GOLDTHWAITE, J.
The declaration in this cause, contains two counts in assumpsit, one a general indebitatus, and the other, special, on a contract therein set out. A* demurrer was interposed in the Court below, on which judgment was rendered for the defendant, and this judgment is now sought to be reversed.
The indebitatus count, is for one hundred and sixty acres of land, alleged to have been sold by the plaintiffs to the defendants, and presents the general question, whether they can hold lands, in any way or under any circumstances, whatever; for if they are enabled to hold lands, it would seem difficult to resist the conclusion, that they were au-thorised to sell them; on the other hand, it seems clear, if the plaintiffs are in no case authorised to be the owners of lands, they cannot maintain as-sumpsit for the sale of that which could not belong to them.
By the several acts in relation to schools and school lands,
[174]*174By no part of the several acts in relation to school and school lands, are these corporations invested with the power to hold lands. The legal title in the sixteenth section, is in no wise transferred to them, if indeed it could he, and the same seems to remain in the inhabitants at large, of each township. Indeed, any inference of a power to purchase and hold lands, by virtue of their special corporate powers, is removed by the fact that this power is directly given to the trustees of the several school districts, in the respective townships, which are constituted special corporations by the same act, and are empowered to hold lands, not exceeding two acres, for school purposes. If the intention was to confer this power on the school commissioners, it is difficult to assign any reason why it was omitted in the act.
If the case was one of first impression, we should feel no hesitation in deciding that a special corporation, so constituted, had no capacity to take or hold lands, and consequently, no power to sell and convey, but we are warranted by authority in the positions which we lay down.
Chancellor Kent recognizes the rule, that statute corporations cannot take and hold real estate, for purposes foreign to their institution.* The same principle was held by the Supreme Court of New York, in the case of Jackson vs Hartwell.†
Some difficulty arises in the consideration of this eoúnt, because the statutes we have before referred to, authorise the school commissioners, when the consent of the inhabitants of the township shall be obtained, to sell the sixteenth section; but this is [175]*175removed, when we ascertain from the law, that this power of sale is entirely naked, creating no interest whatever, in the school commissioners, and not even permitting them to receive the proceeds of sale, and directing the notes therefor, to be made payable to the President and Directors of the Bank of the State of Alabama.
Another view which can be taken of the statute, entirely obviates any difficulty on this subject. The school commissioners have no authority to dispose of the sixteenth section, unless a certain price be obtained; and not even then, can a certificate of purchase be given by them, unless notes payable in one, two, three and four years, bearing interest at the rate of six per cent, per annum, with two securities be given. — (See Sec. 35. Title, schools and school lands.*)
This provision is evidently intended for security of the inhabitants of the township, and the act would be effectually evaded and rendered inoperative, if the plaintiffs could sue for the purchase money of the lands sold — no security would be given, and the time of credit might be prolonged by a suit.
For these reasons, we are of opinion, that the general indebitatus count, cannot be supported.
The special count, presents questions which are novel, and in some respects, difficult of solution.
From this it appears, that the inhabitants of the township, for which the plaintiffs are school commissioners, had determined in the manner prescribed by law, to give their consent to a sale of the sixteenth section, and the statutory proceedings [176]*176being first had, the plaintiffs after affixing a minimum price on the several lots into which the section was divided, proceeded to sell the same, in conformity with the requisitions of the law.
It alleges, “that the conditions of sale, were published aloud in the presence and hearing of all who had assembled at the sale.” These conditions were those proscribed by the act authorising the sale, and “that any person or persons, bidding off any lot or lots of the land, and failing to comply with the said terms of sale, by giving their notes, with approved security, the lot or lots, would be re-sold, and the first purchasers held responsible.”
It then alleges that the defendant became the purchaser of lots, numbered .six and eight, for the first of which he bid ten dollars and one cent per acre, and for the last, he bid seven dollars per acre, at which prices they were struck down to him.
The minimum price of these lots, was six dollars for the first, and six dollars and fifty cents, for the'last.
The count then alleges that the defendant wholly refused and neglected to comply with the conditions of the sale, and did not nor would give his notes, toith approved security, as provided by law. It then states that a re-sale took place, after a lapse of more than three months, on the same conditions, at which sale these two lots were sold; the first for three dollars per acre, and the last, for two dollars and seventy-five cents per acre, of which the defendant had notice.
The count then concludes with a super se as-sumpsit, for the difference between the two sales— [177]*177and the breach of the contract is alleged to be the’ non-payment of the several sums of money mentioned in each count.
It is urged against this count, that the plaintiffs are not authorised by any law, to maintain any suit for any breach of contract, relative to the sale of the sixteenth section, because the authority is given to another corporation to receive the money. But we think this does not follow as a consequence — ■ if it did any person could at pleasure, become a purchaser and violate his contract with impunity, or the sale of the section might be delayed or entirely prevented, by one disposed to retard the action of the commissioners.
The general object of all the statutes, in relation to schools and school lands, seems to be to enable the school commissioners, to act for the' township, in all matters relating to the sixteenth section; and we are satisfied
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GOLDTHWAITE, J.
The declaration in this cause, contains two counts in assumpsit, one a general indebitatus, and the other, special, on a contract therein set out. A* demurrer was interposed in the Court below, on which judgment was rendered for the defendant, and this judgment is now sought to be reversed.
The indebitatus count, is for one hundred and sixty acres of land, alleged to have been sold by the plaintiffs to the defendants, and presents the general question, whether they can hold lands, in any way or under any circumstances, whatever; for if they are enabled to hold lands, it would seem difficult to resist the conclusion, that they were au-thorised to sell them; on the other hand, it seems clear, if the plaintiffs are in no case authorised to be the owners of lands, they cannot maintain as-sumpsit for the sale of that which could not belong to them.
By the several acts in relation to schools and school lands,
[174]*174By no part of the several acts in relation to school and school lands, are these corporations invested with the power to hold lands. The legal title in the sixteenth section, is in no wise transferred to them, if indeed it could he, and the same seems to remain in the inhabitants at large, of each township. Indeed, any inference of a power to purchase and hold lands, by virtue of their special corporate powers, is removed by the fact that this power is directly given to the trustees of the several school districts, in the respective townships, which are constituted special corporations by the same act, and are empowered to hold lands, not exceeding two acres, for school purposes. If the intention was to confer this power on the school commissioners, it is difficult to assign any reason why it was omitted in the act.
If the case was one of first impression, we should feel no hesitation in deciding that a special corporation, so constituted, had no capacity to take or hold lands, and consequently, no power to sell and convey, but we are warranted by authority in the positions which we lay down.
Chancellor Kent recognizes the rule, that statute corporations cannot take and hold real estate, for purposes foreign to their institution.* The same principle was held by the Supreme Court of New York, in the case of Jackson vs Hartwell.†
Some difficulty arises in the consideration of this eoúnt, because the statutes we have before referred to, authorise the school commissioners, when the consent of the inhabitants of the township shall be obtained, to sell the sixteenth section; but this is [175]*175removed, when we ascertain from the law, that this power of sale is entirely naked, creating no interest whatever, in the school commissioners, and not even permitting them to receive the proceeds of sale, and directing the notes therefor, to be made payable to the President and Directors of the Bank of the State of Alabama.
Another view which can be taken of the statute, entirely obviates any difficulty on this subject. The school commissioners have no authority to dispose of the sixteenth section, unless a certain price be obtained; and not even then, can a certificate of purchase be given by them, unless notes payable in one, two, three and four years, bearing interest at the rate of six per cent, per annum, with two securities be given. — (See Sec. 35. Title, schools and school lands.*)
This provision is evidently intended for security of the inhabitants of the township, and the act would be effectually evaded and rendered inoperative, if the plaintiffs could sue for the purchase money of the lands sold — no security would be given, and the time of credit might be prolonged by a suit.
For these reasons, we are of opinion, that the general indebitatus count, cannot be supported.
The special count, presents questions which are novel, and in some respects, difficult of solution.
From this it appears, that the inhabitants of the township, for which the plaintiffs are school commissioners, had determined in the manner prescribed by law, to give their consent to a sale of the sixteenth section, and the statutory proceedings [176]*176being first had, the plaintiffs after affixing a minimum price on the several lots into which the section was divided, proceeded to sell the same, in conformity with the requisitions of the law.
It alleges, “that the conditions of sale, were published aloud in the presence and hearing of all who had assembled at the sale.” These conditions were those proscribed by the act authorising the sale, and “that any person or persons, bidding off any lot or lots of the land, and failing to comply with the said terms of sale, by giving their notes, with approved security, the lot or lots, would be re-sold, and the first purchasers held responsible.”
It then alleges that the defendant became the purchaser of lots, numbered .six and eight, for the first of which he bid ten dollars and one cent per acre, and for the last, he bid seven dollars per acre, at which prices they were struck down to him.
The minimum price of these lots, was six dollars for the first, and six dollars and fifty cents, for the'last.
The count then alleges that the defendant wholly refused and neglected to comply with the conditions of the sale, and did not nor would give his notes, toith approved security, as provided by law. It then states that a re-sale took place, after a lapse of more than three months, on the same conditions, at which sale these two lots were sold; the first for three dollars per acre, and the last, for two dollars and seventy-five cents per acre, of which the defendant had notice.
The count then concludes with a super se as-sumpsit, for the difference between the two sales— [177]*177and the breach of the contract is alleged to be the’ non-payment of the several sums of money mentioned in each count.
It is urged against this count, that the plaintiffs are not authorised by any law, to maintain any suit for any breach of contract, relative to the sale of the sixteenth section, because the authority is given to another corporation to receive the money. But we think this does not follow as a consequence — ■ if it did any person could at pleasure, become a purchaser and violate his contract with impunity, or the sale of the section might be delayed or entirely prevented, by one disposed to retard the action of the commissioners.
The general object of all the statutes, in relation to schools and school lands, seems to be to enable the school commissioners, to act for the' township, in all matters relating to the sixteenth section; and we are satisfied they have the same right to pursue any remedy in relation to the same, which the inhabitants of the township, could pursue, except in such cases only, where an action is’ contemplated by other persons.
We have already determined, that a general in-debitatus count could not be sustained, because the commissioners had no authority to receive the money for the sale, as if was to be paid to others, under the act of the legislature, and because the township must have the security required,before any title can pass by the sale. These reasons would be equally decisive, when applied to any action at law on the contract, however special [178]*178the declaration might be framed; but they do not apply to any action which' is brought to recover damages for a failure to comply with a legal contract, entered into with the school commissioners. The contract, as such in the present case, could not be enforced in a Court of law, by a recovery of the price, (even if an action could be maintained for the same, until the credit had expired,) because the interests of the township could not be protected by the security required on'a sale; but when the contract is at .end, by the refusal of the purchaser to complete it, by giving his notes, as required, an action would at once lie, and if damages had been the consequence of, the refusal, a recovery could not be prevented. After a purchaser has absolutely refused to comply with the contract of sale, the seller is at liberty to consider the contract at an end, and immediately sue for the damages he has sustained. This rule is perfectly well established as to goods. — Gerard vs Tagart.* — Mussen vs Price.†
But it is unnecessary to determine whether the same principle applies to sales of land in general. So far as this case is concerned, we entertain no doubt but the commissioners were authorised to re-sell the land. Indeed the act of the legislature makes it their duty so to do. The sale was not executed, without the security required was given, and therefore might be considered inoperative, under the act refered to, after a refusal by defendant, to give his notes: and the minimum not having been realised, a re-sale became necessary.
It is also contended, that by annexing a condition of re-sale, the whole contract became void, and [179]*179there was no legal obligation on the defendant to complete it—that one of the consequences which might grow out of such condition, was an act which the commissioners could not perform, as at such resale, the minimum price might not be offered, in which event no sale could be made. This argument, however ingenious, will, when examined, appear to be without foundation. The condition imposed was a lawful one, and was made for the benefit alone, of the commissioners. It was one on which the defendant could not insist, nor could it be faily inferred, that they would extend it to a case, where they would have no authority to make a resale. The whole argument is in fact predicated on the idea, that this condition forms a part of the contract. If so, the defendant might well insist that he had a right to refuse to give his notes, and insist on a re-sale, as the property might sell for more, on the second sale, than it brought at first, and that he was in that event, entitled to the surplus
We are aware, that Mr. Justice Livingston, in the case of Webster & Ford vs Hoban,* seems to have entertained the impression, that it was the purchasers right, to insist on a re-sale, and that he would be entitled to the surplus, if any; but it seems to us that this opinion, has neither reason.nor principle to support it. If it was law, every pauper in the land, would be authorised to purchase at any sale, where this was a condition, and then insist that he was entitled to the chanceof a profit on a re-sale, andrest his right on the contract.
We are not alone in this opinion-—all the English [180]*180cases clearly recognise the principle, that on a resale the first purchaser, has no right to the increased price. *
We think it sufficient to say, in answer to the position, as taken, that the condition is one which is legal, and being made solely for the security and protection of the seller, may be waived by him, without impairing any of his rights, or it may be insisted on when made, in relation to real estate, and the first purchaser held responsible for any deficit .on a re-sale.
If in the case under consideration, the re-sale had produced the minimum price affixed to the several lots, we should determine that the defendant was liable to a recovery in the suit as brought; but as the contract is laid, the liability of the defendant is charged to arise from an illegal' act, or rather void act of the plaintiffs. They had no authority to sell for a less sum than the .minimum, and yet this sale is the foundation of the super se assumpsit, laid in -the declaration.
A re-sale was not necessary to fix the liability of the defendant for a breach of contract, and the action in another form could have been maintained without showing a re-sale: it might be one mode of ascertaining the amount of damages, perhaps the best, but certainly not the only way of ascertaining the same. '
It was said at bar, that this declaration in the special count might conform to this view of ihe case, by striking out all in relation to the subsequent sale, and the super se assumpsit, If this was done, it would [181]*181resemble a declaration in case, but the breach would not be appropriate; and if it was in this form, the action would be case, and there being a count in assumpsit in the ¡declaration, there would be a mis-joinder of action; and this defect would be equally fatal with those pointed out.
The declaration cannot be supported, and the judgment must be affirmed.
.COLLIER, J, not sitting.
Aik. Dig. 370.