5 Port. 169 | Ala. | 1837
The declaration in this cause, contains two counts in assumpsit, one a general indebitatus, and the other, special, on a contract therein set out. A* demurrer was interposed in the Court below, on which judgment was rendered for the defendant, and this judgment is now sought to be reversed.
The indebitatus count, is for one hundred and sixty acres of land, alleged to have been sold by the plaintiffs to the defendants, and presents the general question, whether they can hold lands, in any way or under any circumstances, whatever; for if they are enabled to hold lands, it would seem difficult to resist the conclusion, that they were au-thorised to sell them; on the other hand, it seems clear, if the plaintiffs are in no case authorised to be the owners of lands, they cannot maintain as-sumpsit for the sale of that which could not belong to them.
By the several acts in relation to schools and school lands,
If the case was one of first impression, we should feel no hesitation in deciding that a special corporation, so constituted, had no capacity to take or hold lands, and consequently, no power to sell and convey, but we are warranted by authority in the positions which we lay down.
Chancellor Kent recognizes the rule, that statute corporations cannot take and hold real estate, for purposes foreign to their institution.
Some difficulty arises in the consideration of this eoúnt, because the statutes we have before referred to, authorise the school commissioners, when the consent of the inhabitants of the township shall be obtained, to sell the sixteenth section; but this is
Another view which can be taken of the statute, entirely obviates any difficulty on this subject. The school commissioners have no authority to dispose of the sixteenth section, unless a certain price be obtained; and not even then, can a certificate of purchase be given by them, unless notes payable in one, two, three and four years, bearing interest at the rate of six per cent, per annum, with two securities be given. — (See Sec. 35. Title, schools and school lands.
This provision is evidently intended for security of the inhabitants of the township, and the act would be effectually evaded and rendered inoperative, if the plaintiffs could sue for the purchase money of the lands sold — no security would be given, and the time of credit might be prolonged by a suit.
For these reasons, we are of opinion, that the general indebitatus count, cannot be supported.
The special count, presents questions which are novel, and in some respects, difficult of solution.
From this it appears, that the inhabitants of the township, for which the plaintiffs are school commissioners, had determined in the manner prescribed by law, to give their consent to a sale of the sixteenth section, and the statutory proceedings
It alleges, “that the conditions of sale, were published aloud in the presence and hearing of all who had assembled at the sale.” These conditions were those proscribed by the act authorising the sale, and “that any person or persons, bidding off any lot or lots of the land, and failing to comply with the said terms of sale, by giving their notes, with approved security, the lot or lots, would be re-sold, and the first purchasers held responsible.”
It then alleges that the defendant became the purchaser of lots, numbered .six and eight, for the first of which he bid ten dollars and one cent per acre, and for the last, he bid seven dollars per acre, at which prices they were struck down to him.
The minimum price of these lots, was six dollars for the first, and six dollars and fifty cents, for the'last.
The count then alleges that the defendant wholly refused and neglected to comply with the conditions of the sale, and did not nor would give his notes, toith approved security, as provided by law. It then states that a re-sale took place, after a lapse of more than three months, on the same conditions, at which sale these two lots were sold; the first for three dollars per acre, and the last, for two dollars and seventy-five cents per acre, of which the defendant had notice.
The count then concludes with a super se as-sumpsit, for the difference between the two sales—
It is urged against this count, that the plaintiffs are not authorised by any law, to maintain any suit for any breach of contract, relative to the sale of the sixteenth section, because the authority is given to another corporation to receive the money. But we think this does not follow as a consequence — ■ if it did any person could at pleasure, become a purchaser and violate his contract with impunity, or the sale of the section might be delayed or entirely prevented, by one disposed to retard the action of the commissioners.
The general object of all the statutes, in relation to schools and school lands, seems to be to enable the school commissioners, to act for the' township, in all matters relating to the sixteenth section; and we are satisfied they have the same right to pursue any remedy in relation to the same, which the inhabitants of the township, could pursue, except in such cases only, where an action is’ contemplated by other persons.
We have already determined, that a general in-debitatus count could not be sustained, because the commissioners had no authority to receive the money for the sale, as if was to be paid to others, under the act of the legislature, and because the township must have the security required,before any title can pass by the sale. These reasons would be equally decisive, when applied to any action at law on the contract, however special
But it is unnecessary to determine whether the same principle applies to sales of land in general. So far as this case is concerned, we entertain no doubt but the commissioners were authorised to re-sell the land. Indeed the act of the legislature makes it their duty so to do. The sale was not executed, without the security required was given, and therefore might be considered inoperative, under the act refered to, after a refusal by defendant, to give his notes: and the minimum not having been realised, a re-sale became necessary.
It is also contended, that by annexing a condition of re-sale, the whole contract became void, and
We are aware, that Mr. Justice Livingston, in the case of Webster & Ford vs Hoban,
We are not alone in this opinion-—all the English
We think it sufficient to say, in answer to the position, as taken, that the condition is one which is legal, and being made solely for the security and protection of the seller, may be waived by him, without impairing any of his rights, or it may be insisted on when made, in relation to real estate, and the first purchaser held responsible for any deficit .on a re-sale.
If in the case under consideration, the re-sale had produced the minimum price affixed to the several lots, we should determine that the defendant was liable to a recovery in the suit as brought; but as the contract is laid, the liability of the defendant is charged to arise from an illegal' act, or rather void act of the plaintiffs. They had no authority to sell for a less sum than the .minimum, and yet this sale is the foundation of the super se assumpsit, laid in -the declaration.
A re-sale was not necessary to fix the liability of the defendant for a breach of contract, and the action in another form could have been maintained without showing a re-sale: it might be one mode of ascertaining the amount of damages, perhaps the best, but certainly not the only way of ascertaining the same. '
It was said at bar, that this declaration in the special count might conform to this view of ihe case, by striking out all in relation to the subsequent sale, and the super se assumpsit, If this was done, it would
The declaration cannot be supported, and the judgment must be affirmed.
Aik. Dig. 370.
2 Kent's Com. 229.
8 Jhons. R. 425 3 Peck 239.
Aik. Dig, 378.
5 S. & Raws 19.
4 East 147.
7 Cranch 899.
Sugden on Vendors 34, and cases cited.