By the Court,
DixoN, C. J.
The first and most important question which arises in this case is whether, under the provisions of §§ 87 and 88 of chapter 24 of the statutes of 1849, there was in the first instance a sale of the lot in question to [10]*10the State, and subsequently a re-sale to the defendant, or whether the sale was made to the defendant directly on satisfaction of the mortgage. The latter proposition is very ingeniously and strenuously urged by the counsel for the defendant. The 86th section provides that “ on failure to pay any interest or principal when due, on any such mortgage, the commissioners shall advertise' the mortgaged property for sale;” the 87th section, that “ at the time appointed for such sale, one or more of said commissioners shall attend, and they shall make sale of so much of the mortgaged premises to the highest bidder, for cash, as will pay the amount due for principal, interest, damages and costs of advertising and selling the same and the 88th section, that “ in case no one will bid the full amount due as aforesaid, the commissioners present shall bid on the same on account of the proper fund; and as soon thereafter as may be, shall sell the same to the highest bidder for cash, or on a credit of five years, interest being payable annually in advance.”
It is contended that the authority or requirement of the commissioners in the 88 th section to bid on the same in case no one will bid the full amount due, is not intended as a sale to the State; but simply as a bid to prevent the mortgaged premises from being struck off under the 87th section at a sacrifice, and for less than the sum due to the State, to the injury and detriment of the fund; and for the further purpose of enabling them to sell the same on a credit, in case no further cash bids for the full amount shall be made.
Again, it is claimed that this view is strengthened by the provisions of § 89, which declares that “the sale authorized in the preceding section, shall not be for a less amount than the sum chargeable on said land, and if for more, the over-plus shall be paid to the mortgagor, his heirs or assigns.” It is said that the provision in this section for the payment of the “ overplus to the mortgagor, his heirs or assigns,” shows [11]*11that his equity of redemption is not yet lost, and that a sale under section 88 is virtually a sale under the mortgage, and not a sale made by the State independently of the mortgage, after it had acquired title; and, therefore, it is claimed that no statement of a sale to the State made out and signed by the commissioners was necessary to be given in evidence to sustain the title of the defendant. In these views we feel compelled as we think for very obvious reasons to differ with the counsel.
In the first place § 87 is mandatory. It commands the commissioners to make sale at the time appointed for the sale. The sale provided for in the 88th section need not necessarily be at the time appointed for the sale under the 87th section. It may well be doubted whether under a fair construction of § 87, and without the limitation upon the authority of the commissioners contained in § 88, they would be authorized to sell the mortgaged premises for cash, for a less sum than the total amount of the principal, interest, damages and costs.
Section 87 being mandatory, and requiring the commissioners to make sale at the time appointed; section 88 provides that in case no one will bid the full amount due, or what would amount to the same thing, in case there should be no bidders, that then the commissioners “ shall bid on the same on account of the proper fund/5 and thus the requirements of § 87 are in all cases complied with, and a sale is made. The word “ bid/5 as here used, when construed with reference to the requirements of § 87, seems to imply that there is to be a sale. If the object was to enable the commissioners to sell upon credit, it is difficult to see why that could not have been provided for in the first instance, and as well without as with this idle ceremony of bidding. We think the object of requiring the commissioners to bid was to enable them in. all cases to make sale, and thus cut off the mortgagor’s equity of redemption. The commissioners, in pur[12]*12chasing the mortgaged premises for the state, were not required to bid the full sum due, but might in their discretion bid such sum as they, in view of their situation and value, deemed most for the interest of the state, and thus hold the mortgagor personally liable for the deficiency, in case the state should fail to realize the whole amount due from a re-sale of the premises.
If, in reality, as is contended, there is but one sale provided for, that sale would be governed by the provisions of § 89, and then it would follow that the mortgaged premises, regardless of their value, could in no base be sold for a less sum than the total amount of the principal, interest, damages, and costs, and thus, though the state should fail to realize even a tithe of its debt, the mortgagor would be discharged from all liability to pay any portion of it. This, obviously could never have been the intention of the legislature.
The argument to be drawn from the provision in the 89th section, for the payment of the overplus to the mortgagor, in case of a sale under § 88, produces exactly the opposite conviction in our minds. If such sale were the first sale under the mortgage, and made directly to satisfy it, the overplus would clearly belong to the mortgagor without any such proviso in his favor; why, then, was it inserted in that section ? Evidently for the reason that by the sale which had already taken place under § 87, his equity of redemption had been cut off, and without it he would not be entitled to such over-plus. The state was pursuing a remedy for the collection of a debt justly due, and when that object was attained was satisfied. No speculation arising either out of the misfortunes or negligence of the mortgagor was sought, and hence the generous provisions, that on such re-sale the surplus, if any, should belong to him, though his equity of redemption, and consequent legal right to such surplus, was, in fact, gone.
Again, since it is clearly contemplated by the statute, that [13]*13the state may become the purchaser, it may be inquired when and how it is to do so, if not under § 87 ? The commissioners are nowhere authorized to bid, except where the lands are offered under that section, and if the sale does not take place at the time and place of bidding, when and where does it take place ? But we have pursued this branch of the inquiry far enough, we think, to satisfactorily establish that a sale to the state is contemplated by §§ 87 and 88, as well as a mere bidding by the commissioners.
In passing upon this question we are reminded of the rule which requires us to look to contemporaneous construction, and to the interpretation of those officers whose immediate duty it is made by law to act under and give construction to a statute. In doing so, we think our views not only fully sustained by the action of the commissioners in this case, but by those of the counsel for the defendant, at the time of drawing the answer in this suit.
It appears in the bill of exceptions from a certified copy of a memorandum of sale, filed or recorded in the office of the commissioners, marked “
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By the Court,
DixoN, C. J.
The first and most important question which arises in this case is whether, under the provisions of §§ 87 and 88 of chapter 24 of the statutes of 1849, there was in the first instance a sale of the lot in question to [10]*10the State, and subsequently a re-sale to the defendant, or whether the sale was made to the defendant directly on satisfaction of the mortgage. The latter proposition is very ingeniously and strenuously urged by the counsel for the defendant. The 86th section provides that “ on failure to pay any interest or principal when due, on any such mortgage, the commissioners shall advertise' the mortgaged property for sale;” the 87th section, that “ at the time appointed for such sale, one or more of said commissioners shall attend, and they shall make sale of so much of the mortgaged premises to the highest bidder, for cash, as will pay the amount due for principal, interest, damages and costs of advertising and selling the same and the 88th section, that “ in case no one will bid the full amount due as aforesaid, the commissioners present shall bid on the same on account of the proper fund; and as soon thereafter as may be, shall sell the same to the highest bidder for cash, or on a credit of five years, interest being payable annually in advance.”
It is contended that the authority or requirement of the commissioners in the 88 th section to bid on the same in case no one will bid the full amount due, is not intended as a sale to the State; but simply as a bid to prevent the mortgaged premises from being struck off under the 87th section at a sacrifice, and for less than the sum due to the State, to the injury and detriment of the fund; and for the further purpose of enabling them to sell the same on a credit, in case no further cash bids for the full amount shall be made.
Again, it is claimed that this view is strengthened by the provisions of § 89, which declares that “the sale authorized in the preceding section, shall not be for a less amount than the sum chargeable on said land, and if for more, the over-plus shall be paid to the mortgagor, his heirs or assigns.” It is said that the provision in this section for the payment of the “ overplus to the mortgagor, his heirs or assigns,” shows [11]*11that his equity of redemption is not yet lost, and that a sale under section 88 is virtually a sale under the mortgage, and not a sale made by the State independently of the mortgage, after it had acquired title; and, therefore, it is claimed that no statement of a sale to the State made out and signed by the commissioners was necessary to be given in evidence to sustain the title of the defendant. In these views we feel compelled as we think for very obvious reasons to differ with the counsel.
In the first place § 87 is mandatory. It commands the commissioners to make sale at the time appointed for the sale. The sale provided for in the 88th section need not necessarily be at the time appointed for the sale under the 87th section. It may well be doubted whether under a fair construction of § 87, and without the limitation upon the authority of the commissioners contained in § 88, they would be authorized to sell the mortgaged premises for cash, for a less sum than the total amount of the principal, interest, damages and costs.
Section 87 being mandatory, and requiring the commissioners to make sale at the time appointed; section 88 provides that in case no one will bid the full amount due, or what would amount to the same thing, in case there should be no bidders, that then the commissioners “ shall bid on the same on account of the proper fund/5 and thus the requirements of § 87 are in all cases complied with, and a sale is made. The word “ bid/5 as here used, when construed with reference to the requirements of § 87, seems to imply that there is to be a sale. If the object was to enable the commissioners to sell upon credit, it is difficult to see why that could not have been provided for in the first instance, and as well without as with this idle ceremony of bidding. We think the object of requiring the commissioners to bid was to enable them in. all cases to make sale, and thus cut off the mortgagor’s equity of redemption. The commissioners, in pur[12]*12chasing the mortgaged premises for the state, were not required to bid the full sum due, but might in their discretion bid such sum as they, in view of their situation and value, deemed most for the interest of the state, and thus hold the mortgagor personally liable for the deficiency, in case the state should fail to realize the whole amount due from a re-sale of the premises.
If, in reality, as is contended, there is but one sale provided for, that sale would be governed by the provisions of § 89, and then it would follow that the mortgaged premises, regardless of their value, could in no base be sold for a less sum than the total amount of the principal, interest, damages, and costs, and thus, though the state should fail to realize even a tithe of its debt, the mortgagor would be discharged from all liability to pay any portion of it. This, obviously could never have been the intention of the legislature.
The argument to be drawn from the provision in the 89th section, for the payment of the overplus to the mortgagor, in case of a sale under § 88, produces exactly the opposite conviction in our minds. If such sale were the first sale under the mortgage, and made directly to satisfy it, the overplus would clearly belong to the mortgagor without any such proviso in his favor; why, then, was it inserted in that section ? Evidently for the reason that by the sale which had already taken place under § 87, his equity of redemption had been cut off, and without it he would not be entitled to such over-plus. The state was pursuing a remedy for the collection of a debt justly due, and when that object was attained was satisfied. No speculation arising either out of the misfortunes or negligence of the mortgagor was sought, and hence the generous provisions, that on such re-sale the surplus, if any, should belong to him, though his equity of redemption, and consequent legal right to such surplus, was, in fact, gone.
Again, since it is clearly contemplated by the statute, that [13]*13the state may become the purchaser, it may be inquired when and how it is to do so, if not under § 87 ? The commissioners are nowhere authorized to bid, except where the lands are offered under that section, and if the sale does not take place at the time and place of bidding, when and where does it take place ? But we have pursued this branch of the inquiry far enough, we think, to satisfactorily establish that a sale to the state is contemplated by §§ 87 and 88, as well as a mere bidding by the commissioners.
In passing upon this question we are reminded of the rule which requires us to look to contemporaneous construction, and to the interpretation of those officers whose immediate duty it is made by law to act under and give construction to a statute. In doing so, we think our views not only fully sustained by the action of the commissioners in this case, but by those of the counsel for the defendant, at the time of drawing the answer in this suit.
It appears in the bill of exceptions from a certified copy of a memorandum of sale, filed or recorded in the office of the commissioners, marked “ sale of forfeited mortgaged lands,” that the lot in question was sold on the 18th day of November, 1857, to the State, and the amount bid for principal, interest, damages, and costs, are particularly stated. It, in like manner, appears from a similar memorandum, marked “ resale of land,” that the premises were again sold on the same day to the defendant, and the like, particulars of the sale appear. It is alleged in the defendant's answer, that the lot in question was offered for sale at auction, that no one would bid the amount due, and that, therefore, the commissioners present bid on the same and the same, " was then and there duly struck off to the state;” and that the same was again offered for sale, and the defendant became the purchaser. The answer further states, that at the time the lot was so bid in by the commissioners for the state, a statement of such [14]*14sale was made out and signed by them, and recorded in their office. Thus it not only appears that such has been the construction given by the commissioners, but that the defendant, by his answer, has rested his defense upon showing that such sale to the state was, in fact, made.
The 91st section provides that “a statement of such sale shall be made out and signed by said commissioners, and shall be recorded in their office, and such record, or a copy thereof, authenticated by the certificate of the commissioners, shall be received as evidence of the matters therein contained;” and the 92d section, that “ when any land is bid off by the state at such sale, no deed need "be made therefor to the state; but the statement of such sale, and the record thereof, made as in the preceding section required, shall vest the title in the state for the use of the school fund.” Was any such statement introduced or offered in evidence on the trial of this cause? That which most nearly approaches it, is the memorandum which we have above referred to. It that be not the statement, there was none. A fatal objection to that is, that it was not signed by the commissioners or either of them. It does not purport to have been the official act of any person or officer; but, on the contrary, appears to be' a mere auctioneer’s memorandum, made for the use and convenience of the clerks and others engaged in, and who were familiar with the mode of transacting the business of the school land office.
Without attempting to decide what facts should appear in such statement, we would remark that if even this was signed by the commissioners, it does not appear to be such a solemn and official statement of facts as wisdom and sound policy would dictate in an instrument which, for all time, is to be the sole and exclusive evidence of title to real estate.
Upon the question of actual possession being required in order to enable the plaintiff to maintain this action, we are [15]*15of opinion that the possession declared by the pleadings and evidence, viz: that of tenants holding under the plaintiff,is sufficient for the purpose. It follows from the view we have taken of this case, that the plaintiff is entitled to the relief demanded in his complaint, and that the judgment of the circuit court must be reversed.
The judgment of the court below, is, therefore, reversed, with costs, and the cause remanded for further proceedings therein, in accordance with this opinion.