Spoon v. Gilbert

That complainants were to have the pine timber upon the lands described in the certificates assigned to defendant Gilbert, and that the latter was to give them a written agreement to that effect, we have no doubt. The value of the lands with the timber thereon, the consideration paid, the letters written to complainant Thompson, and the omission to produce his letters in reply thereto, as well as the oral testimony on both sides, clearly establish the fact of reservation.

It is not shown that defendant Whitney is a bona fide purchaser. His purchase would seem to be colorable merely, but whether so or not, he has not proved the payment of any consideration or attempted so to do.

It is said that complainants in purchasing these lands from the State committed a fraud, in reference to the pine timber in dispute, and that they cannot therefore obtain relief in this case. The fraud, if any, .consisted in Thompson’s making and filing with the Commissioner of the State Land Office an affidavit that these were not pine lands and -were valuable mainly for agricultural purposes.

Under the statute the minimum price of school lands was, *538fixed at four dollars per acre — one-quarter payable in cash and the balance on time. If the land was valuable mainly because of the timber growing thereon, a difference would be made in the time of payments, or security be required., Comp. L., §§ 3817,3823. The price per acre of the land was not increased, and the additional payment or security was required for the protection of the State. j

In this case it is not questioned by any (and an agent of ¡ the State was examined) but that the land, even stripped of1 the pine, was ample security for the unpaid balance to the State, and besides, the complainants offered to secure the | •State against all loss. The State therefore is not injured and' seems to be satisfied, and defendants cannot under suchcir-' cumstances take advantage of this objection.

The decree must be affirmed with costs.