State ex rel. Lewis v. Williams

1. Conteaot — Cancellation—Fraud—Specific Facts to be Stated. Where fraud and illegality are charged as grounds for the cancellation of a contract, the specific facts constituting the fraud and illegality must be set forth. A mere general averment of fraud and illegality, without stating the facts on which the charge is based, presents no issue, and no proof is admissible thereunder. 2. Action to Cancel Contract — Consideration Paid tobe Repaid. In general, a party cannot maintain an action to set aside a contract on the ground of irregularity or fraud, unless the consideration received upon such contract is first paid or tendered back.

Jfirrror from Pratt District Court. On July 10, 1885, the county attorney of Pratt county instituted an action in the district court against Eli P. Williams, and the petition filed contained the following allegations: “ D. C. Lewis, county attorney of Pratt county, Kansas, who sues for the state of Kansas, in this behalf comes now here and gives the court to understand and be informed, that the state of Kansas was, on the 13th day of October, 1884, the owner in fee simple of the following-described lands and tenements, situate in the county of Pratt, state of Kansas, to wit, the south half of section 16, township 28 south, of range 15 west; that on the said 13th day of October, 1884, the then county clerk of Pratt county, without authority of law, executed and issued to one Eli P. Williams a certificate of purchase for said land, therein reciting that upon the payment of the amount of the purchase-money therein stated, the said Eli P. Williams would be entitled to a patent to said land; that said land is a part of the land granted by congress of the United States to the state of Kansas for school purposes; that there was a pretended petition presented to the superintendent of public schools of Pratt county, Kansas, on the 23d day of November, 1883, praying that said land be exposed for sale; that the pretended petition presented to said superintendent of public schools of Pratt county, Kansas, on the 23d day of November, 1883, praying that said land be exposed for sale, and upon which said certificate of purchase is pretended to have been issued, was not signed, made nor presented by a sufficient number of householders of the township in which such land was and is situate to authorize the appraisement and sale of said land; that of the persons joining in the said petition, and whose names are appended thereto, only seventeen at that time were legal householders of the township in which said land was and is situate, to wit, the township of Naron, county of Pratt, state of Kansas; that on the 7th day of December, 1883, the then superintendent of public schools of Pratt county, Kansas, appointed appraisers to appraise said tract of land; that the persons so appointed by the superintendent of public schools for appraisers of said lands were not appointed by and with the consent of the board of county commissioners of said county in the manner provided by law, and were not at the time disinterested householders of said township, county and state; that there was a pretended appraisement of said land made on the 11th day of December, 1883, and returned by said appraisers; that the pretended appraisement returned by the said appraisers made on the 11th day of December, 1883, was not made in the manner prescribed by law, and was not made of each legal subdivision of said land separately and at its real value; that the certificate of purchase so issued on the 13th day of October, 1884, to Eli P. Williams by the then county clerk of Pratt county, Kansas, for the south half of section 16, township 28 south, of range 15 west, is further illegal, fraudulent and void in this: that said land was unlawfully advertised for sale, and unlawfully offered for sale, and unlawfully sold by the then county treasurer of Pratt county, Kansas. “Wherefore, said plaintiff, the state of Kansas, prays judgment against said defendant, Eli P. Williams, and that said certificate of purchase issued to the defendant herein on the 13th day of October, 1884, for the south half of section 16, of township 28 south, of range 15 west, in Pratt county, Kansas, be ordered delivered up, canceled and held for naught; and for costs of suit, and for such other relief as may be just and equitable in the premises.” After the issues were joined and the case called for trial, at the April term, 1886, the court sustained an objection to the introduction of any testimony on the part of the state, upon the ground that the petition did not state facts sufficient to constitute a cause of action. The plaintiff failing to amend its petition, the action was dismissed; and error is assigned here upon these rulings.