Gove County KS Archives History - Books .....The Fight For The School Lands 1930
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Book Title: History Of Gove County, Kansas, Part II

CHAPTER VIII
THE FIGHT FOR THE SCHOOL LANDS

  Every new state when admitted to the Union was endowed by the national
government with a portion of the public land, for the support of education. The
size of this gift varied somewhat with different states, but in the case of
Kansas two square miles in each government township were thus set aside as
school lands. These lands were not to be homesteaded but were to be sold for
cash and the proceeds turned into the permanent school funds of the state.

  Some states administered their school land inheritance much more wisely than
others. The states which held their school lands—several of which could be named
if their names had anything to do with this story— now have a valuable property
which brings a large revenue into their school funds. But the Kansas school
lands were sold long ago at very low prices and never brought enough to do the
cause of education much good.

  The school lands were offered for sale at $3 per acre, the purchaser paid one
tenth down and had twenty years time to pay the balance, with interest at six
per cent. But few people cared to purchase the state lands, even on such
generous terms, so long as the national government was offering homestead land
free to every actual settler. After the homestead lands were gone the school
lands were soon snapped up; and thereby hangs a tale, as Shakespeare says.

  The first tract of school land to be filed on in Gove county was Section
36-13-26, which was taken in 1884 before the county was organized. The purchaser
made his initial payment of thirty cents an acre, kept up his interest payments
till 1894 and then abandoned the land. A few tracts were taken in 1885 and 1886
but most of these were abandoned after a few years. The first tract to be
purchased and paid for was Section 36-12-29, the section on which (a part of)
Gove City is located. This land was filed on in 1885 and patented in 1887 to the
Gove City Town-site Association. Willard Teller paid out on the north east
quarter of Section 16-15-27 and got a patent to it in 1887; a town had been laid
out on this tract and named Teller, which was expected to become a real city
when a railroad should be built up the Smoky.

  Soon the demand for school lands came to an end, and for twelve years
following 1886 not a single tract was taken up; and most of those which had been
taken up previous to that time were abandoned and reverted to the state.

  A few tracts of school land were taken up in 1&98 and the two years following.
It will be noted that at this time western Kansas was recovering from the
calamitous Nineties, population was beginning to increase and land was again
acquiring a value. In the natural course of events as things were going at that
time all the school lands would have been taken within a few years, even at the
extravagant price of three dollars an acre, thirty cents down and twenty years
time on the balance at half the prevailing commercial rate of interest.

  But the Kansas legislature of 1901 started something. It occurred to that
bunch of statesmen that the best thing they could do was to help the state get
rid of its lands. The few remaining school lands were all in the western
counties which were supposed to be a desert arid or semiarid country fitted only
for pasture, and it was argued that the state should sell its holdings as
quickly as possible and get out of the land business. Accordingly, the
legislature amended the old law and cut down the minimum price of school lands
from $3 per acre to $1.25. The bill went through the legislature very smoothly
and was supposed to be a very nice law. After it was seen how the law worked the
charge was made that it was a scheme of the western cattlemen to steal the
state's school lands. And perhaps it was.

  Immediately following the passage of the new law active trading in school
lands began. Under date of April 15, 1901, the State Auditor, Mr. George E.
Cole, wrote from Topeka to the county clerk of Gove county (and presumably to
all the county clerks:)

  Dear Sir:—The state land office is receiving letters every day wanting to know
the amount and quality of school lands for sale in the state.

  Please give me the detailed information concerning the school land subject to
sale in your county. Also the detailed information concerning the land that has
been sold on which payments are in arrears and on which the county clerk has not
issued legal notice of forfeiture.

  Please list all land subject to sale or forfeiture, and whether leased. Under
"Remarks" give some general information about what the land is good for whether
wheat, corn, general farming, grazing or grass land.

  In order to be of value these reports should be returned to this office
immediately.

  This information will be widely advertised and will result in getting a
considerable amount of this land on the tax rolls, increase the population of
the state, and in addition will materially increase the permanent school fund. I
shall take particular pains to let it be known that you are instrumental in
bringing this about and I hope it will receive your prompt and hearty support.

  The Gove County Advocate found little to approve in the plans to dispose of
the school lands, and it's comment on the Auditor's letter was as follows (April
19:)

  Mr. Cole may be perfectly honest in his action but his anxiety to "get this
land on the tax rolls and add to the population of the state" by sacrificing the
lands set apart for the benefit of the school children of Kansas is rather
suspicious, coming as it does so soon after the passage of the law reducing the
minimum price for school land to $1.25 per acre. We are not aware that Mr. Cole
ever made any special effort to sell school lands when the minimum price was
$3.00 per acre.

  Under the public land laws sections 16 and 36 in each township are set apart
as school land. There are sixty sections of school land in Gove county. Of these
about one-fourth have been sold; about seven sections are now held by settlers
who are preparing to bring them into market, and seventeen sections are leased
for a term of five years. Thus about two-thirds of the school lands are now used
or yielding a revenue to the school fund in some way.

  For the year ending last October the sales of school land in this county
amounted to $1470.39, and $483.87 was collected for leases. All lands were sold
for $3.00 per acre and upwards, one section near Quinter having been bought by
Samuel Long for $4.65 per acre. Gove county school land is worth something and
there is no excuse for rushing it on the market for $1.25 per acre. The county
is out of debt and has a surplus of $17,000 in the treasury; the school lands
are yielding a good revenue now and should be held till they bring a good price.

  These lands when sold should go to actual residents and those who will use
them, and not to speculators. Those who want school land should settle upon or
lease it now to head off the speculators. A lease will hold the land for five
years in spite of a sale, and a purchaser can oust a settler from the land only
by buying his improvements; so that a lease or a settlement will virtually act
as a bar to the designs of speculators. If you want a farm, get it right away,
on some school section.

  The county commissioners were importuned to have the school land^s appraised
and sold and a meeting of the board was called to consider the matter (April
25); at the meeting (says the Advocate) "a plea was made to have appraisers
appointed but none of the members of the board viewed the proposition with
favor, as they had found that the people generally are opposed to taking such
action at this time." The same week the Advocate says: "Gove county citizens
seem to have suddenly awakened to the advantages of school land as a real estate
investment, as evidenced by the rush of the past week to make settlement on all
that was not already tied up. In several cases there was a race for possession a
la Oklahoma. When the time for selling it arrives there will be little of Gove
county's school land unoccupied."

  The school lands did not last long after attention had been called to them in
such a fashion. The record shows that on one certain day eleven filings were
made on school lands and on another day nine. From the time when the new law
went into effect till the end of 1903 eighty entries were made, in 1904 there
were thirty, in 1905 twenty seven, in 1906 eighteen. This cleaned up the school
lands —and ordinarily this would be the end of the story; but it is only the
beginning.

  The school lands had been sold and the incident was in a fair way to be
forgotten when in 1906 Capt. George K. Spencer, who had once been a resident of
Gove county but was now living in Kansas City tendered to the treasurer of Gove
county a payment on a tract of school land which he had purchased twenty years
previously. The land was the west half of section 36-13-31, and the record
showed that Mr. Spencer had purchased it in 1886 for $3 per acre, made his
initial payment, kept up his interest for about ten years and then stopped
paying. His contract had then been forfeited, following the proceeding provided
by law; and later on the land had been sold again to Arthur Stansbury, at $1.25
per acre.

  The county treasurer refused to accept a payment on a forfeited contract. Mr.
Spencer contended that the forfeiture had not been made according to law, and
brought a mandamus suit in the supreme court of the state to revive his title to
the land and compel the treasurer to accept his money.

  The decision of the court is found in Volume 74, Supreme Court Reports, case
of Spencer vs. Smith, and was handed down June 9, 1906. The law provides that in
cases of this kind the sheriff shall serve notice of forfeiture upon the party
holding the contract to the land, or if the party cannot be found he shall post
the notice of forfeiture in a conspicuous place in the office of the county
clerk. The sheriff had done this and put his endorsement on the notice in the
following words: "Received this notice this 8th day of January, 1898, and served
the same by posting a certified copy in the county clerk's office, January 13.
1898, as the within named George K. Spencer cannot be found in the county." The
Court declared that there had been no forfeiture, because the notice had not
been properly served. Said the Court:

  "The returns show fatal defects. No personal service was made, and the
essentials of a constructive service do not legally appear. Notice can only be
given by posting where the purchaser cannot be found and no one is in possession
of the land. The returns of the sheriff show that Spencer could not be found in
the county, but they do not show that no one was in possession of the land. The
returns further fail to show that the notices put up in the county clerk's
office were posted in a conspicuous place. The failure to observe these
requirements defeats the attempted forfeiture."

  Therefore, because of these defects which the court had been so acute in
discovering, the state could not regain this land after Mr. Spencer had violated
all the terms of his contract. This decision of the Kansas Supreme Court is one
of the finest examples of judicial thick headedness and hair splitting to be
found in all our history. County officials are not one hundred per cent
efficient, and probably never will be. If they make some trifling mistake, if
the court really wanted to get at the facts, it would have been easy to prove by
competent witnesses that Spencer had abandoned the land, had ceased to make the
payments required in the contract, that no taxes had been paid on the land for
several years, that no one was claiming the land or making any use of it and.
finally, that the bulletin board on which the notice was posted was the most
conspicuous place in the county clerk's office. But the court would have none of
this sort of evidence; the sheriff had not stated in so many words that the
notice was posted in a "conspicuous" place, and the court slammed the door in
his face in the following language: "Oral proof offered to show that the notice
was sufficient in fact, or to amend the service, is not admissable."

  Of course, the effect of this decision was to upset the title to practically
every piece of school land in Kansas. And, as if by prearrangement, as soon as
the decision was handed down, the old contracts which had been forfeited for
years made their appearance and their possessers descended in a swarm upon the
present holders of school land. In nearly every case these old contracts seem to
have found their way into the hands of lawyers or other smart people from the
cities who did not care for the lands but held the contracts as a club over the
head of the new claimants, to get as much money as they could out of them. The
new claimants were actual settlers—the law required actual settlement and at
least $100 in improvements—and in their unorganized condition they were ill
fitted to deal with this sudden peril which threatened to deprive them of their
homes. Some of them capitulated and came to terms with the old contract holders.
Others were defiant; one of the latter kind tells of his experience about as
follows:

  "I had bought a tract of school land, and afterward sold the contract to Mr.
R_____ who had moved on the land with his family. I had never heard that the
land had been sold and forfeited before my time, and supposed that I was the
first purchaser. I heard that the supreme court had made a decision of some kind
affecting school lands but did not suppose it had anything to do with my case.
Then one day when I went to town a stranger came to me and told me that he was
the owner of my school land. He had the contracts and a certified copy of the
court decision to prove it, too. You could have knocked me over with a feather.
As I had disposed of my interest, probably I could have stood from under and let
Mr. R_____ do the fighting, but I felt under at least a moral obligation to
protect my purchaser.

  I read the documents over slowly, to gain time to think, and then I talked it
over with him about like this: "I see, Mr. J_____ that you have the contracts,
and that the court says they are good. I see, also, that you defaulted on them
ten years ago and that you owe ten years interest and ten years taxes. You will
have to pay all these up before you can establish your claim to the land; also
penalties for non payment of taxes, and these penalties are assessed by our
local officials; and you will find that they are good chargers when it comes to
dealing with a speculator who is trying to take something away from one of our
own people. And when you have made all these payments you have only bought
yourself a lawsuit, for we are on that land in good faith and are not going to
get off till we are put off." By this time I was doing all the talking. He left
me and drove out into the country to see Mr. R_____, who, of course, told him he
would talk to me about it. When I got home I found Mr. R_____ very much excited
and more than half convinced that I had swindled him. I offered to trade back,
but that did not suit him, he wanted only to keep the land. All right then, we
will stick together and fight that fellow to a stand still. Well, that was the
last of Mr. J. He gave us up as a bad job and never bothered us again."

  A meeting was called at Gove City, August 25, and the school land holders
formed an organization with J. W. Suiter president, C. H. Cole secretary and J.
F. Mendenhall treasurer. The members empowered those officers to act for the
organization and pledged them their moral and financial support. In all the
neighboring counties similar action was being taken. It was agreed to appeal to
the state legislature, which was to be chosen in the fall. Every candidate for
the legislature was sounded out, to be sure that he was right on the school land
question.

  When the newly elected legislature met the following January it showed itself
overwhelmingly in sympathy with the settlers on the school lands, and eager to
do everything which lay in its power to reverse the supreme court. The school
land act which it passed was Senate Bill No. 1, which numeral means that it was
the first bill introdued at the session and the first one to become a law. The
act fairly bristles with provisions intended to deny and undo everything the
court had put into its decision. The law is too long to reprint here in full, so
a few extracts must suffice:

  "Where entries which appear upon the records—in the office of the county
clerk—indicate that the interest of the purchaser in the tract of land—had been
forfeited for default in the payment of money due the state—such entries shall
be prima facie evidence, in any action or proceeding in any court in the state,
that proper notice of the purchaser's default had been issued and legal service
thereon made, and that all things necessary to be done—had been only done and
performed." "Any entry upon said records of the county clerk as 'canceled',
'forfeited', 'reverted to state', and the like, with or without date, shall be
held to be an entry indicating that the interest of the purchaser had been
forfeited." "The return of the sheriff on any notice issued by the county clerk
to the purchaser of school lands of his default- shall not be held to show an
insufficient or invalid service because of the omission of any recitals required
by law to show legal service; but if, notwithstanding such omissions, such
return shows that service of such notice was made by posting a copy thereof in
the office of the county clerk, such return shall be prima facie evidence, in
any action or proceeding in any court in this state, that the persons upon whom
such notice was to be served could not be found in the county, that no person
was in possession of the land described in the notice, and that a copy of such
notice was posted in a conspicuous place in the office of the county clerk." "In
any ease where the sheriff's return fails to show legal service, parol and other
evidence may be introduced to prove that in fact legal service of the notice was
made." The act then went on to provide that any holder of a forfeited contract
who wished to try his case in court must do so within six months after the
forfeiture or within six months after the passage of the act. A reading of this
law makes it look as if the supreme court was pretty well spanked, as far as the
legislature could do it.

  The passage of this act relieved the fears of the school land settlers, and
the situation was soon straightened out. In a few cases the holders of the old
contracts got the land, but most of them were put to flight and made little
profit out of the affair.

  But there is still another chapter to this story. Mr. Spencer had brought a
lawsuit, upset the titles to perhaps a million acres of land in western Kansas,
secured a decision from the supreme court and caused that tribunal to be spanked
by the legislature; and now it was to be supposed that Mr. Spencer would pay up
on his land, take his deed to it and quietly drop out of the picture.

  He did nothing of the sort. He made no move to avail himself of the decision
in his favor, and now it was discovered that instead of paying out on the land
according to his contract he, or his attorney, was negotiating with his late
opponent, Arthur Stansbury, to buy the title which Stansbury had acquired to the
land at the new minimum of $1.25 per acre. There is some difference between a
land deal at $3 per acre and one at $1.25. It appeared to the angry state and
county officials that Spencer's suit had not been brought in good faith but that
his purpose was merely to blackjack Stansbury and use the state and the supreme
court to pull his chestnuts out of the fire.

  Accordingly, suit was begun in the district court of Gove county to compel
Spencer to pay out on his contract or to forfeit the bond which he had put up
when he entered into the contract. The case is known on the records of the
district court as Case No. 734, and the assistant attorney general, John S.
Dawson, (now a member of the supreme court) came out from Topeka to prosecute
Spencer.
  Now Spencer is on the defensive and pleads, We cannot carry out our contract
because the land has already been sold and patented to Stansbury, and that lets
us out. The state says, You've got to do it.

  The state wins the suit, gets judgment against Spencer, the sheriff starts out
to collect the judgment, reports that he cannot collect, Spencer is out of the
county and there is no property to seize except the land, and the land had
already been patented to Stansbury but Stansbury's title to it is not good
because of that decision of the supreme court. It is a fine mess. The sheriff is
looking for Spancer's property, to seize it on execution. Spencer is holding a
contract which he is anxious to get rid of. Stansbury has paid out his money and
holds a patent which the court has decided is no good. Spencer has grounds for a
damage suit, and so has Stansbury. It looks as if the supreme court, or
somebody, will have to make some more decisions.

  But now at the psychological moment comes an offer of compromise. Mr.
Spencer's lawyer is Mr. L. C. True of Kansas City. He buys Stansbury's interest.
He figures out that the state had only asked $3 per acre for the land in the
first place and ought to be satisfied with that amount. Very well; Spencer, the
party of the first part, had paid down thirty cents per acre to begin with;
Stansbury, the party of the second part, had paid $1.25 per acre to get his
patent; that makes $1.55 per acre which the state had already received for the
land. Now Mr. True, the party of the third part, offers the state the lump sum
of $464, which is $1.45 per acre for the half section in litigation and. brings
the price which the state receives up to the $3 per acre which Spencer, the
party of the first part, had agreed to pay for it and which the state had been
trying to collect from him. Mr. True makes this offer, provided the state will
drop the case and make out a patent to the land to him (Mr. True.)

  The offer is accepted and patent issued to True. How much True paid Stansbury
for his interest does not appear. What Spencer got out of it, if anything, also
does not appear. He probably got nothing, and was out that thirty cents per acre
and all the interest payments he had made the state. The purchasers of school
lands all over western Kansas were put to a vast deal of trouble. The supreme
court of Kansas made itself ridiculous and was reversed by the legislature. And
nobody made anything out of it except a sharp lawyer who started the suit and
got a half section of land.


Additional Comments:
History of Gove County, Kansas
by W. P. Harrington

Gove City, Kan.	1930

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