Todd v. Board of Educational Lands and Funds of Neb., 33002

• Decision Date: 10 July 1951
• Docket Number: No. 33002,33002
• Citation: 154 Neb. 606,48 N.W.2d 706
• Parties: TODD et al. v. BOARD OF EDUCATIONAL LANDS AND FUNDS OF NEBRASKA et al.
• Court: Nebraska Supreme Court

Page 706

48 N.W.2d 706

154 Neb. 606

TODD et al. v. BOARD OF EDUCATIONAL LANDS AND FUNDS OF NEBRASKA et al.

No. 33002.

Supreme Court of Nebraska.

July 10, 1951.

Syllabus by the Court

1. A stipulation concerning matters in litigation may only be presented to and considered by this court on appeal when identified, offered in evidence, and preserved in a bill of exceptions.

2. In deciding the correctness of a ruling on a demurrer to a pleading, only allegations of fact in the pleading to which it is directed may be considered.

3. The statute relating to recording of an assignment of a school land lease, at the time the lease involved herein became effective, made an assignment ineligible for record if at the time the assignment was tendered for record the assignor was in default of payment of some amount required by the lease to be paid.

4. If the assignor was not in default of any payment required by the lease when the assignment was tendered for record, it was entitled to be recorded.

5. The statute was essentially a recording act, and its purpose was to furnish information and notice of the identity of the owner of the lease and was for the benefit and convenience of the state.

6. The rights of a lessee of school land are determined by the law as it was at the time the lease was made and the lessee may not be deprived of any substantial right resulting from the lease in his favor by subsequent legislation.

7. The state by entering into a contract abandons its attributes of sovereignty and binds itself, to the extent of its power to contract, substantially as an individual does who becomes a party to a contract.

8. In the absence of statutory or contractual restrictions, a lease for a definite term may generally be assigned by the lessee without the consent of the lessor.

9. The right of an owner to dispose of property is substantial and valuable. It is incident to and inheres in the constitutional right to acquire and own title to every species of property recognized by law. It may not be impaired or defeated by legislation after the right is vested.

10. Sections 72-240 and 72-240.01, R.R.S. 1943, contravene Article VII, section 9, of the Constitution of Nebraska, and are invalid.

Henry W. Curtis, Imperial, for appellants.

Clarence S. Beck, Atty. Gen., and Robert A. Nelson, Asst. Atty. Gen., for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

This is an action for a declaratory judgment in which appellants seek to have their rights determined and enforced relative to a school land lease made to Jerry Todd and by him sold and assigned to C.C. Maxted, and his rights because of his application to the Board of Educational Lands and Funds for a renewal of the lease to him. A general demurrer of appellees to the petition of appellants was sustained. They elected not to plead further, and a judgment of dismissal resulted.

The substance of the petition is that: Jerry Todd was the owner of a school land lease of a section of land in Kimball County, the term of which expired on December 31, 1949. In October 1948, he contracted to sell and assign it to C. C. Maxted for $12,000.00. Todd agreed to make an assignment of the lease to Maxted and to join in an application to the Board of Educational Lands and Funds for an approval by it of the assignment. On or about September 14, 1949, Todd executed an assignment of the lease to Maxted. He, by endorsement thereon, accepted it, and Todd made an application to the board to assign the lease. Maxted executed an application to the board for approval of the assignment and an application for a renewal of the lease to him. These instruments were on forms furnished by the board and were delivered to the secretary of the board on September 16, 1949. The board at its meeting on November 14, 1949, ordered that unless Todd made payment to it of $6,000, one-half of the consideration for the assignment of the lease, not later than December 1, 1949, the lease would be advertised for sale at public auction, as provided by law. Appellants allege Legislative Bill 490, appearing as Laws 1949, chapter 212, and especially section 8 thereof, is not applicable to the lease and assignment described, and if intended to apply thereto, is retrospective in operation, invalid, and unconstitutional because it violates federal and state constitutional mandates and prohibitions. The ultimate relief sought was a declaration of the rights and obligations of the parties and a decree compelling the board to approve the assignment of the lease and to issue to C. C. Maxted a renewal lease of the land for a new term commencing January 1, 1950.

Counsel, during the argument and in the printed discussion of the case, referred to a stipulation of the parties. A purported copy of it is exhibited by the transcript. Its appearance therein is without authority of law and it may not be noticed on this appeal. The procedure for presenting such an instrument to this court for its consideration is by identification, introduction in evidence, and preservation thereof in a bill of exceptions. State Ins. Co. of Des Moines v. Buckstaff Bros. Mfg. Co., 47 Neb. 1, 66 N.W. 27; Younie v. Specht, 99 Neb. 621, 157 N.W. 336; Prokop v. Mlady, 136 Neb. 644, 287 N.W. 55. This appeal presents for determination the correctness of the ruling of the district court on the demurrer to the petition and the judgment of dismissal of the case. In passing on a demurrer, only the allegations of fact in the pleading to which it is directed may be considered. The court must accept the facts as asserted therein and may not notice extrinsic matters in determining whether the pleading states a cause of action or defense. The court may not look beyond the pleading against which the demurrer is directed. Koehn v. Union Fire Ins. Co., 152 Neb. 254, 40 N.W.2d 874.

The pertinent provision concerning an assignment of a school land lease existing at the time the lease involved in this case was made was that: 'No assignment of a school land lease * * * shall be valid until recorded in the office of the commissioner of public lands and buildings and shall not be eligible to such record if there are any payments of interest or rental due at the time the assignment is offered for record.' Laws 1923, c. 60, § 1, p. 183, appearing as § 72-220, Comp.St. 1929. The Commissioner of Public Lands and Buildings was eliminated as a constitutional executive officer of the state by constitutional amendment effective December 15, 1936. Swanson v. State, 132 Neb. 82, 271 N.W. 264. The office of Commissioner of Public Lands and Buildings was abolished, and all the rights, powers, and duties thereof, except as custodian of the Nebraska State Capital, were transferred and delegated to the Board of Educationsl Lands and Funds by act of the Legislature approved May 13, 1937. Laws 1937, c. 160, p. 624.

The single fact specified therein affecting the eligibility of the assignment of a lease for record was existing default in the payment of some amount required by the lease at the time the assignment was tendered for record. If there was then a default, an assignment could not be lawfully recorded, and if there was not, there was no discretion vested in anyone to refuse to record an assignment when tendered for record. This provision was essentially a recording act, the purpose of which was to give information and notice as to the identity of the owner of the lease. It was for the protection and convenience of the state. In State ex rel. Johnson v. Commercial State Bank, 142 Neb. 752, 7 N.W.2d 654, 655, it was decided that: 'Assignments of school-land leases are permitted, but in order to be effective against the state the state must be informed of them in the manner which the statute prescribes. Langan v. Binfield, 49 Neb. 857, 69 N.W. 123; Hile v. Troupe, 77 Neb. 199, 109 N.W. 218. As between the parties, therefore, the assignment of the school-land lease to Smith, after the payment of the loan, was valid, although, in the event of default, the state could enforce the remedies contained in the statute without regard to such assignment.'

The quoted provision of the statute existed from 1899 to 1947 without change. Laws 1899, c. 69, § 18, p. 310, appearing as § 72-241, R.S. 1943. There was during that period no...