Hile v. Troupe

Decision Date04 October 1906
Docket Number14,525
Citation109 N.W. 218,77 Neb. 199
PartiesLORENZO L. HILE, APPELLANT, v. M. N. TROUPE, COUNTY TREASURER, ET AL., APPELLEES
CourtNebraska Supreme Court

APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Reversed.

REVERSED.

H. M Sinclair, for appellant.

Norris Brown, Attorney General, and William T. Thompson, contra.

AMES C. EPPERSON, C., concurs. OLDHAM, C., not sitting.

OPINION

AMES, C.

In December, 1883, one Reed became a lessee of a certain tract of school land of this state pursuant to a statute then in force, and his lease became by purchase and mesne assignment the property of the plaintiff herein in November, 1889. At that time no default of the covenants of the contract had been committed by the assignors of the plaintiff, and he at once entered into, and has since continued in, possession of the lands and has made lasting and valuable improvements thereon, claiming a right thereto as owner of the interest created by the lease and as assignee of the instrument. Continuously, also, from that time until the year 1904, he paid the annual instalments of rent reserved by the lease, which sums were received and accounted for, without objection, by the proper official authorities, as belonging to the public educational funds of the state. The plaintiff became delinquent of an instalment of rent stipulated by the contract to be paid for the year 1904, and thereupon the lands were, by authority of the board of educational lands and funds, advertised for sale or lease, pursuant to the statute, as having been forfeited. Notice of a declaration of such forfeiture by the board having been served upon the plaintiff, he at once, and before the time specified in the advertisement for offering the lands, tendered to the treasurer of the county in which the lands lie the full amount of all delinquencies, interest, penalties and costs that had accursed under the lease, as a redemption from such forfeiture. But the treasurer, acting under the advice and instruction of the state board, refused the tender and declined to accept the money offered, for the sole expressed reason that the time for such redemption had expired. The board thereupon proceeded to offer said lands at public auction, and pursuant to that procedure executed a lease of them to one Max Schlund, who by virtue of his lease claims a right to the possession of them and of the improvements situated thereon. This is an action upon a petition setting forth the foregoing facts, and against the state board, the county treasurer and the lessee, Schlund, to obtain a judicial decree for redemption. A general demurrer to the petition was sustained, and the suit dismissed. The plaintiff appeals.

The statute in force at the time the lease in suit was executed enacted a procedure for the declaration of forfeitures in cases of delinquencies in payments of rents, but with the following proviso: "Provided, the owner of any contract of sale or lease so forfeited may redeem the same by paying all delinquencies and costs at any time before such land is again sold or leased." Laws 1883, ch. 74, sec 20. This proviso remained in force until 1903, when it was amended by substituting for the portion thereof printed in italics the words "at any time before such land is advertised to be leased at public auction" (laws 1903, ch. 100, sec. 17), and the statute as theretofore existing was then repealed. But the matter with which the legislature was dealing was not the exercise of governmental functions merely, but one having reference to the rights and obligations of the state as a party to certain contracts, and it is a well-settled principle that a state is as powerless, under the operation of section 10, article I of the constitution of the United States, to impair by law its own contractual obligations as it is to affect in like manner the contracts of natural persons. Davis v. Gray, 83 U.S. 203, 21 L.Ed. 447; Hall v. Wisconsin, 103 U.S. 5, 26 L.Ed. 302; People v. Stephens, 71 N.Y. 527. And it is a principle much older than the constitution of the United States "that the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This principle embaces alike those which affect its validity, construction, discharge, and enforcement." Von Hoffman v. City of Quincy, 71 U.S. 535, 550, 18 L.Ed. 403. This language is authoritative and binding, not only upon this court, but upon every branch and functionary of the state government. And it is said by the same high authority: "Any deviation from its terms, by postponing or accelerating the period of performance which it prescribes, imposing conditions not expressed in the contract, or dispensing with the performance of those which are, * * * impairs its obligations." Green v. Biddle, 21 U.S. 1, 8 Wheat. 1, 5 L.Ed. 547, *84. It is clear therefore that the right of redemption created by the above quoted proviso in the statute in force when the lease in suit was made became incorporated with and a part of that instrument. The proviso had nothing to do, as the attorney general contends that it did, with mere procedure or with the remedy by which the state was and is entitled to declare and enforce a forfeiture and a resale or release of the land; but it is...

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