
    No. 8528.
    The State of Louisiana vs. Albert G. Ober.
    The doctrine of estoppel applies to the State as well as to private individuals. 28 An 462.
    APPEAL from the Ninth Judicial-District Court, Parish of Concordia. Rough, J. . . .
    
      Geo. S. Sawyer, for Plaintiff and Appellant:
    The sale of the school section to York and Hoover was null and void:
    1. Because it was made without the “ consent ” of the inhabitants legally given. Act of Congress, February; 1843. U. S. Stat. at Large, VoL 5, p. 601; Durant vs. Board of Liquidators, 29 An. p. 77,. where the said act is quoted ;' Rev. Stat. 1876, Sec. 1316; C. C. 1797, .1818, etc.
    2. * Because said land was not sold in lots, as required by law. Rev. Stat. 1876, Sec. 1316. See Treasurer’s Deed, Record, page 33. The sale was absolutely null and void. C. C. Art. 3010. The act was ultra vires. 33 All. 1031.
    3 There was no warrant from the Auditin’ authorizing this sale.
    4. Because there were no appraisers appointed and sworn, etc. The affirmative and burden of proof to show that all prescribed formalities were strictly complied with is on the defendant. 8 H. S. 246 : 3 La. 42L; 4 La. 150, 207; 9 La. 542; Reeves vs. Towles, 10 La. 285 ; ■ C. C. 3010; 2d Cond. XT. S. S. C. Reports, 150, (note). De non eccistentibus et non appaA'cntibus eadcm est ratio.
    
    The prescribed formalities must be strictly followed. 20 Call. 96 ; 7 Bosw. 604; 20 H. Pr. 395; Abb. Corp. Dig. 869; 2 Hans. 357, 371; 16 Ind. 227; 7 Gray, 12; Cool, on Const. L im 196.
    5. The prescription of ten years will not apply. Trop. de la Prese. Ho. 921, t. 2d, p. 445. See . Hos. 918. 919, 920, ib. Titles defective in form, even, cannot be the basis of ten years’ prescription, locum sit. C. C. 3186; C. H. 2267; Trop. 903.
    
      6. The prescription of ten years acquirenda causa, has no place between the immediate vendor and vendee. Trop. Prese. Ho. 904; C. C. 3848; Yaz Prese. Ho. 199.
    Ho prescription can run against the State. Lyndsey’s Case, 3 Peters’ Rep. 673. It cannot be estopped, being but a trustee. i
    7. The State is but a trustee, clothed, with a naked trust, uncoupled with an interest. M An. 130, 98; 33 An. 712.
    8. All parties defendant were necessarily in bad faith. C. C. 3482, 3452. They owe for rent, etc., at $500 per year.
    
      Steele & Garrett, for Defendant and Appellee:
    1. Elections are to he determined by the majority of ballots cast, and are not to be set aside on account of the meagreness of the vote. Austin vs. Eggleston, 12 An. 366.
    2. Where a State is party to a contract, or sues to enforce contract rights, the same rules of law are applied to her as to private peisons under likt circumstances. Davis vs. Gray, 16 Wall. p. 232; Curran vs. State of Ark., 15 Howard, 308; Succession of Zacbariof 30 An. 1262; Graham vs. Tignor, 23 An. 570; Pepper vs. Dunlap, 9 An. 141
    3. The sale of school lands in block, instead of lots of 40 to 160 acres, under Act 267 of 1858, is not an absolute nullity; hut such failure to subdivide is an informality of the sale cured by the prescription of five years. O. C. 3543; Frazier vs. Zytieg, 29 An. 537.
    4. The plaintiff vendor having recognized the title of defendant vendee by foreclosing the .mortgage and receiving the proceeds of the mortgage notes given as part of the purchase price, is thereby estopped from denyiug the validity of the first sale. Girault vs. Zunts, 15 An. 684; State vs. Taylor, 28 An. 462; Delbondio vs. H. O. M. I. Co., 28 An. 139.
    5. The plaintiff vendor cannot maintain the action to rescind the sale and take back the property without first having tendered the portion of the price paid. Lee vs. Taylor, 21 An. 514; Heirs of Doll vs. Kuthman, 23 An. 487.
   The opinion, of the Court was delivered by

Todd, J.

This is a suit instituted by the State to recover a tract of land in the Parish of Concordia, described as the 16th Section of Township Four, in the Land District North of Red River, in the possession of, and the title to which is claimed by defendant.

The facts relating'to this controversy are substantially these :

In 1860, this land was sold by the. State to Z. York and E. J. Hoover, for twenty-two thousand dollars. Of this amonnt, one-tenth, $2,200, was paid in cash, and for the balance of the- price the purchasers executed their nine promissory notes, payable, annually thereafter, and secured by mortgage on the land. The cash paid was transmitted and received into the State treasury. In 1870, an order of seizure and sale, issued on the notes, which remained unpaid, at the instance of the State, and in January, 1871, the land was sold'under this proceeding and adjudicated to F. D. Atwater for $1,500, which was also paid into the State treasury.

' In the meantime, the land liad been surrendered in bankruptcy by the original purchasers, York and Hoover, and in 1869, sold by their assignee in bankruptcy at bankrupt sale, to A. G. Ober and F. D. Atwater, but owing to oppositions made by the creditors of York and Hoover, the adjudication to tlie purchasers at the bankrupt sale was not completed till April, 1871.

Atwater subsequently sold his interest in the land to A. G. Ober, the defendant herein. The land in question was known as school lands, and is embraced in the grant made by the federal government to the State for educational purposes, by Act of Congress, of 15th February, 1843.

The State seeks to set aside the sale of the land and recover the same on account of certain alleged illegalities in the original sale to York and Hoover.

The defenses to the action are those of estoppel, prescription, and the failure of the State to return the money received for the land, or the offer of a return before bringing the suit. From a judgment in favor of the defendant, the plaintiff has appealed.

The ground of estoppel, relied on by the defendant, is the action of the State in selling the land, receiving the cash payment, and subsequently suing to recover the credit portion of the price, and causing the land to be. again sold under her mortgage, and a second time receiving the amount of the adjudication.

Except upon the theory that the first sale conveyed a title to the purchasers, and they' had become the owners of the land by virtue of that sale, and owed the unpaid balance of the price for the property they had thus acquired, the State could not consistently have proceeded to enforce her mortgage on the land for the price, and compel the payment of the balance due thereon.

There is no question that were the original vendor a private individual, he would be precluded by such action from ever again claiming the land and instituting suit for its recovery, on account of defects or irregularities attending the proceedings under -which he had first sold the property. He could not, and would not, under such circumstances, be listened to. Plaintiff’s counsel contends that this rule does not apply to the State, and especially as the beneficiaries of the origina? grant from the United States have an interest in the lands embraced therein.

We think otherwise. In the case of the State vs. Taylor, 28 A. 462, it was held; “ That the State is bound by her judicial jdeadings and admissions, the same as private persons, and is entitled to no greater right or immunity as a litigant, than they are. The doctrine of estoq)pel applies to the State just as it does to individuals.” Nor is this rule of law* varied by the fact that there are others interested in the subject matter of the proceedings conducted by the State. If any persons have been injured by the action of the State, good faith and a sense of justice should incline the State to make reparation, as all other fiduciaríes should do under like circumstances, even admitting their existence; but such conditions cannot affect the rules of law nor modify the liability and status of the State, in a judicial proceeding’in a suit where the State seeks to recover the lands as owner, and where the legal title under the federal grant was vested solely in the State. This view of the case dispenses with the consideration of other questions involved.

We find no error in the judgment appealed from, and it is, therefore, affirmed at the costs of the plaintiff and appellant.  