12 Neb. 526 | Neb. | 1882
The plaintiff in error, who was plaintiff in the court below, presented his petition alleging that the said state ■officers constitute the board of commissioners for the sale, leasing, and general management of all lands and funds set apart for educational purposes and for the investment of school funds, created 'by the constitution ■and laws of the state of Nebraska; that on or before the 10th day of September, 1879, the lands hereinafter ■described belonged to the state of Nebraska, and were a part of what were known as its school lands, and were subject to lease and sale as such, as by law provided; that such lands are described as follows, to-wit: The southwest quarter of the northwest quarter, and the northwest quarter of the southwest quarter, and the southwest ■quarter of the southwest quarter of section thirty-six, in township fifteen north of range 12 east, in Douglas ■county, Nebraska, being 120 acres of land, known in said laws as the class designated prairie lands; that on or about September 10th, 1879, he leased said lands of and from said state in the manner provided by law; that prior to the 27th day of December, 1879, and about the 15th day of December, 1879, as such lessee he applied in writing to the county treasurer of such county, to have .such land appraised for the purpose of sale, whereupon, upon the payment of six dollars by said lessee, said treasurer, together with the county clerk and county judge of said county, appointed appraisers, who appraised said lands at their just and true value, and returned their appraisement under oath as by law required; that within ten days after said appraisement, the said “treasurer forwarded the same, together with the written .application aforesaid, to the office of the said commissioners at or about said time, to-wit: December 27th,
To this petition the defendant Gutheart filed a general demurrer, which was sustained by the district court, and the plaintiff failing to plead further a general judgment was entered for the defendant, Gutheart, and dismissing the action. The said plaintiff brings the cause to this court on error. ■
The plaintiff in error, in his brief, claims under the provisions of law as found in the General Statutes, secs. 17 and 18, pp. 194 and 195, and suggests that if he has no case under these provisions he has none at all.
The case of the plaintiff, in effect, admits that the defendant, Gutheart, and those under whom he claims, were at one time in the rightful and exclusive possession of the lands in controversy; that he is now in the actual possession, but by virtue of the proceedings set out in the petition he, the plaintiff, has in the mean’time become the
Sec. 18. In case of the violation of any of the covenants in the contract furnished by the lessee or purchaser by the nonpayment of money at the time specified in the ■contract, by the commission of waste upon the land, by removal of any improvements thereupon from the land without the consent of the commissioners, the county treasurer shall notify the lessee or purchaser of his or her delinquency and require the removal thereof by the fulfillment of the covenant of the bond and contract, and if such delinquency is not removed within thirty days, the lessee or purchaser shall yield possession of the premises to the state of Nebraska, and the property shall thereupon immediately revert to, and be revested in, .the state; •and the contract shall be dissolved, and the rights of the lessee or purchaser, both legal and equitable therein, be absolutely determined, and the prosecuting attorney of the district shall, immediately after receiving such notice from the county treasurer of the violation of his or her ■covenants, by the lessee or purchaser of any school land, proceed against the person in possession of the premises involved, in the name of the people of the state of Nebraska for forcible detainer, and obtain restitution of the premises in the same manner and with the like effect as in case of tenants holding over. In case of the violation of contracts by the lessee or purchaser of school lands, the county treasurer shall accompany his notice of such delinquency to the prosecuting attorney with attested ■copies of all papers which may prove the covenants and the violation thereof.
It was evidently the intention of the legislature, in passing the law containing these provisions, to hold the purchasers and lessees of the school lands to the strict performance of the terms of their obligations to the state. And while by the terms of the law all delinquents were limit
We do not think it within the intention or policy of the law that the state should in any case give a second lease or contract for any portion of the school lands while the original lessee, or his lawful assignee, is in possession, claiming to be so rightfully. Such a policy would tend to litigation and in many instances to social disorder. To avoid this the law has provided a cheap and expeditious method for dispossessing its delinquent lessees and purchasers, and thus clearing the field for new applicants, whom it can let into immediate and undisputed possession.
It appearing from the petition that the defendant, Gutheart, was in the possession of the school lands during the whole of the proceedings on the part of the plaintiff, under which he claims, and still is, we think that the judgment of the district court is right, and it is accordingly affirmed.
Judgment Affirmed.