113 P. 754 | Mont. | 1910
delivered the opinion of the court.
This suit was brought by Murray to enforce the specific performance of a contract to convey real estate. From a decree in
In his complaint the plaintiff alleges that in July, 1898, he and the defendant White each had an application before the land department of the United States, to enter the S. % S. B. and the S. E. % S. W. % of section 17, township 3 N. K. 7 W., in Silver Bow county; that the parties were claiming the land adversely, and, for the purpose of effecting a compromise and facilitating the issuance of patent, they entered into a contract by the terms of which Murray agreed to relinquish his claim to the S. E. % S. W. %, hereinafter called the west forty, and the S. W. % S. E. yÍ, hereinafter called the middle forty, and not hinder or obstruct the issuance of patent therefor to White; and White agreed to relinquish his claim to the S. E. % S. E. %, hereinafter called the east forty, and not thereafter hinder Murray in securing patent to that portion of the land; that White further agreed to procure the right to make, and make, a soldier’s additional homestead entry, or other scrip entry, upon the west and middle forties, procure patent therefor, and, as, soon as patent should be issued, transfer the middle forty to Murray upon Murray’s paying one-half the expense of such patent proceedings. It is then alleged that pursuant to the agreement the respective relinquishments were made; that White procured patent to the west and middle forties; that Murray paid a part of the expense and offered to pay the balance, if any, of the one-half of such expense, and has otherwise performed his part of the agreement, but that White refuses to render any account of the expense of procuring patent, and refuses to convey the middle forty as he agreed to do. It is alleged that defendant Lloyd claims some interest in the land in controversy, but that any claim which he may have was acquired subsequently to the date of the agreement between Murray and White, and with full knowledge of Murray’s rights. A copy of the agreement is attached to, and made a part of, the complaint.
The answer of the defendant White does not deny any allegation of the complaint, but 'Contains four separate affirmative defenses. The material allegations of these defenses were denied in a reply. Upon the trial the defendants assumed the burden of proof. The trial court found against them as to every one of their defenses, and the contention now is that the evidence preponderates against the findings made.
First Defense: It is alleged that the contract was procured by fraud, misrepresentation and unfair practices on the part of Murray, in this: that all the lands were agricultural lands of the United States; that White had a tona fide application before the United States land department to enter such lands under the homestead laws; that Murray claimed that all of the lands contained valuable deposits of placer gold and was claiming them under a pretended location thereof as a placer mining claim, whereas in truth and in fact said lands did not contain any deposits of placer gold, and were nonmineral in character, all of which facts were well known to Murray but unknown to White; that in fact Murray did not have any claim to the lands; had prior thereto relinquished his pretended claim to the east forty altogether and permitted others to locate the same; that for the purpose of deceiving White and inducing him to enter into the contract in question, Murray misrepresented the character of his pretended claim to the west and middle forties, and concealed from White the fact that he had no claim whatever to the east forty; that Murray represented that he had a good and valid placer location upon the lands and would contest and litigate with White for the lands; that relying on, and believing in, Murray’s representations as to the character of his claim, and to avoid the threatened litigation, and not otherwise, White entered into the agreement.
(a) Appellants attack Murray’s placer location as being fraudulent. They insist that the evidence shows that Murray
It has long been the settled rule that to constitute a discovery, within the meaning of that term as used in mining law, it is sufficient that precious metals be found in the ground in quantity which justifies the locator in spending his time and money in prosecuting development work with the reasonable hope or expectation of finding mineral in paying quantities. (Harrington v. Chambers, 3 Utah, 94, 1 Pac. 362; Book v. Justice Mining Co., 58 Fed. 106; Nevada Sierra Oil Co. v. Home Oil Co., 98 Fed. 673, 27 Cyc. 556; Snyder on Mines, secs. 349, 360; Shreve v. Copper Bell M. Co., 11 Mont. 309, 28 Pac. 315; Mc
(b) It is further insisted that Murray perpetrated a fraud on White in concealing the fact that he had already relinquished his claim to the east forty. The defendants having the burden of proof, were compelled to show: (1) That the fact concealed was a material one, and (2) that but for the concealment White would not have entered into the agreement. White testified that some time in the early part of 1898, before the contract with Murray was entered into, he discovered that the east forty contained brick clay; that he called this fact to the attention of his attorney, and was advised that the land department might hold that forty subject to mineral entry, and because of this advice he did not attach so much value to his homestead application for that forty; that he was of the opinion that the land
It is somewhat singular that, while evidence was given by defendants as to the value of the west and middle forties, there was not any given as to the value of the east forty at the time the agreement between White and Murray was entered into; and we are unable to know what, if any, value White attached to his homestead entry at that time, so far as it related to the east-forty, while the evidence given by plaintiff is, that the land was practically valueless for agricultural purposes. At the time the agreement was entered into, the only claim made by White to any of the land was based upon his application to enter it under the homestead laws, and his own cross-examination tends strongly to cast suspicion upon the tona fides of that claim.
While the evidence is not very definite, we think it fairly inferable that the terms of the contract were actually agreed upon before Murray relinquished his claim to the east forty, even though the terms had not been reduced to writing, and, if this is so, it was wholly immaterial to White what disposition Murray made of his claim to that parcel of land, and inconceivable that Murray’s subsequent concealment of the fact that he had relinquished his claim could prejudice White. Viewed in any light, we think that the defendants failed to maintain the burden cast upon them, of showing that Murray’s concealment of the fact of his relinquishment at the time the contract was executed misled White to his prejudice, or, speaking more accurately, the
Second Defense: This defense is based upon a want of or inadequate consideration. It is alleged that the agreement on the part of Murray to defray one-half the expenses of procuring patent to the middle and west forties was wholly fictitious; that Murray did not have any valid" claim to any of the land, and was, therefore, not foregoing any advantage or surrendering any right in relinquishing his pretended claim to those two forties: that at the time the contract was made, the land was of the value of $200 per acre; that defendant White had the preference right to enter all three forties, by virtue of his successful contest with one McCrimmon, a former claimant.
It is unnecessary to revert again to the evidence touching the character of White’s homestead or Murray’s placer claim. Under a charitable view, we think it can be said that each had a claim which he was asserting, to the entire three forties, and this being so, Murray’s relinquishment of his claim to the west forty was a valid and sufficient consideration for this contract. (Tessendorf v. Lasater, 10 Kan. App. 19, 61 Pac. 677; Hardesty v. Service, 45 Kan. 614, 26 Pac. 29; Waring v. Loomis, 35 Wash. 85, 76 Pac. 510; McCabe v. Caner, 68 Mich. 182, 35 N. W. 901.)
The Third Defense is that the consideration for the contract was illegal. It is alleged that some time prior to the execution of the contract, Murray had granted a right of way over the middle forty to a street railway company; that when Murray and White reached an agreement for a division of this land, White insisted that he should procure patent to the west forty independently of Murray and leave Murray to procure patent to the middle and east forties; that Murray refused to agree to this arrangement, but insisted that White secure patent to the middle forty for the use of Murray, to the end that Murray might coerce the street railway company into paying again for the right of way, and thereby cheat and defraud the railway company, and because of Murray’s insistence upon this term, and not otherwise, White entered into the agreement as made.
There is not any principle of law better settled than that a party to an illegal contract cannot come into a court of equity and have the illegal object carried into effect; but this suit does not have any such purpose. The contract obligates White to deed the land to Murray personally. If the performance of the contract is enforced, White and Murray will each have received just what he agreed he should receive, and no fraud will have been perpetrated on anyone. Does it lie in the mouth of White to say, then, that, although the contract was fair and just as between him and Murray, still it ought not to be enforced because at the time of its execution Murray cherished the hope that he might be able to defraud the street railway company by virtue of the terms of the contract? We think not.
' Counsel for appellants have not called our attention to any decided case similar in its facts to the case before us, and neither have we found any. As nearly an analogous case as we can find is made out by these facts: A, a resident of this state, loans money to B, who gives a mortgage upon land situated in. this state as security for the loan, but at A’s request the mortgage and note are made to run to C, who is a nonresident—and this is done for the purpose of defrauding the state out of the taxes upon the mortgage. A takes an assignment from C oi the note and mortgage, but does not place the assignment on record until foreclosure is sought. Upon B’s default, A com-mences foreclosure proceedings and B defends upon the ground' that the contract was and is void as against public policy. Upon i these facts the Nevada and Kansas courts have refused to fore- -
Fourth Defense: (a) The fourth defense is based upon the proposition that, since Murray had a mineral application for all these forties, and White had an agricultural application for the same lands, there could not be a lawful compromise of their claims so that one could receive a part of the disputed ground under a mineral application, and the other the remaining portion under his agricultural application. In their brief, counsel .. for appellants say: 4 4 The two claims were antagonistic to each .other; one of them was fraudulent and illegal, based on false testimony and was an attempt to defraud the government of the United States.” This premise is clearly erroneous and the argument based upon it, of course, equally so. That one person in perfect good faith may assert a mineral application for a particular parcel of public land, and another person, equally in good faith, may assert his agricultural application for the same
It is conceded that as between rival claimants for the same piece of public land, a compromise of their differences is recognized—even encouraged—by the government; but it is argued that in every instance wherein reference was made to this well-known rule, both claimants were asserting rights under the same general character of entry. And it is insisted that a case cannot be found in which the government recognized the right of one claimant, who was asserting title under a mineral location, and his rival who was asserting title under an agricultural entry, to compromise their differences so that one could secure patent to a portion of the land under his mineral application, and the other the remaining portion under his agricultural entry; and this may be true, but the fact—if it is a fact—that such a case has not been determined, can scarcely be considered evidence that such a compromise would not be recognized by the federal authorities if a case presenting it did arise. We do not see any difference in principle between a case of this kind and one involving a controversy between rival claimants under the same character of entry. Of course, title to known mineral land cannot be secured under agricultural entry (section 2318, United States Revised Statutes), and any effort on the part of rival claimants to secure such a result would be defeated as an attempted fraud on the government; but where, as in the case before us, the land has little value for either purpose and there is a bona fide contest involved as to the particular use for which the land has the greater value, we do not see any objection which
(b) Again appellants say: “A secret agreement by one to secure in his own name title to public land for the use and benefit of another, and to then convey to that other, is against public policy, illegal and unenforceable.” Stated thus broadly, the premise is not true. It is only true when the contract deals with a character of entry with respect to which the statutes of the United States prohibit such a contract. (Lamb v. Davenport, 18 Wall. 307, 21 L. Ed. 759; Barnes v. Poirier, 64 Fed. 14, 12 C. C. A. 9; Webster v. Luther, 163 U. S. 331, 16 Sup. Ct. 963, 41 L. Ed. 179.)
Pursuant to the agreement under consideration, White made his entry and procured patent to the middle and west forties by virtue of a soldier’s additional homestead scrip. A contract by’ the entryman under such scrip entry, to convey title to a por-' tion of the land when patent issues, does not contravene any' public policy, is not prohibited by law and will be enforced. (Webster v. Luther, above; Barnes v. Poirier, above; Tecumseh State Bank v. Maddox, 4 Okl. 583, 46 Pac. 563; Waring v. Loomis, above; Hardesty v. Service, above.) In Keely v. Gregg, 33 Mont. 216, 82 Pac. 27, 83 Pac. 222, this court expressed the opinion that a contract of the character of the one now before us is invalid. The question was not before the court and the opinion expressed was dictum. However, on rehearing, 33 Mont. 227, 83 Pac. 222, the court withdrew its remarks and left the question open.
(c) But it is insisted that the enforcement of a contract of this character makes possible the evasion of the federal statute, by permitting one, who is not himself a qualified entryman, to secure title to government land by the indirect method of having patent issue to one who is a qualified entryman but who secures the patent under contract to convey the land to the
Finally, it is urged that the trial court erred in fixing the amount which Murray should pay to White as a condition to White’s transferring the middle forty. The contract provides that Murray shall pay to White one-half of the expense incurred by White in securing patent to the west and middle forties. It appears that at the time the contract was entered into, the land was involved in a contest between the MeCrimmon and White applications; that it was necessary for White to have the services of an attorney to aid him in procuring patent, and that he arranged with his attorney to perform the necessary services upon a contingent fee of one-third the value of the west forty. Appellants now contend that since the west forty was shown to have a value of $50,000 for townsite purposes, and one-third if this value inures to the benefit of the attorney, Murray should pay one-half of that fee, or $8,333.33. However conclusive the agreement between White and his attorney may be upon the parties to it, Murray, who was not a party, cannot be bound. From the very nature of the case it was impossible for Murray and White to anticipate the exact amount of expense which would be incurred in securing patent, but in the absence of a fixed amount, Murray’s contract to pay one-half of the expense
We do not find that any reversible errors were committed. The judgment and order are affirmed.
Affirmed.