Roll v. Nation

The opinion of the court was delivered by Graves, J.: This action was commenced in this court by T. J. Roll and Oscar Roll for a writ of mandamus to compel the state auditor to make the proper certificate to enable them to obtain a patent for certain school land which they have purchased and paid for, as prescribed by law. It has been made to appear that E. P. Williams purchased the land in question on October 13, 1884. In the following November he assigned the certificate to Gust Carlander. The assignment was duly reported to and recorded by the county clerk of Pratt county, where the land is located. Car-lander held the land for ten years, during which time he regularly paid the interest on the deferred payments. He assigned the certificate to the McPherson National Bank, and it assigned to Charles H. Williams, who assigned to the petitioners herein. The petitioners paid the balance of the purchase money in full, and the county clerk duly indorsed upon the certificate that the purchase price had been fully paid and the holders of the certificate were entitled to a patent to the land. The petitioners presented the certificate so indorsed [677] to the state auditor, and demanded that he indorse it as required by law in such cases, so that a patent to the land could be obtained by them. The auditor refused to make the necessary indorsements, for the sole and only reason that the sale to E. P. Williams had been forfeited and the land had been again sold. It appears that steps were taken to forfeit the sale to Williams, and upon the assumption that the forfeiture was valid and in compliance with the law the land was again offered for sale. The petitioners were in possession of the land, purchased at the second sale, and received a certificate of sale therefor in 1903. In 1907 Charles H. Williams, then the owner of the certificate under the first sale, commenced an action of ejectment in the federal court against these petitioners, who were then claiming the land under the second sale. In that action it was claimed by the plaintiff that the forfeiture of the first sale was invalid. The petitioners were informed by counsel that their title under the second sale was defective, and were advised to make terms with Williams and secure the rights held by him. They thereupon, for the purpose of securing peace and security in the possession of the land and improvements, obtained an assignment from Williams and his wife of all their right, title and interest in the land. The auditor informed the petitioners that they would be compelled to pay up under the last sale before they could obtain a patent to the land. We think the forfeiture proceedings were invalid, and therefore the petitioners have a right to a patent under the first sale, having paid the purchase price in full. The county clerk did not issue a notice of forfeiture to the owner whose name appeared of record, but such notice was issued to E. P. Williams, who was known to have parted with his right to the land and had no further interest in it. It appeared from the record that Gust Carlander was the owner. No effort was made to give notice to him, or to his heirs, or to [678] anyone who might be holding under him. On the contrary, a notice was issued to a person known to have no interest in the land. Such a notice was not only useless, but was misleading to persons unacquainted • with the facts. An assignee of a purchaser, when the assignment has been reported _to and recorded by the county clerk, takes the place of the former purchaser, and must be dealt with in forfeiture proceedings as the purchaser. (Oberlin Loan Co. v. Flinn, 58 Kan. 83.) Under section 6356 of the General Statutes of 1901 (Laws 1879, ch. 161, § 2) notice of forfeiture must be issued to the purchaser. At the time of the attempted forfeiture the plaintiifs were in possession of the land as tenants of the McPherson bank, which was then the owner of the land. The proceedings were clearly not in compliance with the law, and therefore the forfeiture is invalid. The first sale must be upheld, and the petitioners are entitled to a patent. The auditor ought to comply with their request in the premises. (Hickert v. Van Doren, 76 Kan. 674.) The writ is allowed.