20 Minn. 205 | Minn. | 1873
The conclusions of fact found by the court below, so far as they appear to be important upon this appeal, are as follows, viz.: That on or about the 6th day of September, 1858, and prior to that time, the defendant Nathan Myrick was attorney in fact, (duly constituted,) of Francis Longie and Joseph Longie his son, then a minor under the age of fourteen years, and of Francis Roi and Henry Roi his son, then a minor under the age of fourteen years, and was duly authorized to locate certain half-breed scrip issued to said Joseph and Henry in accordance with the provisions of the act of congress, approved July 17th, 1854, entitled “ An Act to authorize the President of the United States to cause to be surveyed the tract of land in the Territory of Minnesota, belonging to the half-breeds or mixed bloods of the Dakota or Sioux nation of Indians, &c.,” and was desirous of discovering valuable lands situate in the state of Minnesota, whereon to locate said scrip, or, in default thereof, of .disposing of said half-breed scrip in such manner as to secure the interests of the said owners, in pursuance of the said authority and in discharge of the duty imposed upon him, the said Nathan Myrick, as attorney of the said parties ; that ..at and prior to September 6th, 1858, the plaintiff had knowledge of, and was, by himself and his agents and employees, in actual possession of certain lands, and had made valuable improvements thereon, and been at great expense thereabout to secure the title thereto in himself; that on or about said 6th day of September, 1858,the plaintiff and defendant, Nathan Myrick, for the purpose of securing the interests of all said parties, entered into an agreement, which, after reciting in detail the facts in regard to Myrick’s attorneyship aforesaid, proceeded as follows, viz.: “ And whereas the said Nathan Myrick has placed the said scrip and the said powers of attorney in the hands of the said Benjamin Thompson, with a view to the location
“ And the said Benjamin Thompson, in consideration of the premises and the faithful fulfilment of the said agreement of the said Nathan Myrick, agree with the said party of the first part to pay him the sum of twenty-eight hundred dollars in one year after date, according to the condition of his promissory note to the said Nathan Myrick, bearing even date with this agreement, and to secure the payment of the said sum of twenty-eight hundred dollars upon the land so to be located, as soon as he shall acquire the title to the same as aforesaid, or to secure the same otherwise, upon the acquirement of such title, to the satisfaction of said Nathan Myrick:;” that this agreement and the half-breed scrip therein mentioned were delivered to plaintiff by said Myrick, and the plaintiff then and there delivered to Myrick a promissory note in the words and figures following, to-wit:
“ $2,800. St. Paul, September 6th, 1858.
“ Twelve months after date I promise to pay to Nathan Myrick twenty-eight hundred dollars, without defalcation, for value received.
“Benjamin Thompson.”
That thereupon plaintiff proceeded and did locate said scrip on certain lands known to and occupied by him as aforesaid, a portion of said lands being thus located upon and entered in the name of said Henry Roi, in part on the 8th day of Feb
That on Dec. 26th, 1866, said Myrick procured said Henry Roi .to execute his deed of the lands entered by the plaintiff, as aforesaid, in said Roi’s name, whereby said Roi conveyed with warranty of title all said lands to Rebecca, the wife of said Myrick, her heirs and assigns, which deed was on Febru
That said lands ever since the entry thereof have been con
That at and prior to July, 1861, and until about February, 1866, the plaintiff was in embarrassed circumstances, and there were judgments against him to a considerable amount, which could not be collected; that no tender of a conveyance of said land was ever made by Myrick to plaintiff, and no tender of the amount of said note was ever made by said plaintiff to said Myrick; that shortly after January 16th, 1860, Myrick stated to plaintiff that he was ready to convey said lands, entered upon the 8th day of February, 1859, upon payment of said note, but made no other demand of payment of said note; that subsequently, and prior to the fall of 1864, Myrick spoke to plaintiff upon different occasions in reference to said note and the payment of money thereon, but made no demand of the payment of said note; that some time in the fall of 1864 Myrick did demand payment of said note of plaintiff; that Myrick did not at that time, nor at any time, offer to convey the whole of said lands so entered in the names of Longie and Roi, as aforesaid, but did at the time of making said demand offer to convey' the undivided four-fifths of the said lands, so entered on the 8th day of February, 1859, upon payment of said note and interest, claiming at the same time to retain the undivided one-fifth part of said lands, for the reason that there had been more delay,, expense
As a conclusion of law, the court finds that the plaintiff is entitled to judgment, directing and decreeing that defendants, (the said Myrick and the said Rebecca his wife,) convey to plaintiff, his heirs and assigns, forever, the one undivided one-fourth part of the lands' so entered by plaintiff in the name of Henry Roi and Joseph Longie, as aforesaid, and the whole of the seventeen lots aforesaid, and that, in case said defendants should fail to convey the said lands, the decree of the court shall stand in place of sucli conveyance, &c. Judgment having been entered accordingly, the defendants appeal.
Defendants’ first point is, that “ the agreement set out in the complaint is void under the act of congress and the treaty of 1830.” The provision of the treaty of 1830," (7 Statutes at Large, 330,) referred to is that, under which the Lake Pepin
It is claimed that, by the terms of the agreement between Myrick and Thompson, the scrip was to be located on land occupied by the latter, and that the agreement was therefore void as contravening the act of congress. The provision, by which the scrip was made locatable upon “ unoccupied lands,” was evidently framed for the protection of occupants. If an occupant saw fit, as Thompson did in this instance, to lay scrip upon land occupied by himself, this would be a waiver of the protection afforded to him by law, an abandonment of his occupancy, and, in effect, a restoration of the premises to the condition of “ unoccupied land.”
The further claim is made that the agreement is against the act of Congress, because it contemplates the location of scrip upon other land than that “ upon which they, (the scrip-pees,) have respectively made improvements.” The answer to this is, that this clause of the act qualifies the description, “ other unsurveyed lands,” not the description, “ other unoccupied lands,” &c. Such is the construction of the General Land Office. 1 Lester’s Land Laws, 628, 2d ed., 370.
As to the point, that the real object of the contract was to accomplish a transfer of the scrip, we see nothing to distin
The second position taken by defendants is, that the “ agreement is void on common law grounds by reason of the relations of Myrick to tbe grantees of tbe scrip.”
As the scrip was made non-assignable by tbe act of congress, (10 Stat. at Large, 304,) and therefore no valid transfer or conveyance of tbe same could be made, Myrick’s relation to tbe scrippees was that of an attorney in fact, duly authorized to locate tbe scrip for them. So far as tbe location is concerned, there is no ground for supposing that it was not made prudently, and for tbe best interests of Myrick’s (tbe attorney’s) principals. So far as appears in this case, Myrick’s duty in bis fiduciary relation to tbe scrippees was at an énd when the location was complete. As this relation was to end. upon such location, we can conceive of no reason why Myrick was not at liberty, either before or after tbe location was made, to enter into an agreement to secure the title, (enuring from tbe location,) to the plaintiff upon payment of an agreed consideration. Such an agreement did not, so far as this case shows, tend to produce a conflict between Myrick’s private interest and bis duty to locate tbe scrip to the best advantage of bis principals.
Defendants’ third point is, that, “ by tbe terms of tbe contract, tbe payment of this note by Thompson is a condition precedent to bis right to specific performance.” Tbe note is non-negotiable and is in tbe bands of the payee, and there is, therefore, nothing to prevent full inquiry into its consideration It bears even date with tbe written contract between Myrick and Thompson, in which it is expressed to have been given in consideration of tbe matters set out in such contract and of “the faithful fulfilment of the said agreement of the said JYathan MyrickThe note and contract should, then, be read
Defendants’ fourth position is, that “ this is not such a contract as a court of equity will specifically enforce, because it is not for a conveyance of the lands by Myrick, but is for services to be rendered by Myrick in securing a conveyance from Longie and Roi.” Myrick’s contract is, “ that he will, upon the location of said scrip, secure the title to the land, whereon the same may be located, to be lawfully vested in said Benjamin Thompson.” Plainly the purpose of the contract was to invest Thompson with the title to the lands. Myrick’s agreement was not merely to perform services for Thompson
Defendants’fifth point is, that “ the admitted and proven facts, and the findings of the court raise a conclusive presumption that the contract was abandoned.” The question presented by tbis point is one of fact, upon which we need remark only that the court below has found against the defendants upon the evidence in the case pro and con, upon an examination of which we are unable to say that the conclusion arrived at is unsupported or erroneous.
Defendants’ sixth position is, that “ to enforce this contract under the circumstances disclosed by the testimony will be an inequitable exercise of the discretion of the court.” The argument in support of this position is, in substance and effect, that the plaintiff has been wanting in due diligence, and is justly chargeable with laches in not asserting or prosecuting at an earlier date his claim to the lands in question; that he has lain by “with a view to see whether the contract would prove a losing or gaining bargain, and, according to the event, either to abandon it, or, considering time as nothing, to claim a specific performance;” that he has failed to claim or act under the contract for so long a time as to give the impression
Defendants’ last position is, that“ this action is barred by the statute of limitations.” Myrick agrees “ that he will, upon the location of the said scrip, secure the title to the land, whenever the same may be located, to be lawfully vested in the said Benjamin Thompson.” The scrip was located February 8th, 1859, and January 17th, 1861. Defendants’ claim that a cause of action accrued to plaintiff immediately upon the location of the scrip, and that the statute began to run from the date of the location, i. e., from January 18th, 1861. "We think the limitation, as applicable to this action to compel a specific performance, did not begin to run until Myrick obtained title by the deeds of December, 1866, and January, 1867, being the times when the scrippees reached their majority. His agreement to secure the vesting of the title, “ upon the location of the scrip,” is not, under any fair construe