State ex rel. Mayers v. School Commissioners , 5 Wis. 348 ( 1856 )

■ By the Court,

Cole, J.

In the case of The State ex ret Dam-mon vs. The Commissioners of School and University Lands (4 Wis. Bep. 414), ibis court beld tbat a purchaser of school or university lands, under chapter 24 of the Revised Statutes (which had become forfeited for the non-payment of either principal or interest), had a right, by section sixteen of said chapter, at any time before a re-sale of such lands, by paying the sum due with interest, and all costs occasioned by the delay, together with five per cent, damages on the whole sum owing therefor, to revive the original contract and prevent such re-sale ; and further, that when such purchaser did not choose to revive the original contract by the payment of the sums specified in section sixteen, and prevent a re-sale of such land, by section seventeen of the same chapter it is provided, that on a re-sale, if the land should produce more than sufficient to pay the sum due the state, with interest and costs, and five per cent, damages on the amount of the purchase money unpaid, that the residue, when collected, should be paid over to such purchaser, and that he had a direct interest in such surplus which could not be taken - away or destroyed, and of which he could not be deprived by any subsequent-legislation ; and that by reason of his direct interest in such proceeds, he had a right to insist that the forfeited land should be re-offered for sale at public auction, according to section twenty-seven, before it could be subject to private sale.

The principle decided in that case is distinctly against the case of the relator as presented by the pleadings, and fully disposes of it. We do not deem it necessary to go on and re-argue the soundness of the doctrine in the Dammon case. The statute is so olear and explicit in its terms, and as to the rights of the purchasers, that it seems to be a waste of words to make any ob-serrations in support of tbe principle there established. The statute says the surplus proceeds, after paying the state, shall go to the purchaser, and that the land should not be subject to private sale until it had been re-offered at public auction. Of .course we axe now considering a sale under the Revised Statutes. And why should the purchaser thus interested in the surplus moneys have a right to insist that the land should be re-offered at public auction ? Manifestly, so as to give him the advantage of competition, and that the land might be sold for the highest and best price. Competition at the public sale would proportionally increase the surplus coming to him. Therefore, he had a right to claim from the state an observance of this condition of the contract.

The demurrer of the relator to the return of the commissioner is overruled, and peremptory mandamus denied.