40 Iowa 460 | Iowa | 1875
The contract was made'June 5,1862, and thereby the plaintiff stipulated and agreed to devote to the defendant all its swamp lands and all its demands upon the United States for indemnity script. The defendant, in consideration thereof, stipulated and agreed to erect for plaintiff one thousand dollars worth of any public improvement for which said swamp land might legally be devoted, and which the supervisors anight deem most needed by the county, and for which they should furnish specifications within one year, — the work to be done within two years; that said defendant should take the said lands and claims subject to all the provisions and conditions of the acts of Congress, and would release the state and county from all liabilities to reclaim the lands, and would reclaim the same at its own expense; that said defendant would sell the lands to actual settlers, and insert a clause in every deed requiring the grantee to make actual settlement within a time to be fixed, and would introduce into the county as actual settlers within two years from October following that date, families embracing from fifty to one hundred and fifty persons; that the defendant would use as much of the script and indemnity to acquire lands within the county of Audubon, for its use, as possible; that the defendant would be at all future expense in procuring and pei’fecting the title to said lands, and would also pay and reina burse the county all sums expended in acquiring title; that time should be of the essence of this contract, and a failure by the defendant to make the improvement and introduce the actual settlers shall forfeit all sums paid and all claims for improvements made up to the breach. It was also agreed that as soon as the improvement was made and the settlers introduced, the county would convey the land, and, if necessary for actual settlement, it would convey such parcels from time to time as requested, upon being secured; that the right to the script, indemnity, etc., should be conveyed to the defendant at once, or upon
At a special election, held June 21, 1862, the contract was ratified — the vote standing thirty-one for, and nine against. And at the general election held in October, 1862, it was re-submitted to a vote of the people of the county, and was again ratified by a vote of seventy for, and three against; at the same election the vote for clerk of the district court stood forty-three for one candidate and thirty-seven for the other— a total vote of eighty.
When the contract was made, the ciaim of the county for swamp lands had been investigated by the general government, upon proof furnished by the countj^, and rejected, except as to 2056.92 acres. Soon thereafter the defendant entered upon the work of securing a reversal of the order rejecting thé claims, and of taking further' proof. The defendant was likewise interested in the swamp land claims of many other counties, and after the expenditure of much of time, effort and money, a re-hearing was secured, a reversal of the order rejecting the claims of Audubon and, other counties was obtained and a rule established, whereby the claims to swamp land, indemnity, etc., were allowed. The whole claim of Audubon county was for 10576 acres of swamp land; of this the claim to 1564 acres was rejected finally; 2096.92 were certified to the state and conveyed to the county; 3045 acres had been sold by the government for cash, and 3871 acres had been located with bounty warrants. For the lands which the government had sold for cash, there was allowed the county, in cash, the sum of $3723.49; and for that located with warrants, there was allowed the county indemnity scrip for 3612 acres, of which 357.64 acres only were located in Audubon county, and these lands passed to the grantee of the county, and for which the county, and not the defendant, received pay. The evidence tends to show, and very satisfactorily proves, that the defendant paid to and for the plaintiff* in
On January 7, 1867, the board of supervisors of Audubon county, at a regular meeting, after reciting the contract between the plaintiff and the defendant as hereinbefore set out, and adopting a resolution that a conveyance be made, did execute a conveyance for 5600 acres of the land, “ in pursuance of said agreement in writing, and in consideration of the sum of two thousand two hundred and seventy-one dollars to the said party of the first part paid by said company.” And afterwards, and on January 8, 1868, a like conveyance for 276.74 acres was made.
The evidence tends to show that the defendant did not erect any improvement for the county, but, in lieu thereof, paid money and county warrants to the plaintiff. There is nothing to show that any plans or specifications for any work or improvement were ever furnished by the plaintiff to the defendant. It is not shown when or how many actual settlers were introduced into the county by the defendant. But it does appear that the defendant had sold to settlers over two thousand acres of the lands in controversy, and a part of them had been paid for in full and conveyed to such settlers, and the remainder had been only partly paid for and not yet conveyed.
It is further shown that Audubon county has levied and collected taxes on the lands in said county in controversy in this suit, for the years 1867 to 1872, both inclusive; that the defendant has paid taxes on said lands, during that time, $1453.15, and that parties purchasing the lands of the defendant have generally paid the taxes on the lands after their respective purchases, and the amount paid by them is not included in the amount above stated; the taxes paid by the defendant on the lands in Audubon county'for 1872 amount to $324.05; that of all the taxes paid by defendant of the lands in that county, $487.46 have been paid on lands claimed by the railroad.
To the first part of the objection it is, perhaps, a sufficient answer, that it does not appear that Audubon county was, at that time, unorganized, and hence not within the terms of the law. As to the second part, of reason, for the objection, the answer is, that by a subsequent act, approved March 28, 1858, (see Rev. of 1860, Sec. 986.) it was enacted, “ that it shall be competent and lawful'for the counties owning swamp or overflowed lands, to devote the same or the proceeds thereof, either in whole or in part, to the erection of public buildings for the purpose of education, the building of bridges, roads,” etc., etc., provided the proposition to so devote them shall he submitted, at some general or special election, to the people of the county. The next section, (987) provides for making the contracts and conveyances for carrying out such purposes. It appears to us that the provisions of this later statute are independent of the other, and that the regulation of the former act, as to price, does not apply to cases arising under the later statute; and furthermore, it appears to us that the contract and conveyances in controversy were made under this later act, and are not invalid, for the reasons here claimed, as above stated.
II. It is next claimed that the contract and conveyances are invalid, because, by the very terms of the contract itself
III. The counsel for the appellee further insists that the contract is void for uncertainty, because the particular ■improvement to be erected was not specified. But since the right to make the plans and specifications was left to plaintiff, whereby the improvement could be made certain, the case is very clearly within the rule id cerium est quod certum reddi potest:
IV. Again it is urged that the contract was illegal in part, for that the county had no authority to devote its swamp
V. It is further claimed that the consideration paid by the defendant was inadequate, and for this reason the couveyances
• YI. But there are affirmative facts in the case, which must, under our former decisions, defeat the plaintiff’s action,
- And, second, it also appears, and without contradiction, that the plaintiff has regularly assessed these lands in contro-6 estoppel- versy to the defendant, and collected taxes thereon taxation. regularly for eight years. These facts have been held by this court to work an estoppel upon the county. The Iowa Railroad Land Co. v. Story County, 36 Iowa, 48; Adams County v. The B. & M. R. R. Co., 39 Iowa, 507.
The plaintiff’s petition should have been dismissed absolutely.
Reveksed.