as well as its endowment has always been under the supervision of the State. Five out of its eight trustees are chosen by the state board of education. § 6060 Burns 1901. Its trustees are required to report to the State. § 6081 Burns 1901. The Governor shall annually cause 5,000 copies of the report to be printed, at the expense of the State, for distribution. § 6084 Burns 1901. The trustees are required to provide for special instruction in certain branches. §§ 6088, 6089 Burns 1901. The State Librarian shall supply books to its library. § 6092 Burns 1901. The State Geologist shall collect specimens of mineralogy and geology for its cabinet. § 6093 Burns 1901. The home of the fund is the state treasury, and prior to April, 1897, it was loaned and collected by the state officers (Acts 1852, §§ 6095-6107 Burns 1901), and the annual interest thereon applied to the expenses of the university, upon warrants drawn on the Treasurer of State by the Auditor of State upon requisitions of the trustees. § 6094 Burns 1901.
And as further evidence of the character of the fund, as construed and held by the people themselves, the legislature of 1897, with a prefatory declaration that "the people of the State are equally entitled to the use of said fund, and to its permanent protection," passed a law for the distribution of the fund to the several counties of the State, to be loaned and collected by the several county auditors, and the accruing interest annually reported and paid into the State treasury, at the time and in like manner as interest on the common school fund is paid; the second section of which act reads as follows: Acts 1897, p. 117, § 6116b et seq. Burns 1901.
We therefore conclude from the foregoing review of the subject that the Indiana University is an integral part of our free school system; that it was the special creation of the Constitution; that the protection and preservation of the funds belonging to it have been the special care of the General Assembly; and that its permanent endowment is in every material sense such a public educational fund as the Constitution declares "shall remain inviolate," and is perforce entitled to the same constitutional and statutory favoritism that is shown to other public educational funds. We are strengthened in this view by the manifest and uniform legislative purpose to treat the common school fund and the university fund as distinct, but as belonging to the same class.
With respect to the priority of the mortgage, the power of sale and the sale on published notice, the respective governing statutes are almost identical. Compare §§ 5807, 5814, 5820 Burns 1901, with 6100, 6096, 6109 Burns 1901; and it is interesting to note that the provisions just referred to in both these laws are in effect and almost identical in form with the corresponding provisions of the university fund law of 1843. Compare above sections with §§ 39, 43, 53 R. S. 1843, pp. 245, 246. It may therefore be said, so far as material to the decision of this case, that the principles of the university fund law of 1843, carried into subsequent legislation, rule in the same way the management of all the...
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