27 Wis. 119 | Wis. | 1870
The turning point in this case, and fatal objection to the plaintiff’s title, as it appears to us, is the want of the written application required by law to be produced to the secretary of state by every purchaser at private sale of any school or university lands. R. S. ch. 28, § 35. This is the first step in procuring such title, and the foundation of it, wherever the rights of third parties intervene. It is indispensable to its validity, as has more than once been decided by this court. State v. Janssen, 2 Wis. 423; Mariner v. Gray, 4 Wis. 380. The proof is very clear and positive that no application in writing by the plaintiff ever came to the hands of the secretary, or to the proper office, according to the mode in which the business was transacted, until after the defendant had made and presented his written application, and entered and paid for the land in due form of law. It is needless to dwell upon the testimony to this point, as it is too clear and indisputable to admit of any reasonable doubt. The learned counsel for the plaintiff does not question it, except upon the ground that the application may have been mislaid or lost, and the proper entry upon the books accidentally omitted. This is a very unsatisfactory explanation, and, con
And the effect of this testimony is not encountered or overcome by the presumption in favor of the correctness of official action, as argued by counsel. In the absence of all proof to the contrary, the correctness of the action of the. commissioners in cancelling the entry of the defendant and allowing that of the plaintiff, may well be presumed. On the other hand, if previous application had been duly made by the plaintiff, accompanied by the requisite payment of purchase money, the presumption is equally strong that it would have been shown by proper entries in the books; and so, too, is the presumption that the application itself .would have been found in the proper place, subject of course to the accident of being occasionally lost or mislaid. The presumption, therefore, affords no aid to the plaintiff; and, besides, it is to be resorted to only where the proofs are doubtful, or in the absence of proof. The question must be decided upon the evidence, as it appears without the jaresumption. The truth seems obvious that no application by the plaintiff was presented to the secretary of state until long after the land was entered by the defendant. The application forwarded by Yail, as he testifies, on the 16th of May, to the state treasurer, was no doubt retained by the treasurer or by his “ deposit clerk ” until the plaintiff came to Madison shortly before the 19th of August, when the order was made by the commissioners setting aside the sale made to the defendant.
And this view is in harmony with the entire testimony. The money of Mr. Vail, the plaintiff’s agent to enter the land, deposited with Mr. Hastings, at that
This question as to the power of the commissioners to vacate sales and set aside or annul certificates of entry, depends upon the true meaning and construction of sec. 121 of said chapter 28, which reads as follows : “ In case of the sale of any school or university lands made by mistake, or not in accordance with law, or obtained by fraud, such sale shall be void; and no certificate of purchase issued thereon shall be of any effect; but the holder of any such certificate shall be required to surrender the same to the commissioners, who shall thereupon refund the amount paid for the land described in such certificate.”
It is urged that this statute confers judicial powers upon the commissioners, without benefit of appeal or review in the courts, and that their action in declaring the sale void, is final. It is to be observed, with respect to the language, that it does not expressly confer upon the commissioners any power or authority to hear and determine the causes for which it is declared the sale shall be void. It is merely enacted that for certain causes, if made by mistake, or not in accordance
And so we must hold in this case, that the order of the commissioners vacating the sale to the defendant is subject to be reviewed under the answer of the defendant, which is in the nature of a cross bill or equitable action, instituted by him to enforce his title or claim in equity to the land. And this jurisdiction of the court being established, the conclusion favorable to the title or claim of the defendant follows from what has been previously said. There was neither fraud, mistake, nor a non-compliance with law in the sale, and the action of the commissioners was unauthorized. The court below should have so found upon the trial of the equitable issue, and should have directed a conveyance by the plaintiff to the defendant, upon payment to him by the latter of the purchase money and the interest, together with such sums as may have been paid by the plaintiff for taxes, or otherwise lawfully expended, with interest on the' same. This will make the plaintiff whole, and restore to the defendant that of which he was unlawfully deprived by the order of the commissioners made at the instance of the plaintiff.
There are some other facts in the case, but they
On the whole, we are of opinion that the judgments appealed from, both that upon the equitable issue, which was first tried, and that upon the issue at law, must be reversed, and the cause remanded with directions to enter judgment in favor of the defendant for the relief demanded in his supplemental answer, the sums expended by the plaintiff, and which the defendant offers to pay, being first ascertained in accordance with the rules above stated.
By the Court. — So ordered.