
    William Phillips v. John Doe, ex dem. James R. Burrus, Judge of Probate of Yazoo County, et al.
    Under the act of 1833, the trustees of school lands were empowered, under certain circumstances, to lease for ninety-nine years the school sections; and it was provided, in the same act, that in townships not having sufficient population to elect trustees according to the law, the board of police for the county in which such townships were situated, should lease the section “ according to the provisions of the act, and in all other respects perform the duties required of the trustees ; ” it was held, that the board of police, in acting under this la\y in leasing a school section, do not act as a court; the leasing is the exercise by the board of a special duty imposed by the legislature, not within its ordinary constitutional jurisdiction as a court; and the mode of its exercise is pointed out by the law to be in the same manner as if trustees had been elected; a lease, therefore, by the board of police, which would be good if made by trustees, would be good if made by the board.
    The law of 1833, authorizing trustees to lease school sections for ninety-nine years, prescribes the prerequisites necessary to constitute a good lease, all of which must be complied with to make the lease valid, viz: 1, the request of a majority of the heads of families in the township, minors not excepted ; 2, six weeks’ notice by advertisement in a newspaper, or if no paper is printed in the county, by posting notices in three public places ; 3, an actual leasing to the highest bidder at the time and place specified; and 4, in the case of a lease by the board of police, that there is not sufficient population in the township to elect trustees.
    The law of 1833 prescribes no mode for the perpetuation of these prerequisites, nor by what evidence they shall be established ; it does not require any of the steps to be made of record; it is, therefore, a matter in pais, to be established by parol proof, the duty of preserving which appertains to the purchaser, whose right is derived from the exercise of a naked statute power. Therefore, in an action of ejectment brought against one in possession of a school section under a lease for ninety-nine years from the board of police, it would be competent for the lessee to prove, in support of the deed of lease from the board of police to him, the entries on the minutes of the board in relation to their action in the premises, and to show by parol the due and legal notice of the leasing.
    It is error to exclude competent testimony from the jury, for which the party may except, even though the evidence excluded would not be sufficient of itself to entitle him to a verdict.
    In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge.
    James R. Burrus, the probate judge of the county of Yazoo, Elihu Wasson, Edmond McJunis, John Batlaile, Benjamin Lewis, and William S. Grayson, school commissioners of Yazoo county, and Malatha A. Jenkins, treasurer of the county, sued William Phillips in ejectment, for the sixteenth section of township thirteen, range two, west. On the trial, the plaintiff proved the possession of the defendant, and closed his case; whereupon the defendant offered to read in evidence, the following entries and orders upon the minutes of the board of police of Yazoo county, viz: —
    “ Minutes of the proceedings of the board of police, began and held in the town of Benton, on Monday, the 7th day of April, A. D. 1834. Present, Samuel Walker, president, Edward Matchett, Gabriel Scott, and Samuel J. Carman, &c. On petition 'of a majority of the citizens of township thirteen, range two, west, it is ordered by the board of police, that the board of police proceed to sell said section according to law, it appearing to said board, that there is not a sufficient number of freeholders in said township. (Signed) Jeh. Walker, P. B. P.”
    “ November term, 1838. Upon application of John Alston, to this board, for a title to be made to him to the sixteenth section, township thirteen, range two, west, lying in Yazoo county, state of Mississippi, and proof having been made to the'satisfaction of this board, that the said sixteenth section was sold on the 4th day of July, 1834, when the said John Alston became the purchaser of the same, at said sale, made according to law; it is ordered by the board, that a deed according to law be made to the-said John Alston, for the sixteenth section, township thirteen, range two, west, and that the same be placed on the records of the board of police of the county of Yazoo.
    “ (Signed) J. J. Michio, P. B. P.”
    And on the minutes of the term, appears the deed from the said board of police, to John Alston, mentioned above, which, among other things, recites, “It appearing to the satisfaction of the said board, that the said John Alston, on the 4th day of July, 1834, at a sale made according to law, became the purchaser of the following tract of land, to wit, situate, lying and being in the state of Mississippi, and county of Yazoo, known as the sixteenth section, township thirteen, range two, west, for the sum of twelve hundred dollars and sixty-one cents,” “in consideration of the said sum of twelve hundred dollars and sixty-one cents, in hand paid, the receipt whereof is hereby acknowledged,” the said parties of the first part, (there being no trustees elected for said sixteenth section,) “have this day bargained, granted and sold, and by these presents do grant, bargain, and sell unto the said John Alston their right, title, use and occupation of said sixteenth section of land, for and during, and until the full end and term of ninety-nine years.” &c.
    To the introduction of which several orders and deed the plaintiff below objected, and his objection was sustained; the defendant then offered the said minutes, in connection with parol testimony, offering to prove by witnesses, that at the time of making the first order set forth', there were not resident in township thirteen, range two, west, five heads of families, and that due and legal notice of sale was given before the sale of said sixteenth section, to which plaintiff objected, which objection the court sustained, and refused to permit the evidence to go before the jury; to which opinion of the court the defendant excepted, and upon a verdict and judgment being given for plaintiff, sued out this writ of error.
    
      Miles and Battaile, for plaintiffs in error,
    Cited the following authorities: 1 How. 427 ; 4 S. & M. 207; 1 Plow. 163; Ross v. Lane, 3 S. & M. 695; 1 How. 450; 5 How. 739 ; 2 Hill’s R. 64; 5 How. R. 739; 7 Pick. 1; 1 How. 450 ; 10 Peters, 449 - 473; 8 J. R. 178; 1 Plow. 163; 6 S. & M. 271 ; 2 How. 774; 7 How. 457, 458 ; 1 S. & M. 321; 2 S. & M. 535; 5 S. & M. 142; 5 How. R. 736: 1 Peters, Cond. R. Sup. Court of U. S. 21-32; 5 Peters, Cond. R. 71; 1 Peters, R. 340; 9 Peters, 7; 10 Peters, R. 449; 2 Peters, 167; 6 Peters, R. 729, 730; 11 S. & R. 435 ; 1 Hill, 130; 17 Wend. 483; 15 John. R. 141; How. & H. Digest, 125; How. & H. 132 ; Ibid. 131; 10 John. R. 133; 9 Cow. 208; 2 U. S. Digest, 296, 297; 7 Greenl. 44; 5 Ham. 485; 3 Ran. 167; 1 Mass. 181; 9 Mass. 312; 5 Harr. & John. 489; 1 A. K. Marsh. 99; Ealcin et al. v. Vance et ■al., 10 S. & M. 549; Dillingham v. Jenkins, 7 S. & M. 479; 10 Peters, 450.
    
      
      JR. ¡S. Holt, for defendant in error,
    Cited How. & Hutch. 446 ; 4 Cond. Rep. S. C. U. S. 602; 11 Wend. 648; 19 John. 7, 3, 34; 7 S. & M. 454; 6 How. (Miss.) 106, 230 ; 8 Conn. 370 ; 10 Peters, 368 ; Hutch. Code, 213; lb. 210; 1 Stark. Ev. 151 n. 1; 3 lb. 1041; 1 Greenl. 102; 2 ü. S. Dig. 294.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

It seems that the land for which this action of ejectment was brought, is a school section, and it would seem that it had been leased, in 1834, for ninety-nine years, to John Alston, under whom the plaintiff in error claims. Being defendant in the court below, he defended on the title made to Alston, and the rulings of the court, in excluding his evidences of title, present the questions for determination.

The title exhibited appears to have been made by the board of police of Yazoo county, and the objection is, that the lease was not made in accordance with the directions of the statute, or rather that the records of the board of police do not show that the statute was strictly complied with. The principle is then urged that, as the board is a court of limited jurisdiction, its records must show every thing requisite to confer jurisdiction. The principle is correct, but its application in the present instance will depend upon the statutes under which the authority was exercised.

By the act of 1824, the resident heads of families in each township, being legal voters for members of the legislature, were authorized to elect five trustees, whose duties in reference to the school section were defined; but not until 1833 had the trustees power to make long leases. By an act of that year, they were authorized to lease out the school section for ninety-nine years. And it was made their duty to do so, when thereto requested by a majority of the resident heads of families in the township, minors not excepted. This section of the act contains this proviso : “ That in the event that there should be one or more townships which does not contain population sufficient to elect trustees, as provided for by law, that the board of county police of the county in which the same is situated, shall lease the said section according to .the provisions of this act, and in all other respects perform the duties required of said trustees.” H. & II. Dig. 132, sec. 30. Here, then, is the power under which the board of police acted.

In the outset, we differ with counsel in regard to the character in which the board acted. Though it may be a court according to its constitutional organization, it did not act as a court in this instance. It acted by special commission or appointment, in a subject foreign to its ordinary constitutional jurisdiction, which relates to roads, highways, ferries, and bridges, and all other matters of county police. This is not by law a matter of county police. Even the state is but a trustee in regard to these lands. Through the legislature, she may manage them so as to appropriate the proceeds to the proper object. This she does through the trustees of schools, who constitute a quasi corporation, which acts as a sub-agent in carrying out the object of congress. In townships where no trustees can be elected, the board of police is substituted in their place, and thus become the trustees appointed by the legislature. They are required to perform the same duties^ and to discharge them in the same manner as the trustees would, if there were any. They are not required to do more than the trustees are required to do; and a lease which would be good if made by trustees, ought to be good if made in the same way by the board of police. The act expressly declares, that the board of police shall lease the said section according to the provisions of this act, and in all other respects perform the duties required of said trustees.” This does not confer jurisdiction on them as a court, and authorize it to be exercised in the ordinary way of their proceeding; but it appoints them to a particular duty, imperative in its character, to be done in a particular way, which way dispenses with the ceremonies usual in courts. As the trustees may lease, so may the board of police.

Now it is to be observed that the trustees have no discretion in making these leases. On the proper application, they are bound to make them, and the duty must be discharged in the manner pointed out by the statute. The statutory prerequisites are necessary to constitute a good lease. But as the statute has' not said how the evidences of these prerequisites shall be perpetuated, or by what evidence they shall be established, the courts cannot do so by prescribing a particular mode, to the exclusion of all others. If they can be established by competent proof, written or parol, this must be all that can be required. If the law had authorized the trustees to appoint a secretary or clerk, and had made it his duty to keep a record of the proceedings, then it would follow that record proof should be introduced of such facts as were necessary to be recorded. Butin the absence of such a regulation, and in the absence of a law requiring the trustees to record their proceedings, we cannot say that record proof is indispensable. And it is to be observed, the law made no provision for recording the proceedings of the trustees. They were required to elect a treasurer, and it was made his duty to record all orders for the payment of money, and in what manner appropriated. H. & H. Dig. 125, sec. 17. But this was as far as he was required to keep a record; and it was not until 1836 that the board of trustees was required to elect a clerk, and keep a record of its proceedings. H. & H. Dig. 136, sec. 48. The legislature doubtless saw this important omission, and therefore applied the remedy.

By the statute, the following conditions seem to constitute prerequisites to a good lease of school lands : —■ 1, the request of a majority of the heads of families in the township, minors not excepted; 2, six weeks’ notice by advertisement in a newspaper, or if there is no paper printed in the county, then by posting up notices in three public places; and 3d, an actual leasing to the highest bidder, at the time and place specified. To these may be added another in the case of a lease made by the board of police; to wit, that there is not sufficient population in the township to elect trustees.

How is the lessee to establish the performance of these conditions? How is he to show that the lease was made on request of a majority of the heads of families? The law does not provide the means of making it a matter of record, nor does it require the petition to be recorded. So too of the notice; that is not made a matter of record. It is a matter in pais, to be established by the production of the newspaper, or by parol proof.

This title is derived under a naked statute power; the statute alone is the authority for passing it, and in cases of that description, the law is very clearly laid down in Williams v. Peyton, 4 Wheat. 77; and in Jackson v. Shepard, 7 Cowen, 88. It is this, that the evidences of title derived under a naked statute power, a tax collector’s sale, for instance, are matters in pais, and it is the duty of the purchaser to provide himself with the requisite proof, and to preserve it, at least for a reasonable length of time.

Now it may be asked, as the board of police could, only make the lease in case there was not sufficient population to elect trustees, how is it to appear that the contingency has happened? It is not more difficult to make such proof, than it is to prove the condition on which the trustees may lease; to wit, that a majority of the heads of families have applied for it.

On this view of the law, it remains to determine whether the court erred in excluding the evidence. The first matter of evidence was in these words : “ Minutes of the proceedings of the board of police, began and held in the town of Benton, on Monday, the 7th day of April, A. D. 1834. Present, Samuel Walker, president, Edward Machett, Gabriel Scott, and Samuel J. Carman.

On petition of a majority of the citizens of township thirteen, range two, west, it is ordered by the board of police, “that the board proceed to sell said section according to law, it appearing to the board that there is not a sufficient number of freeholders in said township.” And then offered to read a further entry on the minutes of November, 1838, which recites that John Alston had applied for a title to section sixteen, township thirteen, range two, west, and also that proof was made to the board of the sale of the land on the 4th of July, 1834, according to law, at which Alston became the purchaser, and it was therefore ordered, that a deed be made and placed upon the records of the board. The deed so made was also offered, but the court ruled out this evidence, and thereupon the defendant offered parol proof, in connection with these entries, to show that when the order of sale was made, there were not five heads of families residing in the township, and also that due and legal notice was given of the sale, but this too was excluded. If we are correct in holding, that the prerequisites to a sale were matters in pais, to be established as other facts of that description, then of course the court erred. It was competent for the defendant to prove the facts offered to be proved by parol, in connection with 'his deed. Although this proof alone might not have been sufficient, it was nevertheless competent. The party may have been prepared to prove all other necessary facts, and he had a right to adopt what order he pleased in the introduction of his evidence, and if any part of it was improperly ruled out, he had a right to except. The court cannot say to a party, you shall not introduce any evidence, however competent it may be, unless you introduce enough to make out your case.

There is no analogy between this sale and a sale made by an administrator. True, we have held, in such cases, that any thing necessary to give the court jurisdiction must appear. But the orders of sale are made by a court of special jurisdiction, in the exercise of its functions, and the law furnishes it with the means of placing every thing on record, and this being the case, the record must show that it had jurisdiction.

We are accordingly of opinion, that the judgment should be reversed, and the cause remanded.  