State ex rel. Miller v. Graham, Co. Treas

• Decision Date: 01 March 1887
• Citation: 21 Neb. 329,32 N.W. 142
• Parties: STATE EX REL. MILLER v. GRAHAM, CO. TREAS.
• Court: Nebraska Supreme Court

21 Neb. 329

32 N.W. 142

STATE EX REL. MILLER

v.GRAHAM, CO. TREAS.

Supreme Court of Nebraska.

March 1, 1887.

Syllabus by the Court.

On the facts proved, held, that a preponderance of the testimony showed that the relator had been duly notified of the default in the payment of the interest on his school lands before the same were declared forfeited to the state and resold.

While the statute requires notice to be given to the purchaser of school lands of his default in paying the interest thereon before said lands are declared forfeited, yet it is the duty of such purchaser to pay the interest due thereon annually; and where he has failed for many years to perform his duty in that regard, and the lands in the mean time have been declared forfeited and resold, it will be presumed that proper notice was given before forfeiture was declared, upon the principle that official acts of public officers which presuppose the existence of other acts to make them legally operative are presumptive proof of the latter.

If a party knowingly, though it be done passively by looking on, suffer another to purchase and expend money on land under an erroneous opinion of title, without making known his own claim, he will not afterwards be permitted to exercise his legal rights against such person.

Mandamus.

Marquett, Deweese & Hall, for relator.

Harwood, Ames & Kelly, for respondent.

MAXWELL, C. J.

This is an application for a writ of mandamus to issue out of this court, commanding Robert B. Graham, county treasurer of Lancaster county, Nebraska, or his successor in office, to receive from the relator the several sums of money that may be due from the relator to the respondent on four certain contracts of purchase entered into by the relator with the state of Nebraska, and commanding the said county treasurer to give receipt therefor, showing that final payment of the balance of the principal and interest has been paid on the contracts of purchase. It is alleged in the plaintiff's petition that on the fifteenth day of June, 1868, the relator purchased from the state of Nebraska lot 14, being a part of the N. W. 1/4 of section 36, township 10, range 6, for $100 per acre, and that he paid one-tenth cash payment as required by law, and gave his note, as required by law of Nebraska, for the residue of purchase money, to-wit, $450. The contract of purchase entered into by the state of Nebraska with the relator is as follows:

“Whereas, in pursuance and by virtue of an act of the legislative assembly in such case provided, and after due public notice, the state of Nebraska, on the day of the date hereof, has struck off at public sale to J. G. Miller, as purchaser thereof, the following described tract of land situated in the northwest quarter of section 36, town 10, range 6 east, in Lancaster county, Nebraska, described as lot number 28, according to the survey and recorded plat of said section 36, containing five acres more or less, at and for the aggregate price of $420; and whereas, the said J. G. Miller has this day paid to the treasurer of Lancaster county, for the state of Nebraska, the sum of $42, being the one-tenth part of said purchase money aforesaid, and, to secure the payment of the other part of said purchase money, has executed and delivered his certain promissory note, indorsed by P. Peck and M. M. Culver, by which he has promised to pay to the order of the state of Nebraska, on the first day of January, A. D. 1880, the sum of $378, with interest thereon at the rate of ten per cent. per annum, from date thereof, said interest to be promptly paid annually in advance on the first day of January in each year until said note shall be fully paid. Now, therefore, I, J. G. Miller, the said purchaser aforesaid, of Cass county and state of Nebraska, in consideration of the premises aforesaid, and of the extension of time of payment of the aforementioned purchase money, do hereby, for myself, my heirs, executors, and administrators, covenant, promise, and agree to and with the state of Nebraska that so long as said purchase money, or any part thereof, secured by the above-mentioned promissory note, remains unpaid, I shall not nor will not commit, nor permit to be committed, in or upon the above-mentioned and described premises, tracts, or parcels of lands, any waste or spoils whatever, in timber or otherwise; and I do hereby, for myself, my heirs, executors, and administrators, further covenant, promise, and agree to and with said state of Nebraska that, upon the non-payment in advance by me, my heirs, executors, and administrators, of the annual interest, or any part thereof, aforesaid, at the time when the same shall become due and payable, or upon the non-payment of said principal sum of $378 in said note mentioned, on the first day of January, A. D. 1880, according to the tenor and effect of said promissory note above mentioned, or upon the commission of any waste or spoil whatever by me, my heirs, executors, or administrators, in or upon said premises so struck off to him as purchaser as aforesaid, then and in that case all the said tract or parcel of land above mentioned and described, and all improvements thereon, shall be surrendered and absolutely revert to the state of Nebraska.

In witness whereof, I have hereunto set my hand this eleventh day of June, A. D. 1868.

J. G. MILLER.

In presence of S. B. LINDERMAN.”

--That the relator paid the interest on the balance of said purchase money' for which he gave his note for the years 1869, 1870, 1871, 1872, 1873, 1874, up to the first of January, 1875; that on the sixteenth day of June, 1876, the said lot No. 14 was again sold, and the county treasurer pretended to cancel the contract of purchase which had formerly been made by the state of Nebraska with this relator; that the relator had no notice of any kind of the attempted or pretended cancellation, and that your relator did not know, until after the cancellation had taken place, that his contract had been or was to be canceled; that he was never notified by any one, in any manner, that his interest on the purchase money of the above-described tract of land was due and unpaid.

It is further alleged that the county treasurer and county commissioner, without any authority of law, pretended to cancel said contract of purchase, and proceeded and did resell the said land to other and different parties, which sale was made, on the sixteenth of June, 1876, for the sum of $350; that the said lots were sold at public sale, without having given notice by publication as required by law, and said sale was null and void, and made without any authority of law, and in contravention of the statutes. The relator further alleges in his petition that, ever since the said pretended sale and cancellation of this contract, the county treasurer failed and refused to accept from the relator the said payment due on the balance of purchase money, which fell due annually. The relator has always been ready and willing to make said payment under his contract.

It is further alleged that on the fifth day of May, 1885, relator tendered to Robert Graham, county treasurer of Lancaster county, Nebraska, the sum of $991.08, being the balance of purchase money due the state of Nebraska, together with interest, interest on interest, then due from relator to the state of Nebraska, as the balance of the purchase money on said lot No. 14; that said Robert Graham's acknowledgment of the said tender, and the refusal of the same, is in words and figures as follows, to-wit:

“I hereby acknowledge the tender of the above sums of money as the correct amounts, and being the balance due the state of Nebraska as the purchase money due on said several tracts of land purchased by J. G. Miller from the state of Nebraska, and refuse to receive the same, and give Miller final receipt for the same. This refusal, on my part, is made under the instructions of the board of public lands and buildings of the state of Nebraska.

+-----------------------------------------+
                ¦[Signed]¦R. B. GRAHAM, County Treasurer.”¦
                +-----------------------------------------+
                

It is further alleged by the relator that he is ready and willing, and at all times had been ready and willing, to pay to the state of Nebraska the balance of money due on the contract, together with interest thereon, and has been ready and willing to perform all things necessary to carry out and fulfill the said contract made with the state of Nebraska, and now brings the said sums of money into court, to-wit, the sum of $991.08, and offers the same in payment of the balance of purchase money due on said note and contract from him to the state of Nebraska. It is further alleged that, unless Robert Graham, the county treasurer, is commanded and required to receive the said money, to-wit, the sum of $991.08, from your relator, and give him a final receipt therefor, showing that this is the balance of the purchase money, your petitioner will be remediless in the premises; and that the petitioner is wholly remediless in the premises except by the interposition of this court by the writ of mandamus to compel the said county treasurer to receive said sum of money on said contract of purchase, in payment of the balance of the purchase money due on said land contract.

These are the allegations constituting relator's first cause of action. In regard to lot No. 14, the petition for mandamus contains four causes of action. The second cause of action is the same as the first, heretofore set out, which involves the title of lot 28, being part of the N. W. 1/4 of section 36, township 10, range 6. This lot was purchased from the state of Nebraska at the same time, and on the same terms, as lot 14, for $84 per acre. The interest payment for the same years was made on this lot as on the former lot, and a tender of the balance of purchase money was made to Robert Graham at the same time the tender was made for lot 14, and was refused...