Irish v. Lundin. purchase of the lot. This money has been retained, and it is claimed by the seller that Lundin had a mere option to purchase and upon his failing to pay the remaining $600 the payment already made was forfeited and also all of Lundin's rights therein. The attorneys for Wilson contend that this being an oral contract, and Lundin not having possession of the lot, the contract cannot be enforced, and a large part of their brief is taken up with the citation of authorities to sustain that proposition. etc. As a matter of fact, however, Lundin did immediately enter into possession of the lot in question and erected a house thereon of the value of $700 or $800 and the mechanics' liens in suit were created by the erection of said building. The work was nearly completed before the expiration of the ninety days from January 31st, 1888. Lundin seems to have left the state and has failed to pay the balance due on the lot or to the mechanics and material men for the erection of the house. This house is now in the possession of Wilson. She seems to claim the same free from any liens, It is gravely urged that for the privilege of an option on the purchase of a lot more than two miles north of the post-office in the city of Omaha, and for which, so far as appears, the full value was agreed to be paid, Lundin actually paid $200 for the privilege of purchasing the same in ninety days. It is not claimed that he had any property adjoining or near that place that would be enhanced in value by the purchase. The sale was made, therefore, we infer, at the full value of the lot and the $200 paid as one fourth of the consideration therefor. To that extent, therefore, Lundin has an interest in the lot. Forfeitures are odious in law. (Dickenson v. State, 20 Neb., 81; Estabrook v. Hughes, 8 Id., 501; Hibbeler v. Gutheart, 12 Id., 530.) In the latter case it is said, after showing that the lessee was in default: "It was evidently the intention of the legislature, in passing the law con Irish v. Lundin. taining these provisions, to hold the purchasers and lessees of the school lands to the strict performance of the terms of their obligations to the state. And while by the terms of the law all delinquents were limited to thirty days from the receipt of notice of such delinquency in which to remove the same by payment, yet we think it was the policy of the law to allow them to do so at any time before the commencement of suit to dispossess them by the prosecuting attorney, as provided for in the section. While the lessee is in possession, and not proceeded against in the manner provided by law, he is presumed to have rights, and these rights could only be cut off by the method pointed out in the name of the people, and not by proceedings moved by and in the name of an individual designing to become the purchaser or lessee, or otherwise. While the state can have no preferences as between different citizens, yet, as the law does not favor forfeitures, it will always favor the removal of delinquencies, on the part of those already its lessees and in possession, rather than the forfeiture of their rights to make room for others." This we regard as a correct statement of the law so far as it applies to a purchaser of real estate in possession, where he has made a considerable payment on the land and has a subsisting interest therein. While in particular cases, by reason of peculiar circumstances, it is necessary to sustain a forfeiture, yet where any considerable portion of the purchase price of real estate has been paid and possession taken under the contract, the purchaser has an equity in the premises to the extent of the money paid by him, and it is gross injustice to permit the seller to retain this money and also the property free from any claim of such purchaser; and particularly is this true where, by reason of such forfeiture, creditors of the purchaser will be deprived of the amount due them. In an ordinary case this cannot be permitted. The seller is entitled to the price of his property as agreed upon, and the Bonnell v. Nuckolls County. purchaser, upon the payment of such price, is entitled to the remainder. If, however, lawful liens are filed on the interest of such purchaser, as in this case, they must first be satisfied out of the amount due the purchaser before any part of the surplus will be paid to him. The judgment of the district court is reversed, the property is directed to be sold as upon execution, and out of the proceeds of said sale shall be paid, first, the amount due upon the contract of purchase, with lawful interest; and second, the several liens of the parties to this action are to be paidthe surplus, if any, to be paid to Lundin. In case the sum remaining after paying the amount due on the contract of purchase is not sufficient to pay all the lien holders in full, then said sum is to be applied pro rata among said lienholders. THE other judges concur. JUDGMENT ACCORDINGLY. FRANKLIN P. BONNELL V. COUNTY OF NUCKOLLS ET AL. [FILED NOVEMBER 26, 1889.] County Bonds: STARE DECISIS. The questions presented are the same as in Baird v. Todd and Jameson v. Dickson, recently decided [27 Neb., 782], and objections to the court house bonds of Nuckolls county are overruled. ORIGINAL application for injunction. Leese, Stewart & Rose, for plaintiff. Mason & Whedon, C. S. Johnson, and S. A. Searle, contra. Belcher v. Skinner. MAXWELL, J. This is an action to enjoin the defendant from issuing certain county bonds for the erection of a court house in said county, upon the ground that such bonds are illegal and void. The grounds of the alleged illegality are, first, that the "act to amend the second subdivision of section twenty-five, chapter eighteen, of the Compiled Statutes of Nebraska of 1887, in relation to county buildings, and officers, and to repeal said second subdivision," approved February 26, 1889, is unconstitutional for the reason that its title is insufficient and in violation of the constitution, that no bill shall contain more than one subject, and the same shall be clearly expressed in its title; and second, that the taxes to pay the interest on said bonds, together with the taxes for ordinary county revenue, will exceed fifteen mills on each dollar of valuation, and hence are in violation of the constitution. Both of the questions presented were decided by this court in Baird v. Todd and Jameson v. Dickson, 27 Neb., 782. We regard those decisions as correct, and they are decisive of this. in question being valid, the action is dismissed. The taxes JUDGMENT ACCORDINGLY. THE other judges concur. WILLIAM BELCHER V. JOHN M. SKINNER. [FILED NOVEMBER 26, 1889.] 1. Continuance: WANT OF MATERIAL EVIDENCE. Under the provisions of section 960 of the Code a party desiring a continuance of a cause for a period not exceeding thirty days is entitled to such continuance if he "prove by his own oath or other 2. Belcher v. Skinner, wise that he cannot, for want of material evidence which he expects to procure, safely proceed to trial." - AFFIDAVIT. The oath, if in the form of an affidavit, may be substantially in the words of the statute, and it is unnecessary to state the purport of the testimony which the moving party supposes he can procure. ERROR to the district court for Loup county. Tried below before HARRISON, J. A. S. Moon, for plaintiff in error: Mere statements under oath, or conclusions of a party, are not proof. (2 Bouvier, Law Dict. [15th Ed.], 748; Greenleaf, Ev. [14th Ed.], 1; Jameson v. Butler, 1 Neb., 118; State, ex rel. Barnes, v. Thatch, 5 Id., 96; Ingalls v. Nobles, 14 Id., 274.) The granting of a continuance is discretionary with the trial court. (Holt v. State, 11 Ohio St., 691, and cases supra.) No appearance contra. MAXWELL, J. This action was brought by the plaintiff in the county court of Loup county, in March, 1889, and summons duly issued and served on the defendant. On the return day of the summons the defendant appeared and filed a motion for a continuance for thirty days, supported by an affidavit, as follows: "STATE OF NEBRASKA, LOUP COUNTY. "I, John M. Skinner, of lawful age, being first duly sworn, depose and say, that Charles Walker is a material witness for him in the above cause, without whose testimony, which he expects to procure, he cannot safely proceed to trial; that the said Charles Walker, as affiant has just been informed, is at present a resident of the city of Lincoln, Nebraska, and the time required to reach him by mail is |