Davany v. Koon

SlKRALL, J. : The circuit judge was of opinion, that the contract offered to be read to the jury was inoperative, and conferred no right upon the plaintiff unless accompanied with proof that all the conditions prescribed by law for the sale or lease of the school lands have been complied with. These requisites are a petition of the majority of the heads of families, and the advertisement of the six weeks, etc., of the sale. There is a palpable distinction between acts done by persons acting in an official capacity, and acts done by private individuals. Liberal indulgencies and intendments are made in favor of the former. If an official act comes into question the presumption is in favor of its propriety and validity, unless a departure from or violation of law is apparent on the face of the transaction. It was declared in Wray v. Doe, 10 Smedes & Marsh. 461, that this is a general principle applicable to most acts of a ministerial or official character. It was objected in the case of Wray v. Doe, supra, that the location of the Indian reservation was not good until it was proved that all the preliminary steps had been complied with, viz. : that a list of names of reservees, including the particular Indian, was furnished by the seven chiefs and filed with the agent,'and his certificate of its believed accuracy furnished to the register and receiver prior to the location. But the court declared proof of these facts not necessary. The location is itself evidence that all the prerequisites have been complied with. “A violation of duty on the part of the officers who made the location cannot be presumed.” The entire system of land grants by the government, national and state, reposes upon this prin [75] ciple. A patent is evidence, per se, that all the precedent conditions to its issuance have been complied with. It is necessary to the safety and quietude of estates in land derived from the government through its officers, that this presumption should be indulged. The 16th, or school sections, may be leased for ninety-nine years, to the highest bidder, on a credit of one, two, three and four years, on a request of a majority of the resident heads of family in the township, six weeks’ notice of the leasing being given by advertisement. Act of 1833. The paper offered in evidence recited that such request had been made; that the six weeks’ notice had been given, and that Jenkins Davany became the lessee (being the highest bidder), and executed his four notes for the installments. Recitals only bind parties and their privies, and would not con- - elude the defendant. But the effect which attaches to the paper is not by way of-estoppel.' We should be inclined to hold, that the paper propounded in evidence had the effect (not upon the principle of ■ estoppel, however) of raising the presumption that the board of police had conformed to the law. The township trustees, and in special circumstances, the board of police, are authorized by law to sell for a limited time the school lands. These lands were donated by congress for educational purposes in the townships. The use and disposition of them for that purpose is in the state. We should not be inclined to apply to the leasing of these lands a different principle from that which obtains in the rules made by the United States, or by the state, of lands donated by congress for internal improvements or other purpose; but for the decision in Philips v. Doe ex dem. Burrus, 13 Smedes & Marsh. 35, where it was held, that the lessee from the trustees, or the board of police, must prove performance of all the antecedent conditions. It is put by the court upon the footing of a naked statutory authority to sell, and is assimilated to a tax collector’s sale, when strict conformity to law must be shown. The cases referred to by the court, of Williams v. Peyton, 4 Wheat. [76] 77, and Jackson v. Shepard, 7 Cow. 77, were titles derived from the marshal or collector of the direct taxes, under an act of congress. Is there not a distinction ? The tax collector sells in invitum, the property of the citizen. His authority to sell is the concurrence of certain facts, out of which his authority springs. The sheriff sells by authority of the judgment and execution; unless they are produced, no authority is shown. The 16th sections were reserved from sale by congress, for educational purposes. The state, by law, indicates certain pei’sons, who are, pro Tiac vice, her officers, to make leases. The terms are prescribed, just as the acts of congress, from time to time, have declared who may be a pre-emptor, locator, or enteree, or lessee of mineral lands belonging to the United States, or the state, the conditions upon which the 500,000 acres donated to her for internal improvements. In all these cases the national and state governments act by officials. And when the register, receiver or state commissioner issues a paper, on its face conformable to law, that a certain person has become a purchaser, it has always been held that the paper itself is prima facie evidence that all things required to be done have been performed. It is the state, who can only act, through agents and officers, disposing of land held by her for a public purpose, and not like the case of a marshal, or tax collector who assumes the right to sell private property for a sum due to the government. Before the citizen can be deprived of property for public uses, or to satisfy a debt to the state, the “due course of law” must be rigidly pursued. An officer laying his hand upon the property of the citizen, and passing the title by sale, must be strictly within the pale of the law, and his purchaser must show full compliance. As an original question, we should incline to the opinion that the principles laid down in Wray v. Doe, etc., 10 Smedes & Marsh., apply to leases of the school sections. No substantial difference is perceived between the sale of these lands for a limited time, and the sales of the internal improvement lands, lands donated to the Chickasaw counties [77] for schools, and the lands of the United States. After the lapse of a few years it becomes very difficult, in many instances almost impossible, to prove performance of the conditions. There is no authority to spread the lease, and other evidences connected with it, on the public records of the county. It seems to us, therefore, to better accord with principle and its analogies, to be more advantageous to private and public interests, to apply to the leasing of the 16th sections the same general rule that obtains with all other agents and officers connected with the sale of lands that belong to the United States or the state, viz., that the paper or muniment of title issued by them, ostensibly conforming to law, shall be prima facie evidence that the demands of law have been performed. And the onus of proof shall rest upon the party contesting the title to show a failure or omission to fulfill the legal requirements. But it is not necessary to decide this point, as we are of opinion that the paper was competent evidence for another purpose. It is well settled in this state that the court will not control the order of the introduction of testimony (except that where secondary is offered, the absence of the original must be accounted for). The act of 20th January, 1841, gave to the lessees of the school sections the same rights of action and remedies against strangers as if they were the fee simple owners. Hut. Code, 221. To maintain his action, it was incumbent on the plaintiff to prove either an actual possession of the locus in quo, under a claim of right, or to prove a freehold or leasehold title to the premises, with a right to the possession, which would draw to him a constructive possession, unless there was an adverse occupancy by somebody else. The paper was rejected by the court, because it conferred no valid title as lessee on the plaintiff, he admitting that he could not prove a performance of the .precedent facts. Nevertheless, the paper was competent evidence of a color of titlé, to which the plaintiff might refer his possession. Possession under it would [78] enable him to sustain this action. This would bare been enough to have devolved upon the defendant to show title in himself or some third person, in order to defeat the action. Ware v. Collins, 35 Miss. 230. The testimony offered being pertinent to the issue, its rejection was injurious to the plaintiffs. Wherefore the judgment is reversed' and cause remanded.