majority">Perkins, J.

Leander Smith filed in the Marion Circuit Court, an affidavit, as follows:

“ Leander Smith swears that he is informed and believes that Hannah Devinney, February 22, A. D. 1833, at the county of Marion aforesaid, bought of the agent of state for the city of Indianapolis, lot number six, in block number thirty, in said city, for 25 dollars; that she agreed to pay said sum as follows: one-fourth cash down; one-fourth in one, one-fourth in two, and one-fourth in three years from the date of purchase; or in default thereof, or of any of said payments, to forfeit said lot, and any payments she might make thereon before such default. And the said Harmah then and there paid said agent the said sum of 6 dollars, 25 cents, and received his certificate showing the purchase of said lot and the terms thereof. She also paid the second payment upon said lot, according to contract, on the 22d of February, 1834; and after the making *145of said second payment, the said Hannah sold said lot, and assigned her said certificate to one John Morrow, who, afterwards, on the 22d of February, 1835, made the third payment thereon; but the said Morrow failed to make said last payment according to contract and law, and the said lot, then and there, to-wit, on the 23d day of February, 1836, became, and was, forfeited to the said state of Indiana. And the said Smith further swears that he is informed and believes that upon the said failure of said Morrow to make said last payment, and the forfeiture thereof, said lot became, and thenceforward has remained, in the state of Indiana, subject to entry at minimum price, fixed upon the same by the proper officers of said state prior to the sale thereof to said Hannah Devinney as aforesaid, which said minimum was 25 dollar’s, by the person first offering to pay said price for the same.

And the said Smith further swears that all the papers, books, plats, and other documents, formerly kept by the agent of state for the city of Indianapolis, in reference to lots therein, have been, and were before the 10th day of July, 1856, duly transferred to the custody of the auditor of state, for the said state of Indiana, and still remain in his custody; and that he verily believes said auditor is now intrusted by law with all the powers and functions in regard to the property of the state of Indiana, in lots in the city of Indianapolis, formerly belonging to said agent of state for said city of Indianapolis; and that, acting upon this information and belief, he, the said Leander Smith, to-wit, on the 10th day of July, 1856, went before Hiram E. Talbott, auditor of state as aforesaid, in his office and regular place of transacting the business of said office, and then and there proposed and offered to enter and purchase said lot, at the minimum price thereof aforesaid; and there being, then and there, no other person desirous -of pmchasing said lot present, he, said Smith, did, then and there, insist upon his right to make said purchase and entry; and did, then and there, tender and offer to pay said auditor the sum of 25 dollars, in cash, for said lot, (which sum said auditor then and there received, and still retains,) *146and then and there demanded of said auditor that he should execute and deliver to him, as the purchaser of said lot, a certificate, deed, or other competent evidence of said purchase, and of the payment of said purchase-money, viz., 25 dollars, and that said lot was vacant, and the minimum price thereof.

But said Smith says that the said auditor then and there refused, and has, at all times since, refused, and still refuses to execute said certificate, deed, or other evidence, &c., as in pursuance of the statute, &c., he is bound to do, by which refusal, &c., the affiant has been precluded from obtaining title, &c.

Wherefore, he asks the Court, by the writ of mandate, to compel said auditor to make and deliver said certificate, deed, &c.”

Signed and sworn to by Leander Smith.

To this affidavit, treated as a complaint, a demurrer was filed, assigning for cause, that facts sufficient to authorize the issue of a mandate were not stated. The demurrer was sustained and the mandate denied.

We think this case presents a proper subject-matter for the writ of mandate. We know of no other adequate specific remedy. See Am. Law. Reg. vol. 6, p. 589.

The demurrer admits the facts stated in the complaint. Are those facts sufficient to entitle the complainant to relief?

The 5th section of the act of February 5, 1831, Gen. Laws, p. 83, provides that “Every purchaser of any lot hereby authorized to be sold, shall, at the time of making said purchase, pay to the agent one fourth part of the purchase-money, the residue to be paid in three equal annual installments; and if any of the payments shall not be made on the days they respectively become due, the lot and the money paid thereon shall be forfeited to the state, * * * and the same may thereafter be subject to reentry by any person offering to pay the price at which such lot or lots were appraised,” &c.

Section 6, provides that the agent shall register the number of the lot, name of purchaser, amount of purchase-mo*147ney, and the times the installments shall become due; and shall give the purchaser a certificate stating these facts, and that the lot and money will be forfeited upon failure to pay any of the installments; and provides for a deed upon full payment.

H. O’Neal, I W. Gordon, W. M. McCarty, and G. Tanner, for the appellant.H. E. Talbott, in person, and I E. McDonald, attorney general, for the appellee.

Section 7, provides that if any lot remains unsold after offer at public sale, the agent may dispose of the same at private sale at the minimum price.

The act of February 2,1832, Gen. Laws, p. 99, §§ 1, 2, provides for the sale of all lots not reserved for some special purpose.

Section 3, provides that said sales shall be upon the same terms, conditions, and restrictions as are contained in §§ 5, 6, of the act of February 9, 1831, above quoted.

Section 4, provides for private sale at minimum price on the same terms as above specified.

The act of May 27, 1852, 1 R. S. p. 150, § 17, says that the auditor of state “ shall do all acts necessary to be performed in relation to the business heretofore performed by the agent of the town of Indianapolis.”

We do not think it necessary to do more than refer to these statutes. The complaint shows the sale of the lot at 25 dollars, the minimum price; the failure to pay it by the purchaser, as the installments became due; the forfeiture and reversion of the lot to the state; the legal right to enter; the tender of the money and demand a certificate or deed of purchase, and the refusal of the officer. It is a plain statutory duty, admitted fully by demurrer, which the auditor is bound to perform.

Per Curiam.— The judgment is reversed with costs. Cause remanded with instructions to issue the writ of mandate.

Citation profile

How this case has been treated — in progress