Armstrong v. Henderson

• Decision Date: 26 May 1909
• Citation: 16 Idaho 566,102 P. 361
• Parties: DUDLEY P. ARMSTRONG, Respondent, v. MELVIN HENDERSON and ELIZABETH HENDERSON, Appellants
• Court: Idaho Supreme Court

102 P. 361

16 Idaho 566

DUDLEY P. ARMSTRONG, Respondent, v. MELVIN HENDERSON and ELIZABETH HENDERSON, Appellants

Supreme Court of Idaho

May 26, 1909

APPEAL-TITLE OF CAUSE-TIME OF FILING TRANSCRIPT-CERTIFICATION-JUDGMENT-ROLL-LANDS WITHIN INDIAN RESERVATION-ENTRY-CONTRACT TO CONVEY-STATUTE OF FRAUDS.

1. The title of the cause as shown in the transcript is sufficient where it is the same as the title in the complaint.

2. Under rule 23 of the rules of this court, transcripts of the record must be served upon the adverse party and filed in this court within sixty days after the appeal is perfected.

3. Under rule 25 of the rules of this court, the time during which the trial court or judge thereof holds a bill of exceptions or statement prior to the settlement and filing thereof, and the time during which the attorney for the respondent may retain the transcript on appeal before certifying or refusing to certify the same, shall be excluded in computing the time, under rule 23, in which the transcript on appeal shall be filed.

4. Where the record shows that judgment was entered on June 26 1908, and the notice of appeal was served and filed on August 20th and the transcript was served on respondent on December 17th and filed in this court on December 19, 1908, the transcript is filed in time, where it also appears that the appellants' counsel consumed only twenty-three, days (exclusive of the time the bill of exceptions was held by the trial judge) between the day the appeal was taken and the date the transcript was filed in this court.

5. Where pleadings are amended, they take the place of the original, and all subsequent proceedings in the case are based upon the amended pleadings; and where the judgment-roll shows the amended pleadings, the court will presume that the pleadings contained in the transcript, certified by the clerk to be correct, are those which constitute the judgment-roll.

6. A paper purporting to be a contract, as follows: "Robin, June 16, 1902. We, the undersigned citizens of Robin, Bannock county, Idaho, voluntarily agree to deed and redeed to the old lines as they stand at present," is incomplete, indefinite and uncertain and cannot be enforced in an action for specific performance.

7. Parol evidence was not admissible for the purpose of supplying the description of the lands referred to, and to make the same comply and come within the statute of frauds.

8. A contract entered into by trespassers upon and occupants of lands within an Indian reservation before the same is thrown open for entry, that such persons will make homestead entry when the land is open for entry, and after acquiring title will make conveyances so as to adjust their title to the lands occupied before entry, is against public policy and void.

9. Under the homestead act, title to land entered cannot inure to the benefit of any person other than the entryman, nor can trust relations legally exist between the entryman and any other person in respect to the land entered.

(Syllabus by the court.)

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. J. M. Stevens, Judge.

An action to quiet title. Judgment for plaintiff. Defendants appeal. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Clark & Budge, for Appellants.

This agreement was entered into prior to patent,--in fact prior to entry,--and it contemplated mutual advantage to the various possessory claimants by stipulating that conveyances should be executed after patent. Under the conditions in this case, such an agreement is not forbidden by or against the policy of the law. (Lamb v. Davenport, 85 U.S. 307, 21 L.Ed. 759; McKennon v. Winn, 1 Okl. 327, 33 P. 582, 22 L. R. A. 501; Sweeney v. Sparling, 81 Ia. 433, 25 Am. St. 506, 46 N.W. 1068, 9 L. R. A. 777; Townsend v. Fenton, 30 Minn. 528, 16 N.W. 421; Gaines v. Molen, 30 F. 27.)

There is a provision of the statute which entitles us to prove and rely upon the agreement in this case in so far as it tended to explain the conditions surrounding the parties at the time respondent made his promise to convey. (Sec. 2274, U. S. Rev. Stat.)

This court has held that settlers upon an Indian reservation are subject to the same laws governing the possession and right to possession of property as settlers upon the public domain. The statute above quoted has been construed and approved. (Miles v. Johnson, 18 Utah 428, 56 P. 299.) Taking possession and making improvements take a contract out of the statute of frauds. (Sec. 6008, Rev. Stat.; Fleming v. Baker, 12 Idaho 346, 85 P. 1092; Francis v. Green, 7 Idaho 668, 65 P. 362; Barton v. Dunlap, 8 Idaho 82, 66 P. 832.)

Although a party already has possession at the time of the contract, if he makes improvements after the contract is made, it is sufficient to take the contract out of the statute. (Pugh v. Spicknall, 43 Ore. 489, 73 P. 1020, 74 P. 485; Borrow v. Borrow, 34 Wash. 684, 76 P. 305; Crane v. Cheney, 77 Kan. 815, 91 P. 67; Brown v. Hoag, 35 Minn. 373, 29 N.W. 135.) That part performance is sufficient, see Deeds v. Stevens, 8 Idaho 514, 69 P. 534; Darke v. Smith, 14 Utah 35, 45 P. 1006; Barrett v. Schleich, 37 Ore. 613, 62 P. 792.)

Standrod & Terrell, for Respondent.

In order for the affirmative matter in the answer to constitute a defense, or the cross-complaint to state a cause of action, the appellant should plead and prove a contract which is fair, definite, certain, and complete in its terms, reasonable in its application, mutual in its engagements, and based upon an adequate consideration. (Bear Track Min. Co. v. Clark, 6 Idaho 196, 54 P. 1007; Agard v. Valencia, 39 Cal. 292; Mayger v. Cruse, 5 Mont. 485, 6 P. 333; Evans v. Lee, 12 Nev. 399; Walcott v. Watson, 53 F. 435; Diamond State Iron Co. v. Todd, 8 Houst. 372, 6 Del.Ch. 163, 14 A. 27; Morrison v. Rossignol, 5 Cal. 65; Appeal of Holthouse (Pa.), 12 A. 340; Hollenbeck v. Prior, 5 Dak. 298, 40 N.W. 347; Fogg v. Price, 145 Mass. 513, 14 N.E. 741.)

"A court of equity will not decree specific performance of a contract unless the thing agreed to be done is definite and certain in its terms and in itself; and the party asking for performance must make out with clear and satisfactory proof the existence of the contract as he alleges it." (Magee v. McManus, 70 Cal. 553, 12 P. 451; Los Angeles Co. v. Phillips, 56 Cal. 539; Whitehill v. Lowe, 10 Utah 419, 37 P. 589.)

A mere preponderance of the evidence is not sufficient. The evidence must be such as to prove the contract beyond a reasonable doubt. (Rice v. Rigley, 7 Idaho 115, 61 P. 290; Deeds v. Stephens, 10 Idaho 332, 79 P. 77; Prairie Development Co. v. Leiberg, 15 Idaho 379, 98 P. 616.)

"Where a party occupying lands of the United States, with a view of acquiring title thereto under the provisions of the homestead laws, before the expiration of the five years from the date of entry and the ripening of his homestead right, sells an undivided interest therein, receives full payment, and executes a contract to convey such interest by warranty deed after perfecting his title, held that a court of equity will not lend its aid to compel the specific performance of the contract." (Mellison v. Allen, 30 Kan. 382, 2 P. 97; Brake v. Bellum, 19 Kan. 397; McCue v. Smith, 9 Minn. 252, 86 Am. Dec. 100; Turner v. Donnelly, 70 Cal. 597, 12 P. 469; Hudson v. Johnson, 45 Cal. 21; Damrell v. Meyer, 40 Cal. 166.)

"A written contract by a homesteader, made before compliance with the laws of the United States relative to homesteads in order to acquire title, is against public policy and void, and will not be enforced in a court of equity, although a valuable consideration may have passed from the purchaser to the homesteader." (McCrillis v. Copp, 31 Fla. 100, 12 So. 643; Nichols v. Council, 51 Ark. 26, 14 Am. St. 20, 9 S.W. 305; Weeks v. White, 41 Kan. 569, 21 P. 600; Cox v. Donnelly, 34 Ark. 762; Dawson v. Merrille, 2 Neb. 119; Oaks v. Heaton, 44 Iowa 116; Anderson v. Carkins, 135 U.S. 483, 10 S.Ct. 905, 34 L.Ed. 272; Horseman v. Horseman, 43 Ore. 83, 72 P. 698; In re Groome Estate, 94 Cal. 69, 29 P. 487; Bass v. Smith, 12 Okl. 485, 71 P. 628; Mayger v. Cruse, 5 Mont. 485, 6 P. 333; Jackson v. Baker, 48 Ore. 155, 85 P. 512.)

These parties could not initiate a right to these lands in violation of sec. 2118, U. S. Rev. Stat. They were mere trespassers, without any right whatever, and in a position wherein they could not initiate a right. (Langford v. Monteith, 1 Idaho 612.)

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

The respondent, Dudley P. Armstrong, brought this action against appellants to quiet title to the following described lands:

"1. The south half of the southeast quarter of sec. 32, in township 9 south of range 36 east of the Boise meridian, in Bannock county, containing eighty acres;

"2. The northwest quarter of the southeast quarter, the east half of the southwest quarter and the southwest quarter of the southwest quarter of said sec. 32, in said township 9 south of range 36 east of Boise meridian, in Bannock county, containing 160 acres."

The defendants set up as a defense, and as cause of action by cross-complaint, the claim that prior to the opening of said lands for settlement, the lands now claimed by plaintiff and other lands adjacent and in the vicinity had been settled upon by various persons who made their homes thereon, and intended when said lands were placed upon the market to acquire title thereto under the laws of the United States relative to the disposition of public lands; that such settlers and occupants were uncertain as to the lines bounding the legal subdivisions, and in their occupancy of said lands had agreed among themselves as to their boundary...