Smith v. Talbott

• Decision Date: 24 November 1858
• Citation: 11 Ind. 117
• Parties: Smith v. Talbott, Auditor of State
• Court: Indiana Supreme Court

11 Ind. 117

Smith v. Talbott, Auditor of State

Supreme Court of Indiana

November 24, 1858

From the Marion Circuit Court.

The judgment is reversed with costs. Cause remanded with instructions to issue the writ of mandate.

H O'Neal, J. W. Gordon, W. M. McCarty and G. Tanner, for appellant.

H. E Talbott in person and J. E. McDonald, Attorney General, for appellee.

OPINION

Perkins J.

Leander Smith filed in the Marion Circuit Court, an affidavit, as follows:

"Leander Smith swears that he is informed and believes that Hannah Devinney, February 22, A. D. 1833, at the county of Marion aforesaid, bought of the agent of state for the city of Indianapolis, lot number six, in block number thirty, in said city, for 25 dollars; that she agreed to pay said sum as follows: one-fourth, cash down; one-fourth, in one, one-fourth, in two, and one-fourth, in three years from the date of purchase; or in default thereof, or of any of said payments, to forfeit said lot, and any payments she might make thereon before such default. And the said Hannah then and there paid said agent the said sum of 6 dollars 25 cents, and received his certificate showing the purchase of said lot and the terms thereof. She also paid the second payment upon said lot, according to contract, on the 22d of February, 1834; and after the making of said second payment, the said Hannah sold said lot, and assigned her said certificate to one John Morrow, who, afterwards, on the 22d of February, 1835, made the third payment thereon: but the said Morrow failed to make said last payment according to contract and law, and the said lot, then and there, to-wit, on the 23d day of February, 1836, became, and was, forfeited to the said state of Indiana. And the said Smith further swears that he is informed and believes that upon the said failure of said Morrow to make said last payment, and the forfeiture thereof, said lot became, and thenceforward has remained, in the state of Indiana, subject to entry at minimum price, fixed upon the same by the proper officers of said state, prior to the sale thereof to said Hannah Devinney as aforesaid, which said minimum was 25 dollars, by the person first offering to pay said price for the same.

And the said Smith further swears that all the papers, books, plats and other documents, formerly kept by the agent of state for the city of Indianapolis, in reference to lots therein, have been, and were before the 10th day of July, duly transferred to the custody of the auditor of state, for the said state of Indiana, and still remain in his custody; and that he verily believes said auditor is now intrusted by law with all the powers and functions in regard to the property of the state of Indiana, in lots in the city of Indianapolis, formerly belonging to said agent of state for said city of Indianapolis; and that, acting upon this information and belief, he, the said Leander Smith, to-wit, on the 10th day of July, 1856, went before Hiram E. Talbott, auditor of state as aforesaid, in his office and regular place of transacting the business of said office, and then and there proposed and offered to enter and purchase said lot, at the minimum price thereof aforesaid; and there being, then and there, no other person desirous of purchasing said lot present, he, said Smith, did, then and there, insist upon his right to make said purchase and entry; and did, then and there, tender and offer to pay said auditor the sum of 25 dollars, in cash, for said lot, (which...