43 Ark. 180 | Ark. | 1884
In the first of these eases, both between the same parties, it was alleged that one John M. Peck had, in 1873, purchased from the State 440 acres of swamplands and had paid the price therof $330, to the Commissioner of Immigration and State Lands, who thereupon gave the purchaser a certificate of purchase, acknowledging the receipt of the purchase money in Arkansas Levee Bonds; that Peck had in 1877 transferred said certificate to the petitioner, who had produced the same to the Commissioner and demanded a patent deed for the lands, but his request had been denied. And the prayer was .that the defendant .might be compelled by Mandamus to issue the patent. This petition was dismissed on demurrer.
The theory of the petition is, that the land, never having been paid for, is still vacant public land; that the officer had no authority to sell upon a credit, nor did he undertake to do so, and that the total failure of consideration affects the validity of the entry and avoids the whole transaction.
But to this reasoning we cannot assent. The State has already sold this land once, and there is an outstanding certificate of purchase in the hands of some one. True, there has been no valid payment. It is the same as if counterfeit money had been received. But there are only two ways in which a contract can be rescinded. One is by mutual consent; and the other by decree of a competent court.
The rights of the State and of purchasers who have'paid for lands in levee bonds are these: Where the contract has been executed, that is to say, where a deed has been made and the lands have passed into the hands of innocent third parties who have paid value for it, the state is estopped by its own grant to resort to the land, (Fletcher v. Peck, 6 Cranch 87), but may maintain an action against its grantee for the purchase price. But where the land, though patented, is in the hands of the original vendee or of those claiming under him, except by purchase for a valuable consideration without notice that the entry money is unpaid; and in all cases where the contract is still executory, no deed having been made but the purchaser or his assigns holds a certificate of entry, the State may treat the supposed payment as a nullity and may subject the land to the purchase debt.
And no tender of the bonds, either before suit brought, or with the bill, will be required, but a statement of the circumstances under which they were received will suffice. Young v. Cole. 3 Bing. N. C. 724, (32 E. C. L. R.); Gompotz v. Bartlett, 2 E. and R. 849. (75 E. C. L. R.); Gurney v. Wormersly, 4 E. and B. 133. (82 E. C. L. R.).
The judgment in both cases is affirmed.