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JONES AND EVANS V. TRUSTEES OF OSKALOOSA TOWNSHIP.

Appeal from Mahaska District Court — Tuesday,

July 23.

MANDAMUS.

DEFENDANTS demurred to the petition for the writ; the demurrer was sustained, and plaintiffs appeal.

J. A. L. Crookham for the appellants-Seevers & Cutts for the appellees.

WRIGHT, J.-We cannot undertake to set out at length the case made by plaintiff's petition. It is sufficient to state, that they seek to set aside the action of the defendants in dividing sub-school-district No. 8, erecting from a part thereof an independent district (Carbondale), denying the power to make such division and erection, and further seeking to compel said trustees to order the levy of a tax voted by said sub-district, prior to such division, to build a second school therein. And having stated the case made, it needs no argument to show that the demurrer was very properly sustained.

I. As to the alleged division of the district. The act was already performed. This writ issues commanding the person or board, to do or not to do an act specially enjoined, etc. Rev. 3761. Here the act was done, and there was nothing which the writ could either command or prohibit.

II. As to the tax. The township trustees had nothing to do with the levy. This matter is in the hands of the electors and school officers of the sub and township district. Laws of 1862, ch. 172, SS 16, 17. Not only so, but there is no averment that defendants had failed, neglected or refused to make such levy. And see act 1866, ch. 143, p. 155, §§ 5 to 11.

The petition makes no case for mandamus. It was properly dismissed. Judgment below

Affirmed.

HENN, Admr., v. THE STATE UNIVERSITY.

Appeal from Jefferson District Court-Tuesday,

July 23.

SCHOOL LAND CONTRACTS: THE CASE OF HENN, ADMR., V. THE STATE UNIVERSITY, 22 IOWA, 185, RE-AFFIRMED.

Stubbs & McCoid for the appellant-Negus & Culbertson for the appellee.

WRIGHT, J.-This case will be found reported in 22 Iowa, 185. In view of its importance to plaintiff, and of the questions involved to the public, and the University fund, a rehearing was granted, and the parties again heard at the present term. The case has been re-examined, and I am instructed to announce the opinion of all the judges, that the former order reversing the decree below, and dismissing the petition, should remain undisturbed. It is proper, without entering upon the ground covered by the former opinion, that we should state very briefly our reasons for this conclusion.

Preliminarily, we may notice a matter, growing out of the state of the pleadings (not discussed in the former opinion), and upon which plaintiff relies as effectually settling her right to an affirmance. The action of the board canceling and declaring forfeited the contract, was set up in the answer. To this there was a demurrer, which was sustained. There was no further answer as to such cancellation, and it is hence claimed that all this part of the defense was out of the case. The right to damages, or to recover back the money paid, however, is denied. And it is also set up that by reason of the failure to pay the interest for three years, the land was resold for a sum less than what was due on plaintiff's note, and that defendant was authorized to do this by the terms of the contract. The former opinion is not based upon the action of the board declaring the forfeiture, so much as upon the duty of the vendees of these lands to make prompt payments according to the terms of their contract. And in the view we now take of the case (not indeed essentially different from that announced on the former hearing), plaintiff may be conceded all that is claimed from the pleadings, and the result not be changed.

The contract with the university bound plaintiff to pay the interest annually. That prompt payment was contemplated is abundantly shown from all its terms, and this view is fortified by every act passed in relation to this fund, its security and collection. And, from the very nature of things, the object of the fund, the uses to which this interest was to be applied, the consequences to result if purchasers and borrowers should prove delinquent, this must be so. It was never contemplated that a purchaser could allow his interest to become delinquent year after year, and then, after the land has passed into the hands of innocent purchasers, permit him to come into equity and recover back, with interest, payments made years before. And especially so, when those controlling the fund, acting in good faith, have received no more, by the reseale, than plaintiff was under obligations to pay. Considerations of the most controlling public policy forbid such a recovery. Prompt payment was a necessity to accomplish the very object of defendant's creation. Plaintiff contracted with a knowledge of this, and he asks, in equity, to be relieved against the declared consequences of his own negligence. There would be much greater equity in his

claim to the land if it had not been resold, upon paying the balance of the purchase money, than in asking a court of equity, in the face of his negligence, in defiance of the clearest public policy, to make the university a borrower from all its debtors; liable to refund with interest for sums paid years before, and expended in the utmost good faith that its debtors would meet their contracts and thus assist, in the language of the law, in providing "the best and most efficient means of imparting to the youth of the State a thorough knowledge of the different branches of literature, the arts and sciences."

The mistake of plaintiff is, in applying the rules pertaining to contracts between individuals to that in question. Here was a great public interest to be promoted and sustained. The Constitution recognizes it as such, the law so regards it and every citizen of the State must so treat it. Plaintiff's intestate knew this when he entered into this contract. He knew, also, that the interest on these sales constituted the principal fund for its support; and, just as reasonably, that this interest was needed annually and promptly. His obligations are therefore to be guaged, if we may so speak, by a stricter equity, and the rights of the university to be more liberally construed than if there were no such high considerations of controlling public policy entering as an element into the case.

The order therefore made reversing the judgment below and dismissing the petition, violates no rule, is in accordance with the clearest principles of public justice, and will therefore remain undisturbed.

WARE V. TIPTON.

Appeal from Mills District Court — December 21.

ACTION to recover $100 which plaintiff alleges defendant undertook to pay him on account of a certain farm, sold by defendant to plaintiff, remaining in possession of a tenant, whereby plaintiff was deprived of the occupation of the same. Verdict and judgment for defendant. Plaintiff appeals.

D. H. Latimer for the appellant-Hale & Stowe for the appellee. BECK, J.-The court refused to instruct the jury, upon motion of plaintiff, to the effect that, if defendant informed plaintiff that another had promised to pay plaintiff $100 for the consideration alleged in the petition, and thereby plaintiff was induced to purchase the farm of defendant, this rendered defendant liable to plaintiff. The refusal thus to instruct was correct. By its terms the instruction makes defendant liable for informing plaintiff what another had proposed to do without any attempt or intention on his (defendant's) part thereby to bind himself.

We cannot say that the verdict is contrary to the evidence, which is one of the grounds of the assignments of errors. No other questions are raised by the record.

Affirmed.

PHENY V. METCALF.

Appeal from Monroe District Court — Tuesday,
January 26.

PLAINTIFF appeals, and assigns for error the action of the court below in removing the case, on defendant's motion, into the Circuit Court of the United States. Defendant's non-residence is not in dispute. The parties differ as to the value of the property in controversy (real estate), and how this value is to be shown.

Perry & Townsend for the appellant - E. H. Stiles and Brown & Sully for the appellee.

WRIGHT, J. — By proper pleading it is insisted that plaintiff has waived his appeal by appearing to the action in the Circuit Court of the United States. Appellee also insists that under the federal legisla tion the affidavit of the party applying for such removal, is to be accepted as the sole evidence of the amount or value of the property in controversy, and that a counter showing cannot be received. And finally it is claimed, that the record merely shows the transfer; that this order alone is appealed from; but it does not appear whether the court below considered these counter affidavits, etc. As this last point, in view of the state of the record, is decisive of the case, we omit any notice of the others.

It is recited that the cause was "submitted upon the petition for removal and the papers filed appertaining thereto," and the court, being advised, ordered, etc. But what papers were thus filed, we have no means of knowing. The evidence upon which the court acted is not certified to us in any method known to the law, as recognized by the repeated rulings of this court. Potter v. Wooster, 10 Iowa, 334; State ex rel. v. Jones, 11 id. 11.

Affirmed.

LEECH V. PROVOST.

Appeal from Dubuque District Court-Tuesday February 26.

PURCHASE OF REAL ESTATE HELD TO BE IN TRUST.

PLAINTIFF seeks to set aside certain execution sales of several parcels of real estate, upon the alleged ground that defendant in purchasing

the same was acting as his trustee. He also asks that an accounting be had, and the amount of indebtedness from one to the other ascer tained and settled. The defendant denies the trust relation, insisting that the sales were absolute, and that plaintiff is still largely his debtor. It seems that, commencing in 1855 or 1856, and continuing for several years, defendant loaned and advanced to plaintiff, and for his use, large sums of money. From time to time he took mortgages, procured assignments of judgments, and other securities amounting to thousands of dollars. These mortgages were foreclosed, and under these, and the judgments so obtained, plaintiff's property was sold and bid in by defendant. Before thus purchasing, he was in receipt of certain rents, and after as well as before, he took possession of parts of the property. It also appears that he received money from other sources. All this property (except that known as the “Church property") is still in defendant's name. The "Church property," he sold in June, 1863, for $3,000, having purchased it under execution against plaintiff in favor of Beall and others, in August, 1862. (This property defendant did not own, but he had other liens upon the property to which it was prior.) Plaintiff claims that the other defendant (the purchaser of this "Church property "), had notice of his equities, and that therefore this sale should be set aside. But if there was not such notice then he says, that the defendant (Provost) acted in bad faith in making the sale, that the property was worth very much more than $3,000, and he should, therefore, be held to account for its actual value. He also insists, that all these sales and foreclosures were in fraud of his rights, and that, in any event, defendant took and held the property in trust for plaintiff, that he has been fully paid, and asks that upon a final accounting he may be restored his property, offering to pay any balance, etc. All these positions and claims are denied by defendant. On the final hearing plaintiff's right to redeem was sustained, a balance found in defendant's favor of $76.91, the execution sales set aside, and both parties appeal.

Monroe & Deery for the plaintiff-Adams & Robinson for the defendant.

WRIGHT, J.-This case has been prepared with the utmost care. It involves property to a large amount, and the testimony is most voluminous and quite conflicting, and yet it presents none other than purely questions of fact. The law of the case is plain and not disputed. Without giving the testimony or discussing it in detail, we proceed to state our conclusions upon the several fact views discussed by counsel at bar. I. And first, and of course principally, does defendant hold the property in trust, or did he purchase it in his own right for himself, without any obligation to account for the same to plaintiff? We answer, that plaintiff certainly has good reason to believe that defendant was to acquire and perfect the title to the property, and hold it as his

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