
    H. C. Mayse, Appellant, v. Jerome Belt et al., Appellees.
    
    No. 16,819.
    SYLLABUS BY THE COURT.
    School Land — Forfeiture Waived — Patentee’s Bights Superior to Those of Subsequent Settler. In 1885 school land was duly sold and a certificate of purchase issued. In 1894 the land was sold to the county for taxes. In 1895 a notice of forfeiture of the certificate holder’s rights was issued and served, and the record of sale was marked “canceled.” After that the land was taken from the tax roll, and from time to time was leased, the last lease expiring April 5, 1907. On February 26, 1907, the appellant took an assignment of the tax-sale certificate, took out a tax deed, paid the state the entire sum due it on the certificate of purchase, and became entitled to a patent, which was issued to him on July 20, 1907. On April 6, 1907, the appellee settled on the land, and on December 30, 1907, petitioned for its sale. Held, in accordance with Baker v. Newland, 25 Kan. 25, that the appellee has no standing to question the appellant’s title.
    Appeal from Clark district court.
    Opinion denying a rehearing, filed March 11, 1911.
    (For original opinion, see 83 Kan. 746.)
    
      Robert C. Mayse, and W. W. Harvey, for the appellant; H. J. Bone, of counsel.
    
      Jay T. Botts, for the appellees.
   The opinion of the court was delivered by

Burch, J.:

A statement of the facts appears in the former opinion (Mayse v. Belt, 83 Kan. 746). In a petition for a rehearing it is urged that the-interpretation there given section 4 of chapter 373 of the Laws of 1907 (Gen. Stat. 1909, §7695), limiting the time within which actions may be brought to enforce the rights of school-land purchasers, is inconsistent with the decision in the case of Davis v. Nation, 82 Kan. 410, and it is further urged that the appellant ought not to recover because he has no title.

In the case of Davis v. Nation the principal question was whether the statute referred to is constitutional. The syllabus of the decision is limited to that subject, and because of its overshadowing importance a full statement of all the facts of the controversy was not embodied in the opinion. Had this been done, it would have been disclosed that the land involved had been sold to new purchasers, after attempted forfeitures, and that patents had been issued to such purchasers. Therefore there is no inconsistency between the two decisions.

With respect to the appellant’s title, it may be observed that the state had the right, if it saw fit, to treat the forfeiture as an effectual termination of the rights of the certificate holder and as a restoration of the land to the public domain. But it did not do so. It chose to waive the forfeiture, to treat the certificate of purchase as still in force, and to allow the appellant, as assignee by virtue of the tax proceedings, to perform the obligation of the certificate. When he had done that he became entitled to a patent. At the time the appellant perfected his right to the land the claim of the appellee had not attached. The whole matter was one between the appellant and the state, and the decision in the case of Baker v. Newland, 25 Kan. 25, is controlling. In the opinion delivered in that case it was said:

“It is generally true that one in whose favor a forfeiture exists may waive it. The state was the party entitled to the benefit of this forfeiture. No one else could claim its benefits. If, notwithstanding, it-receives full , payment of the purchase price and gives a patent, it does not lie in the power of any individual to question that title.' Doubtless many instances will be found in the history of this state in which purchasers of school lands have failed to make their payments on the very day. Technically and strictly, such failure worked a forfeiture. But if, notwithstanding, thereafter such- purchasers completed their payments and received patents, we suppose that their title is safe; certainly as against anyone but the state, and probably as against it.” (p. 34.)

It is said that the decision in Baker v. Newland ought not to apply, because the forfeiture statute then in force did not require action on the part of the county officials, but was self-executing. It would seem, however, that the state might waive forfeiture proceedings depending on the conduct of fallible individuals much more readily than statutory forfeitures. It is conceded, as of course it must be, that the ministerial act of issuing the patent was not important. The cases of Reitler v. Harris, 80 Kan. 148, and Broadie v. Carson, 81 Kan. 467, are not pertinent, because in each the second purchaser’s interest attached before the right to a patent accrued.

The petition for a rehearing is denied.  