By the Court,
Cole, J.
This cause is argued by counsel, in their written arguments, on the hypothesis that a motion to quash the alternative writ has been filed and is now pending in this case. We can find no such motion on file, and the records of the clerk do not show that any such motion was ever made. However, if any such motion was made, in view of the matters set forth in the relation and alternative writ, it would have to be denied. For assuming all the matters set forth in the writ and relation to be true, as a motion to quash necessarily concedes, they show a good and valid sale of the lands therein mentioned to the relator. [347] Tbis being so, be would, as a matter of course, be entitled to tbe certificates of sale from tbe commissioners, as ments of title. Tbe counsel for tbe respondents seem to tbibb that tbe relation does not show a valid sale, because it does not show that tbe commissioners made out a statement of tbe sale, and signed tbe same and caused it to be recorded, and it is insisted that tbis was essential witbin tbe decision in Krebs vs. Dodge, 9 Wis., 1. But tbis is a misapprehension of tbe decision in that case. There mortgaged premises bad been sold and bid in by tbe commissioners to behalf of the state, and it was held that tbe commissioners should make out a proper statement of 'the sale, sign and record tbe same, in conformity to tbe statute, for tbe reason that tbe law required such statement, and it was tbe only record evidence of the title of> tbe lands in tbe state. But when a sale of school lands is made to an individual, then tbe statute authorizes and directs, the commissioners to give certificates of sale. So it is very" clear that tbe case of Krebs vs. Dodge has no bearing upon tbe point whether tbe relation and writ showed a valid sale in tbis cáse. We have already stated that if tbe case stood upon the relation and writ alone, we should be compelled to award a peremptory writ commanding tbe commissioners to issue certificates of sale. But it appears tbe commissioners have made a return to tbe writ, in which they state certain matters in avoidance of the facts set forth in tbe relation, and upon which they rely as a good and sufficient excuse for not issuing tbe certificates h> the relator. And I may add here, that tbis return is not to be found among tbe papers, and we ascertain its contents chiefly from tbe plea of the relator and tbe brief of his counsel, which purports to contain tbe material portion of tbe return. But still we find a plea to tbe return, and tbe cause is submitted in tbis attitude for our decision upon tbe questions raised by tbe pleadings, which we now proceed to give.
Tbe relator’s case is, in substance, that several tracts of school land, described in tbe relation, which bad been sold to one George Beed, bad become forfeited for non-payment of interest due thereon for tbe year 1858 ; that they were duly advertised for sale by tbe commissioners as forfeited [348] lands, and sold at public auction, and struck off to bim as . tbe bigbest bidder; tbat be deposited with tbe state treasurer tbe several amounts of money to be paid tbereon according to tbe conditions of tbe sale, and demanded tbe usual receipts and certificates of sale.
In tbeir return the commissioners state that a few days before tbe time fixed for tbe sale, Reed, tbe owner of tbe certificates of purchase, informed them tbat be was desirous of redeeming, and intended to redeem tbe land before sale, and requested them to reserve and withhold tbe same from sale until tbe last day of sales of tbe forfeited lands, in order to give bim an opportunity to redeem them ; and tbat they granted bis request, and did then and there promise and agree with Reed to reserve and withhold tbe lands from sale until tbe last day of tbe sales, to enable bim to redeem them from forfeiture. Tbe commissioners allege tbat they caused to be entered in tbe proper books in tbe office of tbe commissioners, tbe fact of sucb reservation, but tbat, through tbe negligence or inadvertence of some of tbe clerks in the office, tbe tracts were put upon tbe sales book without any memorandum of sucb reservation; and by reason thereof, tbe tracts were sold to tbe relator when reached in their order ; but tbat as soon as tbe fact of tbe sale was ascertained, and before tbe last day of the sales, tbe sale to tbe relator was rescinded and set aside, and tbe several tracts reinstated upon tbe sales book, pursuant to tbe agreement of reservation ; and tbat before tbe last day of sales, Reed redeemed the land as required by law, except one tract; and for this reason they refuse to issue certificates of purchase of tbe several tracts to tbe relator.
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By the Court,
Cole, J.
This cause is argued by counsel, in their written arguments, on the hypothesis that a motion to quash the alternative writ has been filed and is now pending in this case. We can find no such motion on file, and the records of the clerk do not show that any such motion was ever made. However, if any such motion was made, in view of the matters set forth in the relation and alternative writ, it would have to be denied. For assuming all the matters set forth in the writ and relation to be true, as a motion to quash necessarily concedes, they show a good and valid sale of the lands therein mentioned to the relator. [347] Tbis being so, be would, as a matter of course, be entitled to tbe certificates of sale from tbe commissioners, as ments of title. Tbe counsel for tbe respondents seem to tbibb that tbe relation does not show a valid sale, because it does not show that tbe commissioners made out a statement of tbe sale, and signed tbe same and caused it to be recorded, and it is insisted that tbis was essential witbin tbe decision in Krebs vs. Dodge, 9 Wis., 1. But tbis is a misapprehension of tbe decision in that case. There mortgaged premises bad been sold and bid in by tbe commissioners to behalf of the state, and it was held that tbe commissioners should make out a proper statement of 'the sale, sign and record tbe same, in conformity to tbe statute, for tbe reason that tbe law required such statement, and it was tbe only record evidence of the title of> tbe lands in tbe state. But when a sale of school lands is made to an individual, then tbe statute authorizes and directs, the commissioners to give certificates of sale. So it is very" clear that tbe case of Krebs vs. Dodge has no bearing upon tbe point whether tbe relation and writ showed a valid sale in tbis cáse. We have already stated that if tbe case stood upon the relation and writ alone, we should be compelled to award a peremptory writ commanding tbe commissioners to issue certificates of sale. But it appears tbe commissioners have made a return to tbe writ, in which they state certain matters in avoidance of the facts set forth in tbe relation, and upon which they rely as a good and sufficient excuse for not issuing tbe certificates h> the relator. And I may add here, that tbis return is not to be found among tbe papers, and we ascertain its contents chiefly from tbe plea of the relator and tbe brief of his counsel, which purports to contain tbe material portion of tbe return. But still we find a plea to tbe return, and tbe cause is submitted in tbis attitude for our decision upon tbe questions raised by tbe pleadings, which we now proceed to give.
Tbe relator’s case is, in substance, that several tracts of school land, described in tbe relation, which bad been sold to one George Beed, bad become forfeited for non-payment of interest due thereon for tbe year 1858 ; that they were duly advertised for sale by tbe commissioners as forfeited [348] lands, and sold at public auction, and struck off to bim as . tbe bigbest bidder; tbat be deposited with tbe state treasurer tbe several amounts of money to be paid tbereon according to tbe conditions of tbe sale, and demanded tbe usual receipts and certificates of sale.
In tbeir return the commissioners state that a few days before tbe time fixed for tbe sale, Reed, tbe owner of tbe certificates of purchase, informed them tbat be was desirous of redeeming, and intended to redeem tbe land before sale, and requested them to reserve and withhold tbe same from sale until tbe last day of sales of tbe forfeited lands, in order to give bim an opportunity to redeem them ; and tbat they granted bis request, and did then and there promise and agree with Reed to reserve and withhold tbe lands from sale until tbe last day of tbe sales, to enable bim to redeem them from forfeiture. Tbe commissioners allege tbat they caused to be entered in tbe proper books in tbe office of tbe commissioners, tbe fact of sucb reservation, but tbat, through tbe negligence or inadvertence of some of tbe clerks in the office, tbe tracts were put upon tbe sales book without any memorandum of sucb reservation; and by reason thereof, tbe tracts were sold to tbe relator when reached in their order ; but tbat as soon as tbe fact of tbe sale was ascertained, and before tbe last day of the sales, tbe sale to tbe relator was rescinded and set aside, and tbe several tracts reinstated upon tbe sales book, pursuant to tbe agreement of reservation ; and tbat before tbe last day of sales, Reed redeemed the land as required by law, except one tract; and for this reason they refuse to issue certificates of purchase of tbe several tracts to tbe relator.
It is now claimed and insisted tbat, admitting tbe return of tbe commissioners to be true, it shows no valid excuse for not issuing certificates of purchase to tbe relator, because, it is said, tbe commissioners bad no power to reserve tbe lands to tbe last day of sales, but must sell them in tbeir order according to tbe statute. If this be a correct view of the law regulating tbe sales of forfeited school lands, tbe relator must prevail. Sec. 9, chap. 24, R. S., 1849, is relied on to sustain this position. Tbat section provides tbat tbe order of sale at auc[349] tion of tbe school and university lands, shall be to begin at the lowest number of the sections, townships and ranges in county, and proceed regularly to the .highest until all then to be sold are offered for sale. We are of the opinion that this section was not intended to refer to and regulate the sale of forfeited lands, but related to the first sale of the school lands which took place in the county. The legislature were speaking, in the previous sections, of the first sale, and prescribing the manner of conducting it, and where large quantities of land were to be sold, as was the case in some counties, the convenience of bidders and of the commissioners would be best promoted by some uniform rule or order of sale. This the legislature intended to provide for in prescribing the order of sale in this section. But the reason for adhering to a fixed order of sale" would lose its force when applied to the sale of separate or scattered pieces of forfeited lands. It was probably "iiot expected that many lands would be forfeited, and therefore the prescribing of the-order in which such lands should be sold was deemed an immaterial matter. And this view is strengthened by the fact that the legislature afterwards changed the law in regard to the sale 'of the forfeited lands, by authorizing their sale either in the county where they were situated or at Madison (chapter 43, Law's of 1853; chapter 22, Laws of 1855), and adopted a different mode of selling the forfeited lands, in some respects, from what had theretofore obtained. By the subsequent legislation, no order of sale of the forfeited lands is prescribed, this matter being left to the discretion of the commissioners. So whatever reason there might be for saying that under the Bevised Statutes of 1849, the commissioners were required to sell the forfeited lands in the order prescribed for selling the lands in the first instance, there can be no ground for holding, after the above enactments, that the order of sale was inflexible when the tracts mentioned in the relation were to be sold, and that the commissioners had no power to change this order for any cause. ’ The commissioners had the right to postpone the sale of the Heed lands until the last day of sale, if they thought proper to do so. This, it seems, they [350] ™^orme<^ him would- do, and be relied upon this un- and did not redeem before tbe lands bad been soi¿ to tbe relator by a mistake. When tbe mistake was discovered, tbe sale was set aside, and Eeed was permitted to redeem witbin tbe time agreed npon. In this case we see no violation of duty on tbe part of tbe commissioners, nor any unauthorized exercise of power on their part. It seems to be strictly analogous to a sale in chancery, where,. from some mistake or surprise, a party interested in tbe premises has been prejudiced, and where courts grant relief by setting tbe sale aside. Such is our view of that transaction, and that tbe commissioners acted properly in tbe premises.
In tbe absence of tbe answer, and being somewhat in tbe dark as to tbe issues raised by it and tbe plea of tbe relator, we can make no final order further than to deny tbe motion to quash tbe alternative writ, and leave the parties to pursue their rights as they may think proper after this expression of our opinion upon some of tbe questions involved in tbe case.