State ex rel. Lewis v. Williams

39 Kan. 517

• Court: Supreme Court of Kansas
• Decided: January 15, 1888
• Status: Published

Opinion

The opinion of the court was delivered by

Johnston, J.:

1. Fraud charged; specifi The sale of school lands sought to be set aside in this action does not depend upon a settlement or upon the improvements made thereon by the purchaser. The only specific facts alleged in the petition as grounds for invalidating the sale are, that the petition presented to the county superintendent requesting him to cause a sale of the land was not sufficient, and that proper appraisers were not appointed. It is said that of the persons whose names were appended, only seventeen were at the time of presentation legal householders of the township in which the land is situate; and also that the appraisers were not at the time of their appointment disinterested householders. These are substantially the same defects that were alleged against the petition and appraisement in the recently-decided case of The State, ex rel., v. Dennis, ante, p. 509; and much of what is there said applies here. It is not alleged in the case at bar that the officers who passed upon the petition, and who appointed the appraisers,' were actuated by any fraudulent or improper motives; nor is it alleged that the state suffered any injury or loss by reason of the irregularity set forth. It is true that there were general charges of fraud and illegality, but the facts upon which the charges are based are not stated. It is alleged that the certificate is fraudulent in this, “that said land was unlawfully advertised for sale, and unlawfully offered for sale, and unlawfully sold by the county treasurer of Pratt county, Kansas.” The pleader did not undertake, however, to state, and we are unable to learn from the petition, wherein the advertising, offering for sale, and sale of the land were defective or fraudulent. There are other charges of illegality in the petition, but there areno accompanying facts to inform the court in what the illegality consists. Allegations of fraud and illegality, without a statement of the facts constituting the same, are mere legal conclusions and. oí no iorce in a pleading. No issue is presented by such averments, and no proof is admissible thereunder. (L. L. & G. Rld. Co. v. Comm’rs of Douglas Co., 18 Kas. 169; Clark v. Dayton, 6 Neb. 192; Pelton v. Bemis, 44 Ohio St. 51; Ockendon v. Barnes, 43 Iowa, 615; M. & C. Rld. Co. v. Neighbors, 51 Miss. 412; Smith v. Lockwood, 13 Barb. 209; Bliss, Code Pl., §§ 213, 334; Pom. Rem., § 530.)

2. Action to cancel contract-consideration paid to be repaid. Treating these general averments as surplusage, no wrong is imputed to either the purchaser or to the officers. It is not claimed that the defendant participated in the proceedings preliminary to the sale, or that he had any knowledge of the alleged defects therein. The several officers intrusted with the authority and duty of determining upon a sale and in conducting the same are presumed to have performed their duty honestly and faithfully until the contrary is alleged and shown. They are required to keep a record of their official acts, and in the absence of any allegation to the contrary it will be presumed that the records were regular and did not impart any notice of irregularity or fraud to the purchaser. Aside from this it is not alleged that the plaintiff has returned or offered to return the amount received upon the contract sought to be annulled. The state cannot retain the benefits of a business transaction like this one, and at the same time repudiate it as null and void. A party seeking- . _ 1 J 5s se^ asic*e a contract must pay or tender back all that has been received as consideration on such contract. Failing to restore the consideration paid is an additional reason why the plaintiff’s action must fail. (Jeffers v. Forbes, 28 Kas. 174; The State, ex rel., v. Dennis, ante, p. 509.)

The judgment of the district court must be affirmed.

All the Justices concurring.