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The People on the relation of Robert W. Cummings v. The State Treasurer
Martin Ch. J.: The late commissioner of the land office committed a Very great error in his construction of the ninth section of the act for the sale of swamp lands (Sess. L. 1858, p. 173), nnd in the instructions contained in his circular letter of February 24th, 1858.
This section made provision for two distinct classes of purchasers, viz.: settlers and occupants of such lands at the time of the passage of the act, who should have been such settlers thereon on the 1st of December, 1857, and owners and occupants of adjoining lands, who Were such on said first of December.
The commissioner appears to have overlooked this distinction between settlers upon the lands, and owners and occupants of those ad 370 joining, and to have required, as a condition to the right to purchase, actual residence in each case. This, it is apparent, is not the requirement of the law. In the one case, residence is requisite; in the other it is not, for there may he ownership and occupancy without actual residence.
That there may he ownership without residence, requires no demonstration, and occupancy may consist of cultivation and use, without actual residence, or may he hy a tenant. This error, and the supposition that he had power to annul the sale, and convey the land to another, with the first certificate outstanding, led the late commissioner, upon the evidence offered hy Clark, to annul the sale to Bentley, and sell the same land to Clark.
But we do not conceive that he had the power to annul the sale unless the certificate was surrendered up. The statute (Comp.
L. §2498) enacts that in case of any sale of land made hy mistake, or not in accordance with law, or obtained hy fraud, the same shall be void; and that no certificate of purchase issued thereon shall be of any effect, hut the holder of any such certificate shall he required to surrender the same to the commissioner, who shall thereupon refund the amount paid, &c. This statute is declaratory of the effect of mistake, illegality, or fraud, and, in this respect, contains no provision novel to the law.
It also provides that the certificate shall he required to he delivered up to the commissioner, and the return, upon such delivery, of the money j>aid. The duty of requiring the delivery of the certificate is undoubtedly devolved upon the commissioner, and if it shall he surrendered* he must refund the money paid. But neither this statute, nor that which gives the commissioner the general charge and supervision of all lands belonging to the state (Comp.
JO. § 2428) confers upon him judicial power to try and determine the validity of a sale. His acts are ministerial. If, from any cause, he should discover that a sale had been made hy mistake or fraud, or not in accordance with law, it would he his duty to notify the purchaser of that fact, 371 and that the law required the surrender of his certificate. But he has no powers conferred to try and determine a charge of fraud, nor to esercise any judicial functions respecting sales made in his office.
If such charge be made, the commissioner, if he deems it worthy consideration, may institute legal proceedings to avoid the sale, in which the purchaser, as well as the state, can be heard, and the charge investigated under the sanctions of law. Until the sale shall be adjudged void, for one of the reasons mentioned in the statute, the commissioner has no power to declare it so, and to sell the land to another purchaser; nor has he in any case, before the' certificate is surrendered.
It is not the policy of the state to create conflicting titles, and no more mischievous policy could be pursued than that of issuing certificates of purchase for the same land to different persons, under circumstances like these before us in this case. Let the writ of mandamus issue. The other Justices concurred.