Hickert v. Van Doren

The opinion of the court was delivered by Smith, J.: This case is entirely analogous to Spencer v. Smith, 74 Kan. 142, 85 Pac. 573, and to Beatty v. Smith, 75 Kan. 803, 90 Pac. 272, as to the service of notice and proceedings to forfeit the rights of the original purchaser of the school-lands in question. Following those controlling decisions it must be held that the attempted service of the notice in the forfeiture proceedings in this case is void, and consequently the proceedings are void and the rights of the original purchaser were not forfeited; and it follows that the plaintiff by a succession of assignments from such purchaser became and is vested with all the latter’s rights to the land. It is sought by the defendants to invoke the protec [677] tion of the decision in Burgess v. Hixon, 75 Kan. 201, 88 Pac. 1076, but no facts appear in this case that can operate as an estoppel as against the plaintiff so far as the forfeiture proceedings are concerned. This case differs essentially from Spencer v. Smith and Beatty v. Smith, supra, in this: In those cases Smith, the county treasurer, based his refusal to receive the money tendered upon an alleged superior right to the land of a subsequent purchaser, and it was held, in substance, that at the time of the tender the treasurer had no judicial power to decide between contending claimants and that in the mandamus actions he could neither plead the rights of another as a defense nor would he be recognized as appearing therein for another to defend the rights of such other; that it was his only duty to receive the money tendered and leave it to the contending claimants to settle their contentions amicably or in a court of competent jurisdiction. In this case, however, the defendants are the sole agents of the state, authorized by law to contract in the name of the state for the sale of its school-Jands and to receive payment therefor. No third party has any interest in the matter. It is a question purely as to the duty of the defendants, as official agents of the state, toward the plaintiff. The county treasurer and clerk have, however, such power only to contract for the sale of school-lands as is granted to them by statute. The statute is their power of attorney, and it authorizes a resale of school-lands only after the right of the former purchaser has been forfeited. (Gen. Stat. 1901, § 6857.) The preceding section of the statute provides the steps necessary to be taken to effect such forfeiture. Since the attempted forfeiture proceedings were void, as we have before determined, it follows that the attempted contract of sale of 1906 to the plaintiff was also void as not authorized by law. The plaintiff upon discovering his situation under [678] this so-called contract of 1906 had a right to ignore it and to proceed to assert his rights under .the legal contract he had procured by assignment. The defendants should have accepted his money tendered for that purpose. Let the peremptory writ issue, as prayed for. •