Mackintosh v. Renton

3 Wash. Terr. 431 | Wash. Terr. | 1888

Mr. Chief Justice Jones

delivered the opinion of the court.

This cause was before this court on writ of error at the July term in 1882, and was at that time elaborately argued, and by order of the court was reversed and remanded, with directions to vacate all proceedings subsequent to the amended complaint, and dismiss the cause, unless the plaintiffs (respondents in this appeal) should so amend their complaint as to show themselves prima facie entitled to recover.

The facts are stated in the report of that trial, and are not here repeated. (Mackintosh v. Renton, 2 Wash. 121.)

The contract declared on is clearly illegal and void. As said in the opinion at the former hearing (ib. p. 129), it is said here, ‘ ‘ the contract set up attempted to effect a sale which could not be made without contravening public policy.” The scrip in question was such as gave to a soldier the right to make an additional homestead entry under the laws of the United States. It is not disputed, and cannot be, that the soldier himself, and he alone, can use it, and he cannot sell it or transfer it in any way to another, and thereby give to that other the right to make an entry of lands with it.

The papers making up each set in this case are fully described in the report of the former hearing (ib. 121,122), and on mere inspection they would show the fraud intended, and carry that knowledge to every party having anything to do with them. Both these parties had knowledge at the time of this transaction that any sale, transfer, or assignment of the right of a soldier represented by this scrip was absolutely illegal. The law conclusively presumes this knowledge.

It can make no difference here as to what representations were made by appellant to appellees, as to the use of this scrip in entering public lands; before the appellees paid the purchase money they had the scrip in their possession, had it examined by their agents and knew exactly what it was, and, with that knowledge, paid for it.

It is equally immaterial whether the scrip was forged or genuine — in either case it was worthless in their hands.

There could be no mistake or misapprehension, and one party was as much to blame as the other. There is consequently nothing a court of equity can take cognizance of.

There is nothing here open to doubt, or even to doubtful construction — ihe parties were equally in fault. The appellant, it is claimed, made representations, and appellees relied upon them, and that each was mistaken as to the law; yet it appears the appellees knew as much about it as the appellant, and each knew all the facts relating to the matter. We are compelled to overrule the findings of the District Court, so far as they are not in conformity with these views.

Let the judgment below be reversed, and judgment entered in favor of appellant for costs.

Turner, J., Langford, J., and Allyn, J., concurred.