Bradley v. Case.

Townships, for the use of Schools." The first section of this act is in these words: "Be it enacted by the people of the State of Illinois, represented in the General Assembly, that, so soon as the Congress of the United States shall assent, that section numbered sixteen, in each and every township, or such lands as may have been, or which may hereafter be selected in lieu thereof, granted to the inhabitants of each and every township, for the use of schools, may be sold; and when that fact shall be known to the Governor, it shall be the duty of the Governor to announce the same to the inhabitants of the State, by a proclamation, published in all the newspapers in the State, for three weeks successively.'

Here is an express admission on the part of the legislature, made ten years after the grant of these school lands, that the State could not make a sale of the lands, until Congress should assent; and such assent was to be announced by the Governor's proclamation. The said act proceeded to make it the duty of the county commissioners' court, on proclamation being made, as aforesaid, to appoint a school commissioner in each county, who is authorized to sell at public auction, section sixteen, in any township, upon petition being made to him, signed by nine-tenths of the freeholders and householders of such township. And the Governor shall execute patents for the land so sold, which shall completely vest in the purchasers the fee simple, a sure, perfect, and absolute title to the land so purchased and patented. The said commissioner is directed to loan the purchase money for the best and highest interest he can get upon personal security, in sums not exceeding one hundred dollars; sums exceeding that amount, to be secured by mortgage on real estate.

Congress did not assent to the sale of said school lands, and, therefore, the said last mentioned act did not go into effect. But on the 15th February, 1831, the legislature passed an act to amend the said last mentioned act, by repealing the first section, and some other parts thereof; and declaring that the provisions of the act of 22d January, 1829, should be carried into effect, and sales made, and patents issued, as fully as if Government had assented to the sale, provided, that no land should be sold, unless petitioned for by three-fourths of the white male inhabitants in the township, over twenty-one years of age; and that no sale of such lands shall be made in any township, unless the same contains at least fifty white inhabitants.

By an act, passed 1st March, 1833, the law requiring the school lands to be valued and appraised before sale, is repealed; and the only provision now is, that they shall not be sold for less than one dollar and twenty-five cents per acre.

By an act of January 12th, 1833, the commissioner may sell the said lands on a credit of one, two, and three years.

It will then be seen that the legislature of Illinois, up to the 15th February, 1831, conceded that they had no right to authorize a sale

Bradley v. Case.

of the school sections, until the assent of Congress should first be obtained. It is not known what occasioned the legislature at that time to change their views, and assume the power to sell these lands, without the assent of Congress. Since that time, a most shameful sacrifice of these lands has been made. A few of the first settlers of a township, (fifty souls are sufficient) if the school section is good timber land, form a combination, for the division of the land among themselves, and agree that no one shall bid more than one dollar and twenty-five cents an acre. They then petition for a sale; purchase in the land at one dollar and twenty-five cents an acre, on credit; go security for each other; strip it of its timber; and, in many instances, never pay for the land. The fund is thus wasted, and no schools are established. The statement from the Auditor's Office shows that the sixteenth sections amount in the aggregate to 1,007,980 acres of land; that there have been sold, under the above recited laws, 299,802 acres; and that there remains unsold 708,178 acres; so that there is yet time for this Court to interfere, and save the greater portion of this rich heritage for posterity.

Having thus stated the facts, and legislation of Congress and the State, in relation to the said school lands, I will proceed to examine the law on the subject.

These lands are a charity. The United States are the donors, or the patrons. The State is the trustee, which stands seized of the land, for the use of the inhabitants of the township, for the use of schools. The schools are the beneficiaries.

The trustees of a charity have no authority to make an absolute disposition of the charity estate. They cannot part with lands to a purchaser, and substitute, instead, the reservation of a rent. And, as the trustees may not alien absolutely, so they may not accomplish the same end indirectly, by demising for long terms, as for 999 years; or for terms of ordinary duration, with covenants for perpetual renewal. Lewin on Trusts 403.

A trustee has no right to alter the nature of the trust property, as by changing land into money, or money into land. 2 Tuckers' Com. 457; 7 Bac. Abr. 153.

The power of the trustee over the legal estate vested in him, exists only for the benefit of the cestui que trust. No act, or negligence, of the former, can prejudice or narrow the title of the latter. 2 Tucker's Com. 436, and the authorities there cited.

In 2 Fonblanque 167, the preceding doctrine is clearly laid down. See also 3 Peters 119.

The case of the Town of Pawlett v. Clark et al., 9 Cranch 292, is an authority, which seems to me, to settle the case now under consideration. There was a grant by the crown, of " one share (of land) for a glebe, for the church of England, as by law established." Justice Story, in delivering the opinion of the Court in that case, says, "The glebe could not, before the erection of the church, be aliened by the crown, without their (the parish's) con

Bradley v. Case.

sent. Nor after the erection of a church, and the induction of a parson, could the glebe be aliened, without the joint consent of the crown, as patron, the parson, as persona ecclesiæ, and the parishioners of the church, as having a temporal, as well as spiritual interest; and thereby, in effect, representing the ordinary." Again, he says, "After such a grant, executed in the parson, it would become a perpetual inheritance of the church, not liable, even during a vacancy, to be diverted; though, by consent of all parties interested, viz., the patron and ordinary, and also the parson, if the church be full, it might be aliened, or incumbered."

It has been contended, by those who advocate the other side of this case, that these school sections were not a donation by the General Government, but that the State purchased them, and paid a full equivalent, by surrendering the right of taxation of the lands sold by Government, for five years; and that, therefore, the authorities above cited, in relation to charities, do not apply. In answer, I would say, first, that the said lands were a donation; secondly, that whether the State did or did not pay for them, she accepted of the grant in trust, and cannot pervert the trust.

The act of the legislature of Illinois, of 1831, authorizing the sale of those lands, was a clear breach of trust. Congress originally stood seized of the school lands, and it had a perfect right to deal with them in its discretion, by an absolute sale, or by a grant of them in trust for charitable uses; and it was competent for Congress to make any State legislature a trustee to be seized for any charitable use; and if the State accepts of the grant, as such trustee, it is as much bound to sustain and execute the trust, in good faith, as any private individual would be, in a like case. The members of a legislature are as much bound by the laws of moral obligation, in their official capacity, as they are when acting as private individuals. The State cannot, with impunity, violate a trust. The sales that have been made in breach of said trust, would be adjudged to be void in a court of competent jurisdiction.

WILLIAM THOMAS, for the appellee:

Actions were commenced in the Circuit Court, by the appellee against the appellant, upon notes executed for the consideration agreed to be paid for parts of a sixteenth section; and the defence relied on was, that the sale was void, because the legislature had no power to authorize such sales. Upon demurrer to the pleas making this question, the Circuit Court decided the causes in favor of the defendant in error.

It is insisted by the appellant, that the legislature has exceeded its authority, in attempting to authorize the sale of these sections; and that, therefore, purchasers are not bound to pay for them.

By the act of Congress, of the 18th April, 1818, entitled "An Act to enable the people of the Illinois Territory to form a Constitution and State Government, and for the admission of such State

Bradley v. Case.

into the Union, upon an equal footing with the original States," it is provided, "That section numbered sixteen, in every township, and when such section has been sold, or otherwise disposed of, other lands, equivalent thereto, and as contiguous as may be, shall be granted to the State, for the use of the inhabitants of such township, for the use of schools." This grant, being accepted by the State, became obligatory upon the National, as well as the State Government. R. L. 50. The appellee insists upon the following propo

sitions:

First. The legal title to the land is vested in the State, as trustee, without any other restriction than the use to which the land may be applied.

Second. The trustee may use the trust fund according to the wishes, or directions of the cestui que use. 2 Christan's Blac. Com. 328 1 Cruise's Dig. 350-1.

Third. Two estates were created by the act of Congress, viz., legal and equitable. The former is vested in the State; the latter in the inhabitants of the township. Legislative action was therefore necessary, to reduce the subject of the grant into possession, and place it in a position to be used.

Fourth. The inhabitants of the township cannot assemble in mass and use, or direct the mode of using, the school lands; the power and right to use the lands must necessarily depend upon legislative action. The Town of Pawlett v. Clark et al., 3 Peters' Cond. R. 408; 9 Cranch 292;

Fifth. The act of Congress does not convert the inhabitants of the township into a body politic, or corporate; nor does it attempt to confer any power of action upon such inhabitants.

In the truth, or upon the assumption of the foregoing propositions, will be found the reasons for the action of the legislature. The first act on this subject was passed 22d January, 1829. Acts of 1828-9, 50. In passing this act, the legislature assumed that the consent of Congress, as well as of the inhabitants of the township, was necessary, before any sale could be made; and, therefore, provision was made for sales, "so soon as the Congress of the United States shall assent, and nine-tenths of the legal voters of the township shall petition for the same. The second act was passed 15th February, 1831, (1) which provides for sales without the assent of Congress, upon the petition of three-fourths of the legal voters of the township. The third act, passed 12th January, 1833, (2) provides for selling on credit, and contains no other pro

vision.

By these acts, the inhabitants of townships are authorized to consent to a sale of the school lands held in trust for their use. Provision is made for executing the trust on the part of the State, and for using the money arising from the sale of the trust property, for

(1) Laws of 1830-1.

(2) R. L. 566, Gale's Stat. 633.

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the support of schools. Upon the request of the inhabitants of the township, the lands are sold; the purchaser obtains a patent from the State, which the law declares, "shall completely vest in the purchaser, or purchasers, a sure, perfect, and absolute title."

Upon the foregoing premises, the appellee insists upon the folthe following propositions :

First. That the State, and the inhabitants of the township are bound and concluded, by action under the laws; that the State cannot make or repeal patents; and that the inhabitants of the township cannot act in the premises, except by authority of the State.

Second. The rights of purchasers under the law, cannot be divested, or impaired by any act of the legislature, or the inhabitants of the township, or of both together, because both are concluded by their action.

Third. Where two estates exist in different persons competent to contract, the whole estate will pass, and become united, by a conveyance of the parts to one person. Douglass 771-2; 2 Christan's Blac. Com. 177; 2 Burr. 1898.

Fourth. Assuming that the State is bound and concluded by its own action in the premises, the purchaser of the sixteenth section acquires the legal title; and admitting that subsequent inhabitants of a township are not concluded by the acts of their predecessors, still the purchaser stands in the place of the State, and holds the land subject to the same use for which the State holds it; and whilst he is permitted to enjoy the benefits of his purchase, he cannot withhold from the township the purchase money. And this view of the subject shows that the remedy of the appellant (if any he has) is in a court of equity.

Fifth. The legal existence of the inhabitants of townships depends upon legislation. They can neither do nor suffer any act, without authority from that department; and this case is now presented before the Court, in which the attempt is made to place them in a position to lose the land granted for their use, as well as the price agreed to be paid for it by purchaser. The legal title to the land being vested in the purchaser, he cannot defend in this Court. Jackson v. Van Dalfsen, 5 Johns. 43; 14 Johns. 415.

Sixth. If the defence be regarded as resting upon the ground that the notes were given without consideration, the facts stated disprove this assumption. If it rests upon the ground of failure of consideration, the answer to this view of the subject is, that the notes were given to a third party; and that the second party is liable upon the warranty in the patent, in case the land is lost. The liability of the State upon the covenant contained in the patent, is a continuing consideration for the promise to pay the purchase money; and whilst this liability exists, the plea of failure of consideration cannot be sustained. Young v. Triplett, 5 Littell 247; Snyder v. Laframboise, Breese 268; Kelson v. Fry, 4 Bibb. 493; 3 J. J. Marshall 112; Greenleaf v. Cooke, 4 Peter's Cond. R. 8.