State ex rel. Hershey v. Clark
| Decision Date | 03 April 1894 |
| Citation | 58 N.W. 585,39 Neb. 899 |
| Parties | STATE EX REL. HERSHEY v. CLARK, COUNTY TREASURER. |
| Court | Nebraska Supreme Court |
1. Before a contract of purchase of school lands entered into with the state can be declared forfeited, because of a default in the payment of annual interest, notice to the delinquent purchaser of such proposed cancellation must first be given by the commissioner of public lands and buildings.
2. In case the purchaser is a resident of the state, and his address is known, such notice must be personally served upon him; but where he is a nonresident, or his address is unknown, the notice may be published in some newspaper published or of general circulation in the county where the land is located.
3. State v. Graham, 32 N. W. 142, 21 Neb. 329, and Richardson v. Doty, 41 N. W. 282, 25 Neb. 420, distinguished.
Original application, at the relation of John H. Hershey, for mandamus to John H. Clark, treasurer of Lincoln county. Heard on exceptions to the report of a referee. Judgment for relator.F. T. Ransom, for relator.
Geo. E. French, Darnell & Kirkpatrick, and Grimes & Wilcox, for respondent.
On the 3d day of February, 1893, the relator, John H. Hershey, applied to this court for a peremptory writ of mandamus to compel the respondent, John H. Clark, as county treasurer of Lincoln county, to receive from the relator the amount of money due the state on a school-land contract of purchase for the S. W. 1/4 of section 16, township 14, range 32 W. of the sixth P. M., entered into by the state with one C. S. Guthrie, and by mesne assignments now owned by the relator, and to issue to him a receipt for said money. The issues were formed by proper pleadings, whereupon the cause was referred to Hon. J. H. Broady, to take the testimony, and report the same to the court, with his findings of fact and conclusions of law. Subsequently, the referee made and returned to the court his findings, embracing 11 typewritten pages, exclusive of the testimony upon which the same was based. The testimony and findings of facts of the referee may be summarized as follows: On the 7th day of June, 1884, one C. S. Guthrie purchased of the state the land in controversy for the sum of $1,120, he paying down one-tenth of the principal, and the interest on the remainder up to January 1, 1885, amounting to $30.78. By the terms of the contract he also agreed to pay the balance of the purchase price on June 7, 1904, with $60.48 interest thereon on the 1st day of January of each year. On July 11, 1884, Guthrie, by written indorsement, bargained, sold, and assigned said contract and his interest in said land to Anna S. Guthrie, which assignment was entered of record in the office of the commissioner of public lands and buildings on June 22, 1885. On the 14th day of April, 1887, the said Anna S. Guthrie duly sold, assigned, and conveyed her interest in said contract and the said land to the relator; and on the 18th day of the same month said assignment was duly recorded in the office of the commissioner of public lands and buildings. Immediately upon receiving said assignment, relator took actual possession of the land in dispute, and ever since has held actual, open, and notorious possession thereof, under claim of right under said contract, and has actually resided with his family, during said time, within a mile of said land. The relator has paid to the state on said contract, as assignee thereof, all payments up to January 1, 1891, but, through inadvertence, has made no payment thereon since then. The relator did not intend to abandon, but expected to comply with, said contract. On the 1st day of January, 1892, the commissioner of public lands and buildings prepared and sent to the respondent, for service upon relator, a written notice, to the effect that the interest due on said contract was delinquent for more than a year, and, unless all payments due thereon were paid within six months from the date of the service of the notice, such contract would be declared forfeited. George E. Prosser, the respondent's deputy, usually had charge of the notices of this character, and said deputy was at that time, and for a long time prior thereto had been, well acquainted with the relator, and knew that he was a resident of Lincoln county. The respondent, with slight diligence, could easily have ascertained the residence of relator, and made personal service of said notice upon him. No effort was made either to ascertain the residence of relator or to make personal service upon him, but the notice was returned to the commissioner of public lands and buildings without service, and without statement of the residence of the relator unknown. Afterwards, in June, 1892, the said commissioner caused to be published in the North Platte Telegraph, a newspaper of general circulation in Lincoln county, for three successive weeks, a notice to the effect that the interest upon said contract was delinquent, and, if said delinquency was not paid within 90 days, said contract would be declared forfeited. The publication of said notice was the only notice given that the rights of the relator under said contract of sale would be forfeited. On the 14th day of September, 1892, the board of educational lands and funds, by resolution unanimously adopted by the board, declared said contract canceled, and notice of said cancellation was given by the commissioner of public lands and buildings on October 15, 22, and 29, and November 5 and 12, 1892, in the said North Platte Telegraph. Said notice further provided that, if said contract was not reinstated by the payment of the delinquent interest, said lands would be offered for lease, by the county treasurer, on the 21st day of November, 1892. On the date last aforesaid, a lease in proper...
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