82 Kan. 675 | Kan. | 1910
Lead Opinion
The opinion of the court was delivered by
This action was commenced in this court by T. J. Roll and Oscar Roll for a writ of mandamus to compel the state auditor to make the proper certificate to enable them to obtain a patent for certain school land which they have purchased and paid for, as prescribed by law. It has been made to appear that E. P. Williams purchased the land in question on October 13, 1884. In the following November he assigned the certificate to Gust Carlander. The assignment was duly reported to and recorded by the county clerk of Pratt county, where the land is located. Car-lander held the land for ten years, during which time he regularly paid the interest on the deferred payments. He assigned the certificate to the McPherson National Bank, and it assigned to Charles H. Williams, who assigned to the petitioners herein. The petitioners paid the balance of the purchase money in full, and the county clerk duly indorsed upon the certificate that the purchase price had been fully paid and the holders of the certificate were entitled to a patent to the land. The petitioners presented the certificate so indorsed
It appears that steps were taken to forfeit the sale to Williams, and upon the assumption that the forfeiture was valid and in compliance with the law the land was again offered for sale. The petitioners were in possession of the land, purchased at the second sale, and received a certificate of sale therefor in 1903. In 1907 Charles H. Williams, then the owner of the certificate under the first sale, commenced an action of ejectment in the federal court against these petitioners, who were then claiming the land under the second sale. In that action it was claimed by the plaintiff that the forfeiture of the first sale was invalid. The petitioners were informed by counsel that their title under the second sale was defective, and were advised to make terms with Williams and secure the rights held by him. They thereupon, for the purpose of securing peace and security in the possession of the land and improvements, obtained an assignment from Williams and his wife of all their right, title and interest in the land. The auditor informed the petitioners that they would be compelled to pay up under the last sale before they could obtain a patent to the land.
We think the forfeiture proceedings were invalid, and therefore the petitioners have a right to a patent under the first sale, having paid the purchase price in full. The county clerk did not issue a notice of forfeiture to the owner whose name appeared of record, but such notice was issued to E. P. Williams, who was known to have parted with his right to the land and had no further interest in it. It appeared from the record that Gust Carlander was the owner. No effort was made to give notice to him, or to his heirs, or to
The first sale must be upheld, and the petitioners are entitled to a patent. The auditor ought to comply with their request in the premises. (Hickert v. Van Doren, 76 Kan. 674.)
The writ is allowed.
Dissenting Opinion
(dissenting) : The notice of forfeiture was directed to Williams, the purchaser, and to all others concerned. Williams had assigned the certificate and the assignment was recorded before the notice was issued, but Carlander, -to whom it was assigned, had also assigned it to the bank and had died before the issuance of the notice. The idle ceremony of directing a notice to a dead man was not required by the statute, nor for any good reason, and certainly it should not have been directed to his heirs, for they had no interest in the land. The owner of the certificate at that time was a bank of another county, and Williams could not be found within the county. Roll, the tenant of the nonresident owner, was in possession of the land. In , these circumstances service of the notice was properly
The forfeiture seems to have been complete, and the auditor’s decision right.