66 Wash. 130 | Wash. | 1911
In April, 1906, one O. O. Ort and one Elwood Purcell made separate applications to purchase from
The then existing statutes relating to the sale of state lands, however, provided that, whenever the estimated amount of timber of commercial value on any quarter section exceeded one million feet, the timber thereon should be sold separately from the land, under a condition that the same should revert to the state if it was not removed from the land within three
On the trial, the state made no attempt to show fraud on the part of the applicants for the land, or on the part of the cruiser who inspected the land on behalf of the state. It contented itself with showing that each quarter section of the land contained at the time of the application and sale more than one million feet of merchantable timber, and that its officers were led to believe the contrary through the inadvertence or mistake .of its inspector.
Section 6680 of Rem. & Bal. Code, provides that any sale or lease of state land made by mistake, or not in accordance with law, or obtained by fraud or misrepresentation, shall be void and the contract of purchase or lease issued thereon shall be of no effect, and that the holder of such contract or lease shall be required to surrender, the same to the commissioner of public lands. It is on this section of the statute that the state bases its claim of right to recover. It contends that these quarter sections were not sold in accordance with law, but by mistake and inadvertence, because they con
The evidence convinces us that each of the two quarter sections did have timber of commercial value thereon exceeding one million feet, and that, under the statute, the timber thereon should have been sold first and apart from the land; but we are unable to concede that, for this reason alone, the state may maintain the present action. In each of these instances the purchase price of the land has been paid and deeds have been issued. The state has thus parted with its title to the property; and if it sets aside the sale, it must do so on some equitable principle that authorizes an individual to set aside and declare for naught his executed contracts. The statute relied upon by the state, as we view it, has no application to a case of this kind. It will be noticed that it refers throughout to executory contracts, contracts wherein the state has not parted with its interests, and wherein something remains to be done by each of the parties before the sale is consummated. But here the contract is executed. Each of the parties have dealt at arm’s length and have completed the transaction. The state therefore stands in relation to the respondents as one attempting to avoid its executed contract.
That the state may have innocently made a mistake as to the character of the land is no ground for setting aside its sale. It can vacate and set aside its consummated sale of land only in those cases where fraud has been practiced upon its officers by the purchasers or through their connivance. This we held in State v. Heuston, 56 Wash. 268, 105 Pac. 474. That was a case where the state sought to set aside a deed executed for certain oyster lands which it was claimed had been sold under a mistake as to the character of the land. But we held that the state was obligated to discover the character of the land prior to the time it made the sale, and that
Such, also, is the case at bar. Whether this land contained more than one million feet of timber was a question of fact which the state determined adversely to the contention when the sale was made. It cannot now vacate the sale then made on the mere showing that it was mistaken as to the fact. As we say, it must be made to appear that the mistake was brought about by the fraud or connivance of the purchasers.
The judgment of the trial court was right, and it will stand affirmed.
Dunbar, C. J., Gose, Mount, and Parker, JJ., concur.