32 Iowa 58 | Iowa | 1871
The record shows that on the 13th of May, 1862, the plat of Blairstown was recorded; that as the plat was originally prepared it included a portion of territory on the north side of the railroad track, running by said town, which Blair, the proprietor of the. town, did not then own; and which after waiting some time after the plat was thus prepared he was unable to procure title to ; whereupon that portion of the original plat was abandoned and a new plat with that portion omitted was recorded at the time above stated. It is also' shown that on January 18, 1867, Blair having acquired the title to said omitted territory, the same was platted and acknowledged by W. W. Walker, Blair’s attorney-in-fact, and was on the 21st of January recorded as Blair’s Addition to the town of Blairstown. This addition included the lots in controversy. In laying out and platting this addition the blocks and lots were not made to correspond with the lots and blocks as shown on the original plat which included the territory of this addition.
The plaintiffs claim that this original map or plat (including the addition) was shown to them by the agents of Blair as the plat of Blairstown which it purported to be, and that said agents represented to plaintiffs that such plat would be acknowledged and recorded as the plat of Blairstown, and that relying upon these representations they purchased lots one and two in block eight according to such original plat. It is admitted that plaintiffs went upon the premises in dispute with the consent of Blair’s agent Pardee, and erected a building thereon, but it is denied by the appellant that they so entered under the agreement claimed by appellees. The first and leading question, therefore, is, whether the plaintiffs have established the contract they seek to enforce. There is some conflict in the testimony, which is voluminous, but upon a careful examination of it we are satisfied that the contract as alleged is fully established by a very decided and satisfac
It is insisted by appellant that if the contract alleged be established, it is, however, void for two reasons:
1. Because Pardee, with whom it is alleged to have been made, had no authority to make it, the power (from Blair and wife)- under which he acted being joint to him and W. W. Walker. Whether this position is correct or not, upon the basis of appellant’s argument, it is unnecessary to determine, as the evidence clearly shows that the contract was ratified by Blair himself, who, when Snouffer applied to him personally for a deed to the premises in question, directed Mr. Walker to make the deed as requested, and saying to Snouffer, “you shall have your deed;” and when Walker informed Blair that the plat was not yet recorded, Blair replied, “ have it done at once,” and promised Snouffer that it should be “ done very soon,” and that he should have his deed.
The Revision of 1860 provides, section 1027, “ that any person or persons who shall dispose of, or offer for sale or lease, for any time, any out-lot, or in-lot in any town or addition or city, or any part thereof, which has been or shall hereafter be laid out, until the plat thereof has been duly acknowledged and recorded as provided, etc., shall forfeit and pay fifty dollars for each and every lot or part of lot sold,” etc. This court held, in Pike v. King, 16 Iowa, 49, that the courts of this State will not enforce an express or implied contract for the sale of property, made on Sunday, where the parties thereto are not embraced in the exceptions expressed in section 4392 of the Revision. These are ferrymen, bridge and toll-gate keepers, those persons who observe the seventh day as the Sabbath, and those
In the case of a contract made on Sunday, it will be observed, that all parties thereto are within the terms of the prohibition of the statute. The act of making the contract is prohibited by the imposition of a penalty upon those engaged therein. Rev., § 4392. But section 1028, upon which appellant’s counsel rely, imposes a penalty upon but one of the parties to the contract. The person selling or leasing a lot or part of a lot in a town, etc., before the plat thereof is duly acknowledged and recorded, is alone liable to the penalty imposed by the statute. No penalty is imposed upon or denounced against a purchaser or lessee, nor is he prohibited from buying, nor is the sale as to bim declared invalid. It has been held that an official bond executed on Sunday is not void under a Sunday law similar to ours, as to the parties to be protected thereby. Commonwealth v. Kendig, 2 Penn. St. 448. It is so held because the parties to be protected by the bond were not parties to the act of making it, and hence had not violated the law. So in the case under consideration, there being no penalty denounced against the purchasers, they having violated no law, we should be going beyond any of the adjudicated cases and the principles upon which they are based, if we should hold the contract void as to them.
The contract, as we find it proved, was for certain ground as shown to the plaintiffs upon the first plat. This plat having been exhibited to the plaintiffs by the authorized agents of Blair, representing thereon certain territory laid off in blocks, lots, streets, alleys, etc., when the plaintiffs purchased according to such plat, the defendant could not afterward make a new and different plat so as to prejudice the rights of the plaintiffs. They, by their purchase, acquired their rights according to the plat shown them at the time of their purchase. They acquired the right to have the streets, alleys, blocks, lots, etc., conform to -the plat exhibited to them so far as not to prejudice their rights or hinder them in the use of the land purchased by them as contemplated by such plat. The City of Dubuque v. Maloney, 9 Iowa, 450, and cases cited on page 455. And the plaintiffs are not estopped by their failure to object to the changes made by the new plat actually recorded. Blair is bound by his contract, and is presumed to know its terms and the rights of the plaintiffs under it, and their silence could have no tendency to mislead or injure him.
Again, as Blair and wife alone appealed, those not appealing cannot make this objection.
The judgment of the district court is
Affirmed.