#### State ex rel. Orton vs. Commissioners of School and University Lands.

Where the agent of a person holding a certificate of sale of school lands paid the annual interest in due'time, but failed to specify the object of the payment so as to be understood by the state treasurer, or to deliver to him the unsigned receipt obtained from the secretary of state, and in consequence such payment was not entered on the treasurer’s books, and the land was resold as forfeited : *Held,*that the commissioners of school and university lands, upon ascertaining the mistake, were authorized (under sec. 121, ch. 28, R. S.) to declare the resale void.

APPLICATION for a *mandamus*to compel the respondents to issue to the relator a certificate of sale for certain school land.

*K*Mariner, for relator.

*The Attorney*General, for respondent.

*By the*Court,

Cole, J.

We think the return of the commissioners furnishes a sufficient excuse for not issuing a certificate of sale to the relator. They say, in substance, that the sale to him was made by a mistake, and therefore it was annulled and vacated by virtue of the authority vested in them by section 121, chap. 28, R. S.

*249It appears from tbe return tbat tbe agent of tbe original purchaser received from her a sufficient sum of money to pay tbe interest falling due upon tbe land, and undertook to pay it at tbe proper office. Tbe agent did in fact make tbe payment in time to tbe state treasurer, but omitted, through mistake; to specify with sufficient distinctness the object of tbe payment so as to be clearly understood by tbe treasurer, and likewise failed to deliver to the treasurer for bis signature tbe unsigned receipt of such payment, which the agent had received from tbe office of tbe secretary of state. The consequence, of course, was, tbat tbe treasurer did not make tbe proper entry upon bis books, showing tbat interest bad been paid, and tbe land was treated as forfeited for non-payment of interest. Soon after tbe sale was made to the relator, and before a certificate was issued to him, tbe commissioners were informed of tbe previous payment of tbe interest. They then proceeded to vacate tbe sale, and applied the money which bad been paid in to tbe discharge of tbe interest. Tbe relator was at once notified by tbe commissioners of their action in tbe premises, and they offered to return to him tbe money which be bad paid at tbe sale. This be refused and still refuses to receive, contending tbat tbe sale to him was valid, and tbat tbe commissioners bad no authority whatever to set it aside and treat it as a nullity. And whether or not, under tbe circumstances, they bad tbat authority, is tbe question arising upon the return.

Tbe section of tbe statute already referred to provides, in case of the sale of any school or university lands made by mistake, or not in accordance with law, or obtained by fraud, tbat then such sale shall be void, and tbat no certificate of purchase issued' thereon shall be of any effect, but tbe bolder of any such certificate shall be required to surrender tbe same to tbe commissioners, who shall thereupon refund the amount paid for tbe land described in such certificate. We are unable to perceive why this provision of law does not fully apply to tbe case at *250bar, and authorize the commissioners to treat the sale to the relator as void. For, beyond all dispute, the sale to him was made under a mistake, and in entire ignorance on the part of the commissioners that the interest had been previously paid.

But it is insisted that this'provision only applies to a case where the mistake is wholly that of the commissioners, the original purchaser not being in any wise at fault, and not to a case where such purchaser was in some degree at fault by failing to do everything necessary for him to do in order to complete the payment. Here, it is said, the mistake was that of the agent in supposing he had done all that was necessary for him to do when he paid the money into the office of the state treasurer, whereas he should have specified clearly the object of the payment so that the treasurer would have fully understood the purpose for which it was made, and been able to properly apply it, or at all events should have obtained a receipt from the treasurer of such payment. It is true tire agent in this case was in some measure responsible for the mistake ; that is, he might perhaps have prevented it, had he, when he paid the money, procured the signature of the treasurer to the unsigned receipt which had been given him by the secretary of state. In that case it is probable the proper entries would have been made in the books of the treasurer, and the payment would have been rightly applied. Even then it is not impossible that theUand might have been resold as forfeited land when it should not have been. But however this may be, we are still of the opinion that the commissioners might set aside the sale to the relator on the ground that it had been made under a mistake, although the agent of the original purchaser was in some degree responsible for such mistake. The agent paid the interest into the office of the state treasurer in time to prevent a forfeiture. The proper application was not made because the agent was doubtless ignorant of the method of transacting business at that office. And yet it is very clear, and the commissioners so return, that the sale was made under a *251mistake of the facts, and in ignorance that the interest had already been paid. Under these circumstances we think the commissioners were fully authorized to set aside the sale made to the relator, and to withhold the certificate of purchase.

The demurrer to the return is therefore overruled.