Brooke v. Eastman

Citations

• 17 S.D. 339
• 96 N.W. 699
• 1903 S.D. LEXIS 55

Syllabus

<p>1. Const, art. 8, § § 5, 6, relating to the disposal of school' lands, provide that the purchaser shall pay one-fourth of the price in cash and theremaining three-fourths in installments, but all such subdivided lands may be sold for,cash, provided that upon payment of the interest for one full year in advance the balance of the purchase price may be paid at any time, and that no “sale” shall operate to convey any title to any lands for sixty days after the date thereof, and that no grant shall issue until final payment. Laws 1890, p. 296, c. 136. provides for sales in pursuance of the constitutional provisions, and for the issuance of “contracts of sale,” and declares that whenever the purchaser of any tract shall default in the principal or interest, or shall violate any of the provisions of the contract of sale, such sale may be set aside. Held, that a purchaser who had made the first payment, and received a contract of sale from the commissioners, had an interest in the lands, which was subject to execution under Rev. Code Civ. Proc. 1903, § 336, subjecting to execution “all goods, chattels, moneys, and other property, both real or personal, or any interest therein, of the judgment debtor.”</p> <p>2. In a suit b,y execution purchasers of school lands to compel the,state to issue patents to them instead of to the original purchaser, the state, by a stipulation of counsel, agreed that, if the original purchaser had such an interest in the land as could be sold under execution, the execution and all other proceedings herein was regular, and his-interest passed to plaintiff under said sheriff’s deeds. Held, that the state could not be heard to complain that, in case it was compelled to issue patents to plaintiff, it would be unprotected from any claims by the original purchaser.</p>