[223 U.S. 437, 438] Mr. F. Dumont Smith for plaintiff in error.
Messrs. Frederick De Courcy Faust, A. C. Dyer, and L. M. Day for defendant in error.
Mr. Justice Van Devanter delivered the opinion of the court:
This was an action in a district court of the state of Kansas to recover the possession of a quarter section of land to which the parties were asserting adverse claims under the school-land laws of the state. The plaintiff's claim originated in a contract of purchase with the state, whereby he was required annually to pay interest on the unpaid purchase price at a stipulated rate. He failed for three years to comply with that requirement, and proceedings looking to a forfeiture of his rights under the contract resulted, in 1901, in a notation of forfeiture, as hereinafter explained. The defendant claimed under a like contract, made, in 1902, upon the supposition that all rights under the prior contract had been extinguished. [223 U.S. 437, 439] In 1906, while the defendant was in possession and complying with his contract, the plaintiff made payment of the purchase price and interest under his contract, and a patent was issued to him. The action was begun in 1907, when the defendant was still in possession and complying with his contract. The controversy turned upon the validity of the forfeiture proceedings. If they were valid, the plaintiff was not entitled to recover; otherwise he was.
The statute (Laws [Kan.] 1879, chap. 161, 2) prescribing the mode of forfeiture in force since before the plaintiff's contract was made, reads as follows:
Upon the trial it appeared that, while the plaintiff was in default, as before indicated, the county clerk of the county wherein the land was situate issued a notice to him in conformity with this statute; that the sheriff made a return thereon within the time prescribed, reading: 'Received this notice this 13th day of July, 1901, and served the same by leaving a copy with C. C. Potter, who occupied the within premises, July 17, 1907;' that, although not so stated in his return, the sheriff duly posted the notice in the office of the county clerk; that when the notice was served the plaintiff, although not so stated in the sheriff's return, was not a resident of the state, and was absent therefrom; that he failed to pay the sum due within sixty days from the time of the service and posting of the notice; and that, upon the expiration of that period, the county clerk entered upon the school-land record of the county the notation 'Land forfeited,' in such connection as to refer to the plaintiff's contract. Whether or not C. C. Potter, to whom a copy of the notice was delivered, was the only person in possession of the land at the time, did not appear.
After the issuance of the patent to the plaintiff, and after the action was begun, but before it was brought to trial, the state legislature enacted a statute (Laws [Kan.] 1907, chap. 373), containing these provisions:
The district court ruled that this statute was applicable to pending causes; that the notation 'Land forfeited' upon the school-land record in the county clerk's office was prima facie evidence of the lawful service of the forfeiture notice and of the due declaration of the forfeiture, and that this prima facie evidence was not overcome by the other facts disclosed at the trial, and so gave judgment for the defendant. The judgment was affirmed by the supreme court of the state (80 Kan. 148, 102 Pac. 249), and the plaintiff then brought the case here upon the contention, denied by that court, that the statute of 1907 impaired the obligation of his contract, and therefore was violative of the contract clause of the Constitution of the United States.
In our opinion, the contention cannot be sustained. The plaintiff's rights arising out of his contract were in no wise impaired by the statute of 1907. It did not interpose any obstacle to their assertion by him, and neither did it leave him without a suitable remedy for their ascertainment and enforcement. If the attempted forfeiture was invalid before, it continued to be so thereafter. The [223 U.S. 437, 442] statute dealt only with a rule of evidence, not with any substantive right. By making the entry of forfeiture upon the official record prima facie, but not conclusive, evidence that all preliminary steps essential to a valid forfeiture were properly taken, and that the forfeiture was duly declared, it but established a rebuttable presumption, which he was at liberty to overcome by other evidence. That such a statute does not offend against either the contract clause or the due process of law clause of the Constitution, even where the change is made applicable to pending causes, is now well settled. Pillow v. Roberts, 13 How. 472, 476, 14 L. ed. 228, 230; Marx v. Hanthorn, 148 U.S. 172, 181 , 37 S. L. ed. 410, 413, 13 Sup. Ct. Rep. 508; Turpin v. Lemon, 187 U.S. 51, 59 , 47 S. L. ed. 70, 74, 23 Sup. Ct. Rep. 20; Lindsley v. Natural Carbonic Gas Co. 220 U.S. 61, 81 , 55 S. L. ed. 369, 378, 31 Sup. Ct. Rep. 337; Curtis v. Whitney, 13 Wall. 68, 20 L. ed. 513; Cooley, Const. Lim. 7th ed. 409, 524-526.
It was because the plaintiff failed to assume and carry the burden of overcoming the rebuttable presumption established by the statute that he failed in his action.