
    The State v. Stephen S. Glidden et al.
    ■Under the act of April 16, 1852, to regulate the sale of school lands, no action is authorized to be brought against the purchaser to recover the unpaid purchase-money. The remedy by sale or forfeiture, as provided in section 15 of the act, is the only remedy which the auditor is authorized to adopt. ,
    Whether there is not a personal liability of the purchaser for the unpaid purchase-money, which, where there has been no forfeiture, the general assembly may, by appropriate legislation, authorize to be enforced," qucere ?
    
    Error to tbe District Court of Scioto county.
    Tbe original action was instituted by tbe auditor of ■Scioto county, in tbe name of tbe state, for tbe rise. of original surveyed ■ township No. 2, range 20, Cbillicotbe land district, against Stephen S. Glidden et al., to recover tbe purchase-money arising from tbe sale of certain'school lands.
    Tbe petition contains two causes of action. The first is .as follows:
    Tbe -plaintiff" says that on tbe 8th- day of September, A. d. 1863, tbe auditor of Scioto county, at public auction, ■in pursuance of tbe laws regulating tbe sale of school lands, and all steps and proceedings under said laws having been first duly bad and taken to fully authorize and empower him thereto, sold to tbe said Stephen S. Glidden, Obadiah H. Glidden, Charles M. Glidden, George Crawford, and tbe said Jefferson W. Glidden, deceased, then ■partners in business, under the firm name. of Glidden, Crawford & Co., and the said Jefferson W. Glidden then being in full life, certain lands of the lands granted by Congress for school purposes in lieu of section sixteen to original surveyed township No. 2, range 20, of the Chillicothe land district, and described as follows, to wit, the northeast quarter and the north half of the southeast quarter of section 20, township 3, range' 19, of the Chillicothe land district, for the sum of two thousand and seventy-one dollars and fifty cents, upon the terms and conditions provided by the said laws regulating the sale of school lands. And accordingly the said purchasers then paid to the treasurer of said county one-twelfth part of said purchase-money, to wit, $172.62!, and agreed to pay said treasurer the balance thereof, with annual interest thereon, in eleven annual installments of equal amount, dating from the day of said sale. The following payments have been made thereon, viz.: September 9, 1864, $182.98!; October 27, 1865, $182.98!; January 14, 1867, $182.98!; March 16, 1868, $182.98!; November 5, 1868, $182.98!; January 4, 1870, $182.98!; January 13, 1871, $182.98!; and no other payments have been made whatever, either by the said purchasers or by any one for them. Including the last installment, not due, there yet remains unpaid of said purchase-money the sum of $1,370.80!, and excluding said installment, there is now due and payable thereof, from the said purchasers to the plaintiff, the sum of $1,198.18, which plaintiff claims, with interest on the entire amount of the purchase-money unpaid, to wit, on the said sum of $1,370.80!, from the 13th day of January, 1871, payable annually.
    The second cause of action relates to the sale of a different tract of land. In other respects it is similar to the first cause of action. The amount claimed to be due on the second cause of action is $1,726.50.
    Judgment was demanded for the amount due on both causes of action.
    The defendant demurred to the petition. The demurrer was sustained by. tbe court of common pleas, and tbe petition dismissed.
    On error, tbe district court affirmed tbe judgment. Tbe present proceeding is instituted to obtain tbe reversal of these judgments.
    
      A. G. Thompson, for tbe plaintiff in error,
    claimed tbat tbe relation of tbe parties was simply tbat of vendor and vendee, in tbe ordinary sense of those terms; tbat tbe vendee was under a personal obligation to pay tbe purchase-money, and tbat tbe right of resale and forfeiture was merely a cumulative remedy to enforce tbe contract. Railroad v. Kennedy, 12 Conn. 499 ; Railroad v. Boorman, lb. 580; Small v. Manuf. Go., 2 Comst. 330.
    
      J. J. Glidden, for defendants in error, claimed:
    1. Tbat tbe contract did not create any personal liability. Tbe statute of April 16, 1852 (2 S. & C. 1339), is tbe only contract between tbe parties. Creighton v. City of Toledo, 18 Ohio St. 447; Christ v. Dice, 18 Ohio St. 542; 21 Ohio St. 333 ; 21 Ind. 421; 29 Ind. 1; Smith v. Mariner, 5 Wis. 551.
    2. Tbat tbe remedy provided by tbe statute is tbe only remedy. Sedgwick on Construction of Statutes, 402.
   White, J.

Tbe general question in this case is, whether an action is authorized to be brought to recover tbe unpaid purchase-money of school lands sold under tbe act of April 16, 1852, regulating tbe sale of such lands. 2 S. & C. 1339.

This question was answered in tbe negative by tbe court of common pleas, and by the district court; and this ruling is alleged to be justified on substantially the following grounds:

1. Tbat tbe purchase of tbe land by tbe defendants imposed upon them no personal liability to pay tbe deferred installments of tbe purchase-money.

2. That the remedy provided by section 15 of the act for sale and forfeiture, is exclusive. •

Section 15 is as follows: “If any purchaser or lessee shall fail to make any payment on any tract of land for the space of twelve months after the same shall become due and payable, the auditor of the proper county shall forthwith proceed to sell such tract or tracts of land, with all the improvements thereon, at the door of the court-house, to the highest and best bidder therefor, in cash—having first given notice of the time and place of such sale ; . . and on such sale no bid shall be entertained for a sum which will not be sufficient to pay all the purchase-money due the state, and all expenses incident to such sale; and in case said premises can not be sold for that amount, they shall revert to the state in trust for said township.” The section further provides for the disposition of the lands after they shall have been “ so forfeited.”

"When the original action was commenced, the time had elapsed at which the auditor was required to offer the lands for sale; and when, if they failed to sell for sufficient to pay all the purchase-money due and the expenses, they would revert to the state. But whether they had in fact been offered, and had reverted, the petition does not show. If the land had been forfeited to the state, it is quite plain, upon geueral principles, that all future liability of the purchaser for unpaid purchase-money would have ceased and determined. Small v. The H. M. & H. Co., 2 Comstock, 330; Winter v. Livingston, 13 Johns. 54.

But, assuming that the land has not reverted to the state, the question is, whether, in addition to the remedy provided by section 15, the statute authorizes a concurrent remedy by action to recover the balance of the purchase-money.

It seems to us it does not. In the absence of section 15, a remedy by action might be implied; but the provisions of that section are inconsistent with the existence of such concurrezit remedy.

No discretion is vested in the auditor by the statute to ■elect between remedies.

The imperative language of the statute is that “ if any purchaser . . . shall fail to make any payment on any tract of land for the space of twelve months after the same ■shall become due and payable, the auditor . . . shall forthwith proceed to sell such tract or tracts of “lands, with ■all the improvements, . . . and on such sale no bid shall be entertained for a sum which will not be sufficient to pay all the purchase-money due the state, and all expenses incident to the sale ; and in case said premises can not be sold for that amount, they shall revert to the state in •trust for said township

"Where authority is vested in a public officer, and the mode is prescribed for exercising the authority, that mode must be followed. Hence, it seems to us, there is no authority in the statute for instituting an action against the purchaser, in the name of the state, or otherwise, for the recovery of the purchase-money. That such a suit could not be instituted by the beneficiaries, without statutory authority, was ■decided in the case of the Trustees of Green Tp. v. Campbell et al., 16 Ohio St. 11.

In the other grounds relied on in support of the judgment we are not inclined to concur. The proposition is that, by the terms of the sale, no personal liability was incurred by the purchaser to pay the purchase-money; consequently, if the state should by legislation authorize such ■suit to be brought, it could not be maintained.

The correctness of this proposition depends on whether, upon the true construction of the statute, section 15 became so incorporated into the terms of sale as to become between the state and the purchaser the exclusive remedy; or whether it is not, under the contract of sale, on the part ■of the state, an optional remedy merely; but, as respects the auditor, and .as between him and the state, constituting the only remedy which he has been authorized to pursue.

We are hot prepared to say that the legislature may not modify or repeal section 15, and yet enforce the contract of sale against tbe purchaser, where there has been no forfeiture, if it should see proper to do so.

There are strong reasons growing out of the nature of the sale why this ought to be so.

Where the chief value of the lands consists in its timber or minerals, this value, owing to the long payments allowed by the statute, might be destroyed before any considerable part of the purchase-money would be paid.

It is also to be observed that lessees, who are personally liable for rents, are allowed to surrender their leases on the ground of becoming purchasers of the fee at its valuation, and that they and the purchasers at public sale of uuleased lands, are placed by the statute on the same footing. If there is no personal liability on the part of one to pay the purchase-money, there is none on the part of the other.

A final decision of this question is not, however, required in the present case, and we make these observations tO' guard against being understood as holding that the remedy by sale and forfeiture, provided in section 15 of the statute, is the only remedy for the collection of the purchase-money, which it is competent for the state to adopt.

Judgment affirmed.  