| Ark. | May 15, 1889
The State of Arkansas brought suit in the Independence Circuit Court to recover of Thomas J. Morgan a section of common school land.
The defendant filed his answer to the complaint, to which a demurrer was interposed. The demurrer was overruled, and the cause tried upon the pleadings and exhibits; there was verdict and judgment for defendant, from which the State prosecutes this appeal.
The court treated the answer as a complete bar to plaintiff’s right to recovery, and we are now called’to decide whether this was error.
The complaint alleges that the plaintiff is the owner of the land, and that the defendant is in the unlawful possession thereof. That the State acquired title by an act of Congress and an ordinance of the General Assembly, each approved in 1836. That the defendant claims title under patent from the State, signed by the Governor'and countersigned by the Secretary of State, bearing date the 27th day of February, 1875. That the patent was procured by the false and fraudulent representations of the defendant in this : That the defendant presented an application to the Board of Common School Commissioners for the purchase of the land, and also an unsigned paper, addressed to the Secretary of State, who was a member of the board, purporting to come from the office of said board, stating that the defendant had paid in full the purchase money for the tract of land, and recommending that a patent be issued to him. It is further alleged that the defendant had not acquired a right to a patent, either by original purchase, or by assignment from the original purchaser; and that the action of the Governor and Secretary of State in issuing the patent was in excess of their authority and without warrant of law There is prayer for the possession of the .land, with damages.
The answer of the defendant alleges that in 1854 the land was sold by the county commissioners to one John W. Bright,, upon a credit. That Bright failed to pay either the principal or interest, and by the provisions of the law regulating the sale, the-land reverted to the State. That on the 18th day of February, 1875 the land was subject to sale by the Board of Commissioners of the common school fund, and he made application to said board to purchase it. Denies that he made any false or-fraudulent representations to the board to procure a patent, but alleges that his application disclosed the sale to Bright, and its. terms. Alleges that the application was duly considered at a meeting of the board, and that the board, being satisfied that the land had been sold to Bright at public auction, that he had. failed to pay for the same; that it had reverted to the State, and that $2 per acre was a fair price for it, ordered that it be sold to him at that price. That he paid into the treasury of the-State the price fixed, and thereupon the patent issued to him, and he thereby acquired title to and became the owner of the land. That the board had adjudged that he had become and was the purchaser of the land, and that the finding was conclusive against the State. That the facts .so found were true. It is-further alleged that the defendant complied with all the conditions of purchase, entered immediately into possession of the land, paid all taxes assessed against it, and had made lasting- and valuable improvements upon it. A copy of the patent is-exhibited with the answer.
The complaint was entitled “at law,” and the court so treated" the case. With this view it overruled the demurrer to the answer. Was this error ?
Section 52, of chapter 154 of Gould’s Digest, prescribes the terms upon which school lands should be sold. It provides for sales upon a credit, purchasers to' give bonds and pay interest semi-annually. It contains a provision “that any person may pay the amount in cash for which the said land was sold,” and it is upon the terms of this provision that the appellee relies to sustain his right to purchase. We cannot give it the construction contended for, even if the act was in force when he purchased. Its manifest purpose was to permit purchasers to pay cash instead of giving the bonds provided for. It was not intended to allow other persons than the purchasers to acquire land sold, by paying in cash the amount for which some one else had purchased it.
Sections 5564 and 5565, of Gantt’s Digest, copferred no new authority to sell, but only enlarges the authority elsewhere conferred on the Collector of the county. It is not alleged that the appellee purchased from the County Commissioner under the provisions of Gould’s Digest, or from the County Collector, under the provisions of Gantt’s Digest: as the Board of Commissioners never had authority to sell, it follows that his purchase was made without any warrant of law.
But it was provided by the law in force when the appellee received his patent, that every purchaser of common school lands should be entitled to receive a patent from the State, conveying and assuring title after the purchase money was paid. Gantt’s Dig., sec. 5570.
Their acts in the line of authority cannot be questioned because they took mistaken views of the law, or of their duty under it. If the patent was absolutely void on its face, that is, if it appeared on its face, to be invalid, “either when read in the light of existing law, or by reason of what the court must take judicial notice of; as, for instance, that the land is reserved by the statutes from sale, or otherwise appropriated, or that it was executed by officers not intrusted by law with the power to issue grants of portions of the public domain, it would be subject to assault in any controversy.” But where such is not true, and it is attempted to annul it for some official error or misconception, resort must be had to a direct proceeding in a proper tribunal. St. Louis Smelting and Refining Co. v. Kemp, 14 Otto, 636; Wilson v. State, Ark., 198.
The answer is not a complete bar to the case made by the complaint; if its allegations be confessed, the patent may be avoided at the suit of the State, and the defendant shows only the right to have such terms imposed as are equitable and just.
It is a familiar principle of equity jurisprudence that, “When a complainant comes before a court of conscience invoking its aid, such aid will not be granted except upon equitable terms. Whelan v. Reilly, 61 Mo., 563.
In suits to set aside conveyances between private parties, this principle has been held to apply, and require that the plaintiff restore the consideration he has in hand. Stull v. Harris, 51 Ark., 294; Boseman v. Browning, 31 Ark., 364; Ellis v. Ellis, 4 So. Rep., 868.
It has been held that the sovereign is not bound by any statute of limitations, or barred by the laches of its officers, in suits to enforce a public right; yet it must receive its relief in accordance with the general principles of equity, and not in violation of their terms. Brent v. Bank of Wash., 10 Pet., 615; U. S. v. Beebe, 17 Fed. Rep., 36.
If the plaintiff shall amend its complaint and supply the omission we have indicated, the court will hear the cause, have. an account stated of the amount which plaintiff should pay the defendant, crediting him as in other similar suits by the purchase money, amount paid for taxes, and the value of improvements on the land, and charging him with the rents and profits; and upon the payment of said sum, render a decree canceling the patent. If such amendment is not made the cause will be dismissed. As the plaintiff may not be able to ■comply with equitable terms until the Legislature meets, and provides, if it so desires, the fund necessary, it would perhaps be well for the court to continue the cause until that time.