| Wis. | Jun 15, 1856
By ■the Court,
We are very clearly of the- opinion that a peremptory writ, of mandamus must be awarded in this ease. On the 13th of November, 1851, when the assignor of •the relator purchased of the commissioners of the school lands, the land mentioned in the relation, the following provisions of •chapter 24 of the Revised Statutes were in full force and operation: ,
Section 15. “ In case of the non-payment of either principal or interest when due, according to the terms of the certificate of •sale, such certificate shall become void from the time of such failure, and the purchaser or purchasers shall forfeit all right and interest in the land described in such certificate, and the commissioners may ta-ke immediate possession thereof’ and resell the same as hereinafter provided.”
Section 16. w At any time before a resale of such land, the payment of the sum due, with interest and all cost's occasioned 'by the delay, together with five per cent, damages on the whole sum owing for such land, shall prevent such resale and revive the original contract.”
Section 17. “ If on a resale of such land, the same shall produce more than sufficient to pay the sum owing therefor, with interest and costs, and five per cent, damages, on the amount'of purchase money unpaid, the residue, when collected, shall be paid over to the former purchaser, or his legal representatives.”
Section 27. 11 All school and university lands which shall be forfeited by the non-payment of either principal or interest, before the same shall be subject to private entry, shall be re-offered
There can be no doubt but these express provisions of the statute, at the time the contract of sale between the purchaser and state was made, entered into, and became a part of such contract, and no subsequent law could be enacted which could change the conditions or impair the obligations imposed by them. Green vs. Biddle, 8 Wheat. 1; Bronson vs. Kinzie, 1 How. 311; McCracken vs. Hayward, 2 id. 608 ; Butler vs. Palmer, 1 Hill, 325. The purchaser or his assignee had the right, under the 16th section just cited, to revive the original contract at any time before a resale of the land, by paying the sum due with interest, and all costs occasioned by the delay, and five per cent, damages upon the whole sum due; and by the 27th section, forfeited school lands were not subject to private entry until they had been re-offered for sale at public auction.
Such were the conditions of the contract entered into between Peaselee, the assignor of the relator, and the commissioners in behalf of the state. Now the question is, how have these conditions been kept and fulfilled by the parties ?
The material facts of the case as agreed upon by the relator and the commissioners, are substantially as follows:
Peaselee made default in paying the interest for the year 1853, and upon the 30th of May, 1855, assigned the duplicate certificate to the relator. The relator on the 11th of July, 1855, presented to the state treasurer, at his office, the duplicate certificate assigned to him, and then offered to pay the amount of principal, interest, costs and damages, and all sums of money due thereon, and demanded that the same should be received and receipted by the treasurer upon the certificate. The treasurer refused to receive the money or make the indorsement upon the certificate; the same application was made on the 14th of J uly, 1855, to the other commissioners, and a demand made for a patent, which was also refused. After the lands became forfeited, and before a tender was made to the commissioners of the amount due upon the certificate, and all damages and costs, and a demand made for the patent, John S. Byrne entered the
Under these circumstances, we think it an incontestable proposition, that the entry of Byrne was null and void. The lands were not subject to private entry, and could not be, until after offered for sale at public auction. Not only upon the ground of public policy, that the state was interested in having the land offered at public sale, but the purchaser had a right to insist upon it, as it was a part of the contract which the commissioners, in behalf of the state made with him, that it should be thus offered, before it should be subject to private entry. The purchaser had a direct and immediate interest in the proceeds of the sale after the state was'paid. He, therefore, has the right to demand that the lands should be sold at public auction. Until that was done, no private entry could be valid. The act of 1853 does not aid the matter; for it was not competent for the legislature to change an existing contract so as to materially impair the rights of parties under it, even should it attempt it. It is by no means evident that the legislature intended that section 3, chapter 43 of Session Laws of 1853, should apply to any previous sale. However that may be, it is very manifest that the act of 1853 cannot operate injuriously upon rights and interest which had become vested in 1851.
Peremptory mandamus awarded.