The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-04-05
TEST new Law.
Supreme Court Must Pass on
School Land Statute.
Arguments Submitted i'll Dsca-
tur County Mandamus Suit.
INVOLVES 500 ACRES.
Doster Argues I'm Defense of the
"SaVing Law
Law Was Drafted by 4. F.
Carver Of Topeka.

Arguments were made in the supreme
court Thursday afternoon in a case
Whlcn VIII test the validity of the "sav-
ing law enacted by the last session of
the legislature for the benefit of the
recent purchasers of western Kansas
school land, on which the forfeiture of
the original settlers have been found
to be invalid.
me case is from Decatur county, and
IS an original mandamus suit to compel
r. h. Smith, county treasurer of Deca-
tur county, to accept money to pay up
on the original certificates to five quar-
ter sections, or. 500 acres of very valu-
able Decatur county land The plaintiff
in the case is George F. Beatty, who
bought the original certificates from
the original owners.
Inc attorneys for the plaintiff
Smith, are d. r. Hite and Mulvane q
Gault. Frank Doster and Langmade
Smith.
The contention of Beatty's attorneys
are simply that Beatty holds the origi-
mai certlhcates, that the certificates
We're never legally forfeited, and that
they still constitute claim and title
to the land, when paid up to date as
Beatty has offered to paw them. The
case of Spencer VS.. Smith, which start
ed all the trouble for western Kansas
landholders, is the basis for the con-
tentton.
Smiths attorneys came back with a
very strong argument in favor of the
present holders of the land. They con-
tend that the present holders have been
in undisputed possession for a number
OF years; that they have made many
valuable improvements on the land, and
that the saving law of the 1907 session
should operate to cure any defects
which may have existed in the forfei-
ture notices.
THE Saving law was drafted by
Judge T. F. Carver of Topeka, at the
request of many of the western Kan
sas school landholders who were afraid
their titles would be affected by the
interference Of the original certificate
holders.
In arguing the case on the basis OF
the new saving statute" the attorneys
for County Treasurer Smith say:
AS stated, counsel for plaintiff do
not notice the above statute, perhaps
for the very good reason that 1t vail
dates all defective returns of service of
school land forfeiture notices. 1t pro-
vides in section two that the return of
the sheriff shall not be held to show an
insufficient or invalid service because of
the omission OF any recitalS required by
law to show legal service; but if, not
Withstanding such omission, such re-
turn shows that service of such notice
was made by posting copy thereof in
the office of the county clerk, such re-
turn shall be prina facie evidence in
any action or proceeding in any court in
this state, etc, etc.
Section 8 provides that where school
lands have been purchased default in
payment made, land abandoned and for
fixture notice issued and served bypost-
ing in the office of the county clerk, and
land subsequently sold to another pur-
chaser, such notice so posted shall be
sufficient on which to base the forfeit
ture proceedings. The sheriff's returns
of service, though irregular and ,defec-
tive in probably all the instances men
toned in the alternative writ, and in
sufficient within the decisions of this
court as foundations for forfeiture, are
nevertheless covered in every particu-
lar by the recently enacted statute. This
is so plain that we deem it wholly I'M
necessary to particularize by quoting
the officers returns and applying the
statute thereto
TT is alleged in the answer as to one
of the tracts of land in dispute, that
since its subsequent resale the purchaser
has made payment in full to the state
and received patent. Under such cir
cumstances 1t would seem impossible to
subject the treasurer to the obligation
of receiving plaintiffs tender OF money.
The state has parted with its title to the
particular tract. It ought not to be re-
quired now to go through the empty
formality of pretending to an ownership
of the land and an obligation to receive
HlOIlSy OI1 nCCOuIII VI II. 1HdI
was ruled in the case of Smithee v.
Mosely 81 Ark. AIS. In that case it APP
peared that the state had sold certain
of it's lands and had received payment
therefor. Subsequently the state again
sold the same land, and issued a patent
for it. Mandamus was asked by the
first purchaser to compel the issuance
of a patent to him, but the court re-
fused upon the ground that the state
had already parted with it's title, and
hof injured
was a suit in equity against the rival
claimant to the land"