Stone v. Young

| Kan. | Jan 15, 1865

By the Court,

Safford, J.

The facts of the case are as follows : On the 4th day of June, 1856, Amos Rees sold to Elijah S. Wilhite the interest which he claimed to have become possessed of, in and to lots one and two, in block six, in South Leavenworth, Kansas, for the sum of five hundred dollars, payable in five and ten months thereafter. Rees gave to Wilhite his bond, and therein covenanted to make to Wilhite a warranty deed for the lots as soon as the title should be procured by the South Leavenworth Town Association, or by himself. The lots covered by Rees’ s bond were a part of what was known as the Delaware trust lands.

Wilhite afterwards, to wit, oh the 3d day of November, 1858, sold the same property to Isaac Young, for the sum of three thousand five hundred dollars, to be paid as follows: one hundred and fifty dollars in hand, eight hundred and fifty dollars in six months, fifteen hundred dollars, in lumber, within eight months, and one thousand dollars in twelve months from the date of sale. Wilhite at the same time gave his bond to Young, and bound himself to cause to be made and delivered to Young, a warranty deed to the lots, free and clear of all incumbrances, when the payments should be made, as above stated.

For the one thousand dollars to be paid in twelve months, Young gave his note to Wilhite, or order, which was dated November 3d, 1858. On the 16th day of February, 1859, Wilhite, by his indorsement on said note, sold and transferred the same to William N. Stone,, the plaintiff herein. He also at the same time made and delivered to Stone his quitclaim deed to the premises above mentioned. On the 25th of November, 1859, plaintiff commenced his action against, the defendants, setting up substantially the foregoing facts, and demanding judgment against Young, that he pay the amount of the one thousand dollar note, with interest, or that he be barred and foreclosed of, all right or claim in the premises described in the bonds of Rees to Wilhite, and Wilhite to Young, arid against Rees ; that in default of Young to pay the one thousand dollars, and interest, and upon the payment by plaintiff to Rees of the sum of five hundred dollars, with interest, alleged to be due on the contract of Rees to and with Wilhite, he, the said Rees, should make, execute and deliver to the plaintiff a good deed of warranty, in fee simple, of said premises.

The defendants filed a demurrer to the plaintiff’s petition, on the ground that it did not state grounds sufficient to constitute a cause of action against the defendants, which demurrer was .sustained by the court. To reverse this judgment upon the demurrer, the plaintiff brings the case here.

It will be seen, upon examination, that by the terms of the bond given by Rees to Wilhite,' Rees was tó make a warranty deed for the lots, so soon as the title should be procured by the South Leavenworth Town Association, or by himself. The petition does not aver that either ever acquired any. title to the lots; hence it does, not show that Wilhite, or his successor in interest, had a right to demand of Rees the deed mentioned in his bond to Wilhite; and the making of this deed being all the relief asked as against Rees, the petition is most certainly bad as to him. In this connection it may be remarked that the plaintiff1 does not have, or pretend to have, any claim against Rees, otherwise than that a deed was to come from him, through Wilhite, to the said plaintiff, and by virtue of the bond of Sees given to Wilhite.

So far, then, as Rees was concerned, the court did not err in sustaining the demurrer, for the reasons named. But how is it in regard to Young ? The plaintiff having set up all the facts in his petition, must be held to rely upon and be bound by the case made by them. Now, the petition shows that Young was to have a good title to the land, on payment as stipulated in the bond, free and clear from all incumbrances. It also shows that at the time suit was brought, the consideration of the bond from Rees to Wilhite had not been paid, and that plaintiff considered it a lien upon the lots. It ■ further shows that neither Wilhite nor his successor in interest in the note sued upon, was in a condition or had the power to make, or cause to be made to Young, such a deed as was contemplated by Wilhite’s bond. Such being the case, as by the plaintiff’ s own showing appears, ought he to be allowed to prosecute his suit, without at least putting himself in a condition to execute or cause to be executed, the obligation of Wilhite’s bond ?

But other considerations will dispose of the whole case. When the bond was given by Bees to Wilhite, the title to the land therein described was held by the government of the United States in trust, for the Delaware tribe of Indians. Of this fact there seems to be no dispute, as indeed there could not be, since it is notorious that the city of Leavenworth and additions were laid out on the Delaware Indian trust lands ; noils it doubted that the court below was cognizant thereof, and took such fact into account in deciding upon the demurrer.

It has been adjudged, and upon high authority, that any contract made in regard to the sale of such lands, while thus held in trust, is void, and that neither party can enforce it at law or in equity. It follows, therefore, that Wilhite acquired no right in the ju-emises by virtue of Bees’s bond, and, having acquired nothing, he had no interest to sell to Young. The note, then, given by Young in part payment for the land, (and this is alleged in the petition,) was without consideration.

This would, of course, be a good defense to the note as against the payee ; nor could the maker be deprived of it by the assignment of the note to a third party, as the law stood at the time the note here mentioned was executed. Laws of 1855, ¶. 156, §§ 3, 4.

Entertaining these views, we are not disposed to interfere with the judgment of the court below upon the demurrer.

All the justices concurring.