33 Mont. 216 | Mont. | 1905
Lead Opinion
delivered the opinion of the court.
Appeal of the plaintiff from an order overruling a motion from a new trial and from that part of the judgment which is in favor of the defendants.
Defendant Gregg, on the 18th day of December, 1893, made and delivered to one Kendall his four promissory notes for
Defendant Gregg answered, and admitted the above alleged facts, but in defense set up what he calls a “counterclaim”; that is to say, he, while admitting that he has not paid any of the money secured in the manner above stated, avers that plaintiff holds the record title to a certain piece of land called the “Lakey tract,” not mentioned in the mortgage or in the contemporaneous instrument referred to, and that it was part of the consideration of his (Gregg’s) executing the mortgage that he (Kendall) was thereafter to make in writing, sign and deliver to him an agreement or promise to convey to him the Lakey tract. In the contemporaneous agreement heretofore mentioned, there is stated a second consideration for making the mortgage, to-Avit,
On the trial evidence was introduced by Gregg, over the objection of plaintiff, in support of his counterclaim. The position of Gregg is that his averments as to the Lakey land matter constitute a defense as going to show that the consideration of the mortgage failed, in part at least, for that Kendall never did sign and transmit to him the written agreement to convey the Lakey tract to him, and in fact refused to do so, and has failed to convey the same, and that the averments constitute also grounds of a counterclaim.
The court found and adjudged in favor of defendant Gregg as to the counterclaim, and ordered the conveyance of the Lakey tract to him, but seems originally to have failed to require reimbursement of plaintiff by the defendant of taxes and assessments made on the land and paid by the plaintiff and his predecessor.
It is alleged by Gregg that Kendall never intended to carry out the promise t'o convey the Lakey tract to him, and that the making of the promise to convey without then and there intending to perform was actual fraud. (Civil Code, subd. 4, sec. 2117.) Judgment went for the plaintiff on the mortgage, with adjudication as to the counterclaim, which we have mentioned above. Afterward the court, after hearing the motion of plaintiff for a new trial, conditionally granted the same, unless the defendants would consent to a modification to the effect that they should pay certain taxes and assessments. To this they assented, and, having performed, the motion for new trial was then denied. Neither of the defendants appeals.
Kendall -and Gregg labored under the mistaken idea that while Gregg, as he alleges, was the owner and purchaser of the scrip and the land taken up thereunder, Kendall could properly and lawfully make the necessary proofs that he was the purchaser of the scrip or of the land and procure patent. The record shows the fact that Gregg, and not Kendall, was the purchaser of the scrip and of the land upon which it was put, and that Kendall was acting not as the owner of the scrip or claimant of the' land was by them intentionally kept carefully from the knowledge of the government. The patent went to Kendall.
Now, under these circumstances, Gregg contends that the mortgage judgment (from which he does not appeal) should not be enforced unless Kendall’s assignee (the plaintiff) carries out what he (Gregg) declares was part of the agreement of December 18, 1893, to wit, the alleged promise to convey to him (Gregg) the Lakey eighty acres of land, which promise, if made, was deliberately left out of the written instrument of December 18, 1893. If, as we believe and hold, the contract between Kendall and Gregg to take the land from the government in the way agreed upon and above stated was invalid, then it does not make any difference whether Kendall intended at the time of the settlement of December 18, 1893, to make his promise to convey the Lakey tract or not. It was a promise which could not be enforced. A trust cannot result in one of two persons for the benefit of the other, if they intended and agreed to obtain land from the government unlawfully and fraudulently. In such a ease, in a suit between themselves as to the land, the court will leave the parties where it finds them.
. Defendants do not claim that the arrangement of Kendall and Gregg as to the Lakey tract was fraudulent, and do not say that the mortgage is void for any such reason. The appellant’s position is that the Lakey tract matter had nothing to do with the mortgage, and he relies upon the writings of December 18, 1893. to support his assertion. In short, defendants say the mortgage is good and valid, and may be foreclosed, provided the plaintiff be ordered to convey to Gregg a certain tract of land which, as we hold, was gotten from the government contrary to law, and which defendants say plaintiff’s assignor orally promised on December 18, 1903, to convey to Gregg.
We may not consider in this case, when there is no appeal from the judgment by the defendants, or any of them, whether or not the mortgage sued upon, if partly made in consideration of such or any promise of Kendall in relation to the Lakey tract, may be lawfully foreclosed.
It is not necessary for us to consider the point made by appellant that the contract in writing of December 18, 1893, covered all dealings between the parties. Whether it did or not, it is apparent, under the circumstances, that the defense or “counterclaim” of the alleged unfulfilled contemporaneous oral agreement of Kendall as to the Lakey tract may not, on this appeal, be considered by us as entering into or forming part of the consideration of the notes and mortgage.
The above being our view of the case on this appeal, after considering the oral arguments and reading the able brief of
For the reasons above appearing, the court below is directed to modify its judgment by striking therefrom all reference to the north half of the southeast quarter of section 31, township 21 north, of range 4 east (the Lakey eighty acres). The appeal, therefore, of plaintiff from that part of the judgment referring to the Lakey land is sustained, the court having erred in making its conditional order overruling plaintiff’s motion for a new trial, whereas it should have granted it, and subsequently, upon the performance of the condition, having denied the motion; but the judgment now being modified herein and hereby as above stated, there is not any reason why a new trial should be had, and therefore the court below is ordered to modify the judgment as above stated, and to let the same stand as the judgment of the court without a new trial.
Judgment modified.
Rehearing
On Rehearing.
delivered the opinion of the court.
This case is before the court on rehearing, having been heretofore decided. For statement of facts and opinion see ante, p. 216, 82 Pac. 27. Our decision before was that the decree below should be modified by striking from it all refer
The contemporaneous instrument of December 18, 1893, shows that the mortgage for $20,000 was given to secure certain. indebtedness, evidenced by four promissory notes of $5,-000 each, after an accounting as to all dealings between Kendall and Gregg. There is not any statement therein that there was made, or intended to be made, any release of the Lakey land held by Kendall as security for a certain sum of $3,000, being on such accounting considered as part of the $20,000, theretofore advanced by him to Gregg, or that the debt of $3,000, or any part thereof, had been discharged in any way. The fact*of this land being held as such security being set up by defendant Gregg in the equity suit to foreclose the $20,-' 000 lien on other property, we are now of the opinion that the court below was correct in attempting to adjust aE the equities growing out of the whole transaction and in requiring Keely, the successor of Kendall, to convey the Lakey land to Gregg, but was not correct in directing Gregg to pay only the taxes and assessments on said land accrued, with interest, but should have added a further condition to be performed by Gregg, to-wit, to pay the $3,000 and interest, or so much thereof as might remain unpaid after foreclosure and settlement of the $20,000 mortgage.
Counsel for plaintiff and appellant admitted in open court on rehearing that he would not complain of such amendment of the decree.
It appears that the Lakey land was taken as security for the $3,000. As the $3,000 and interest item was included in the settlement of December 18, 1893, interest should be computed on $3,000 from the date that the debt was incurred, to-wit, April 22, 1889, until December 18, 1893, at the then statutory rate, and at eight per cent upon the total of such $3,000 and
Upon further reflection and after further' examination we find that we were in error in this case, in our conclusion that because Kendall and Gregg apparently bad intended to conceal from tbe federal land office tbe fact that Gregg, and not Kendall, was tbe purchaser under the soup, any promise of Kendall to convey tbe land patented to him in pursuance of such secret plan, could not be enforced. It seems that tbe facts upon which we based bur conclusion that tbe arrangement to procure title in Kendall, and not in Gregg, were all known and considered by tbe interior department before issuance of patent, and that the government knowingly and willingly conveyed tbe land to Kendall intentionally, leaving him and Gregg to settle tbe equities between themselves, if any there were, in tbe courts after patent issued. For this reason w§ revoke what was said in the ^rmer opinion as to tbe arrangement between tbe parties being void, and that tbe courts would not enforce tbe intended trust. It now appears that Kendall took tbe patent in bis bwn name to secure tbe sum of $3,000 and interest, and bis successor should convey tbe same to Gregg whenever tbe amount for which it was held as security, sucb amount to be ascertained as hereinbefore said together with said taxes and assessments, is fully paid by or on behalf of Gregg.
Let tile decree below appealed from be modified accordingly, and let; tbe foreclosure of tbe $20,000 mortgage proceed as decreed*. Ererything in tbe former opinion not in conformity
Modified and affirmed.