167 P. 1156 | Utah | 1917
On the 31st day of March, 1910, at Burtner, Millard County, this state, plaintiff and defendant entered into a written agreement in words and figures as follows:
“ This memorandum witnesseth that John W. Coburn agrees to purchase at the price of ($1,600) sixteen hundred dollars, the following described real estate situated in the county of Millard, state of Utah, to wit: The S. E. ^4 of the S. W. % of See. 6, T. 17 S., R. 6 W., S. L. M., and Vern Bartholomew agrees to sell said premises at said price and to convey to John W. Coburn, said purchaser, a good title thereon, subject to final proof and (25) twenty-five shares of water in the Mel*568 ville Irrigation Company. Said land is desert land, and before final proof can be made said land will have to be irrigated, and said Coburn agrees to irrigate said land so proof can be made. And pending this proof Y. Bartholomew agrees to have a water certificate made in the name of John W. Coburn and place in the State Bank of Millard County at Fillmore as security for the money paid, and when final proof is made Bartholomew agrees to make a deed and place in the bank in escrow with the water stock before second payment is made. These payments upon said land are to be made as follows: ($800) eight hundred dollars down, the receipt of which is hereby acknowledged, ($400) four hundred dollars in one year from date, and ($400) four hundred dollars in two years from date at 7 per cent, interest on deferred payments, interest payable annually.”
In pursuance of said agreement plaintiff paid the defendant the said sum of $800, and the defendant caused a certificate of stock in the Melville Irrigation Company, a corporation, to be made in the name of the plaintiff, and placed the same in the bank referred to in the agreement. Plaintiff after-' wards, during the month of May, 1910, entered into possession of said land and irrigated the same, and during the year 1910 was compelled to pay, and did pay, $100 as an assessment levied on said stock. In September of the same year defendant made and filed in the General Land Office of the United States his final proof for patent for said land to the effect that he had complied with the laws of the United States and the regulations of the land department in all respects relating to desert land entries, and at the same time, as part of said final proof, made affidavit to the effect that he was the sole owner of said land, and that no other person possessed any interest therein. Defendant afterwards filed in said land office another affidavit in which he stated that in March, 1910, he had sold to plaintiff a portion of said land, and had also sold another portion of said entry to one Selman. The defendant’s application for patent was suspended, and he thereupon relinquished the same. Shortly afterwards his wife, Emma Bartholomew, entered the same tract of land and was in pos
At the beginning of the trial, and before any evidence was introduced, defendant moved for judgment on the pleadings, which motion was overruled. That ruling of the court constitutes appellant’s first assignment of error. He also assigns as error the judgment rendered by the court because, as defendant contends, the sums awarded by the court were paid by plaintiff for the purchase of the water stock and for the assessment thereon. It is also assigned as error that the judgment is contrary to law. These assignments constitute the issues presented by this appeal.
Under the first assignment of error, and by his brief filed herein, appellant contends that the court erred in overruling his motion for judgment on the pleadings for the reason, as he says, "the complaint showed on its face that it did not state facts which, if proved, would entitle the plaintiff to judgment against the defendant.” The reasons assigned by appellant for this contention are:
"The complaint showed a contract entered into which was contrary to law and could not be enforced, and sought to recover damages for its breach.”
‘ ‘ That from and after the date of the passage of this act no assignment of an entry made under said acts shall be allowed or recognized, except it be to an indi-vidual who is shown to be qualified to make entry under said act, of the land covered by the assigned entry, and such assignments may include all or part of an entry; but no assignment to or for the benefit of any corporation or association shall be authorized or recognized. ’ ’
The third and last assignment has already been disposed of, and need not be further considered.
Respondent has cited many authorities relating to the effect of illegal transactions between parties where one party is less culpable than the other, but the view we have taken of the transaction between plaintiff and defendant in the present case renders it unnecessary to review the authorities so cited, as they are not pertinent to our view of the case.
“There can be but one action for the recovery of any debt or the enforcement of any right secured by mortgage upon real estate or personal property, which action must be in accordance with the provisions of this chapter,” etc.
The section then provides for a sale of the mortgaged property according to the provisions of law relating to sales on execution. Respondent’s contention that he was not, in this ease, compelled to foreclose his lien upon the water stock is in contravention, not only of the express language of the statute