Branch Bank at Mobile v. Tillman , 10 Ala. 149 ( 1846 )

COLLIER, C. J.

We think it altogether clear, even if the bill had disclosed a case proper for equitable interposition, that no final decree should have been rendered for the complainant, without first making the commissioners of the 16th section a party. But as a reversal for defect of parties would make it necessary to send the case back, we will inquire into the equity of the bill.

A statute passed in 1828, made it the duty of the school commissioners of the several 16th sections, to hold an election to ascertain the sense of the “ qualified electors who may be inhabitants of the township, respecting the sale of their 16th section,” and to “certify the result to the judge of the county court of the proper county,” or if there be no judge in office, then to the clerk. And where a. majority of the “ qualified electors” have chosen to sell the 16th section, and the election has not been contested and set aside within twenty days after it was holden, it is the duty of the judge of the county court, and of the clerk, &c. to issue an order of sale to the commissioners, who shall, on the reception thereof, cause, &c.

In Tankersley, et al. v. The State Bank, 6 Ala. Rep. 277, the act above recited, came under review, when it was held, that “ the judge of the county court has no other power conferred upon him than to determine upon the validity of a 'contested election. The power of selling is exclusively lodged with the voters of the township, and no portion of the law lends any countenance to the supposition that he had the power to thwart their wishes.” It was consequently concluded, “that the order he was required to issue, was a mere notification of the fact that no one contested the election, and that there was no obstacle to a sale of the land. This being its whole object and design, the commissioners might proceed to sell upon their own knowledge of the fact.” Further, the requisition of the statute, that the commissioners should make an entry in a book, that they had made sale of the land, and taken notes of the purchasers with surety, with any other particulars of the sale, &c., and return the same to the judge of the county court to be recorded, was merely directory, and the omission of this duty could not affect the rights of a purchaser. In conclusion, in the case cited, it was said, “ that there was in fact an election to ascertain whether a sale should be made — that a sale was in fact made to the plaintiff in error, and that upon his executing his notes as the statute requires, he was let into the possession of the land. Such being the fact, and no member of a township having contested the validity of the election, the township is forever estopped from denying his title, and he cannot, therefore, refuse to pay the purchase money.”

It is not denied by the bill, in the case before us, that the commissioners furnished to the complainant written evidence that he was the purchaser of the part of the 16th section for which he gave his notes, or that such evidence is not extant among the papers of the commissioners, or in the office of the clerk of the county court. If the purchase is thus evidenced, even if the payment of the notes and the possession of the land were insufficient to take the case out of the statute of frauds, there can be no doubt, (unless it is objectionable for causes not brought to view,) but the purchaser could coerce a title.

If, however, the facts alledged would have been available had they been presented as a defence at law, it might perhaps be pertinently asked, whether the complainant has shown a sufficient excuse for the failure there to defend himself? Were not all the facts of which he has since acquired a knowledge accessible to him, and why did he not previously endeavor to avail himself of them. [French v. Garner, et al. 7 Porter’s Rep. 549.] These questions need not be here answered.

It follows from what has been, said, that the equity of the bill is not defensible; the decree of the Chancellor is therefore reversed, and the bill dismissed.