Clark v. Utah Construction Co., 5758

• Decision Date: 16 February 1932
• Docket Number: 5758
• Citation: 8 P.2d 454,51 Idaho 587
• Parties: GEORGE W. CLARK, Respondent, v. UTAH CONSTRUCTION COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

8 P.2d 454

51 Idaho 587

GEORGE W. CLARK, Respondent, v. UTAH CONSTRUCTION COMPANY, a Corporation, Appellant

No. 5758

Supreme Court of Idaho

February 16, 1932

COUNTIES-SALE OF COUNTY LANDS, WHEN VOID-TRESPASS-ACTION FOR DAMAGES-DEFENSES-DISMISSAL AND NONSUIT.

1. County commissioner is absolutely prohibited from being interested directly or indirectly in sale of county property (C. S., secs. 3515, 8122).

2. Deed conveying county property to wife of county commissioner whether purchase price was paid with community funds or wife's separate funds, held absolutely void (C. S., secs 386-388, 3515, 8122).

3. Defendant, wilful trespasser, cannot question title of plaintiff suing for damages for trespass, if latter had possession under claim of right.

4. Illegality of transaction cannot be waived, and may be raised for first time on appeal.

5. Court, in action for trespass, on acquiring knowledge that plaintiff acquired title contrary to statutes and public policy, invalidating deed, held to have duty to dismiss proceedings sua sponte, notwithstanding technical rules of pleading (C. S., secs. 386-388, 3515, 8122).

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Koelsch, Judge.

Action to recover damages for trespass. Judgment for plaintiff. Affirmed in part and reversed in part.

Judgment affirmed as to the first cause of action; reversed and dismissed as to the second cause of action. Costs awarded.

Edwin Snow, for Appellant.

The land purchased from Owyhee county by Dora A. Clark is presumed to be community property.

C. S secs. 387, 392, 3515 and 8122, prohibit and make felonious the acquisition of land from the county under the circumstances here presented.

When a contract is expressly prohibited by law, no court of justice will entertain an action upon it or upon any asserted rights growing out of it. (Berka v. Woodward, 125 Cal. 119, 73 Am. St. 31, 57 P. 777.)

There is no evidence whatever that Dora A. Clark was in actual possession of the land involved at the time of the alleged trespass or at any other time. If there were any such evidence, "actual possession" of the county land by Dora A. Clark, under a deed evidencing a criminal offense, would not render appellant liable to her for the grass she did not own.

Plaintiff brings the suit upon the second cause of action as assignee of his wife. The wife alone, or her assignee, cannot maintain suit for injury to community property. (C. S., sec. 4666; Boggs v. Seawell, 35 Idaho 132, 205 P. 262; Holton v. Sand Point Lumber Co., 7 Idaho 573, 64 P. 889; Cochran v. Brannan, 196 F. 219.)

Earl E. Garrity and William Healy, for Respondent.

Illegality is a matter of defense and must be pleaded. (Miller v. Donovan, 11 Idaho 545, 83 P. 608; Sutherland on Pleading, sec. 407; American Co. v. Bradford, 27 Cal. 361, 367, at 374.)

Either legal title or actual possession in the plaintiff will support trespass. (Steltz v. Morgan, 16 Idaho 368, 101 P. 1057, 28 L. R. A., N. S., 398; 38 Cyc. 1013.)

Entry and acts of dominion are sufficient to constitute actual possession in the absence of title. (38 Cyc. 1013 et seq.)

LEEPER, J. Lee, C. J., and Givens and Varian, JJ., concur, Budge, J., concurs in conclusion.

OPINION

LEEPER, J.

The plaintiff declares upon three causes of action to recover damages for trespass upon lands by defendant's sheep. The allegations in each cause of action are identical except with reference to the ownership of plaintiff. In the first cause of action he alleges that he is a lessee of the lands therein described; in the second cause of action he alleges that one Dora A. Clark is the owner of the lands therein described, and that she assigned to this plaintiff her cause of action against this defendant; in the third cause of action he alleges that R. J. Clark and R. A. Clark are the owners of the lands therein described, and that they assigned to this plaintiff their cause of action against this defendant. The complaint adequately alleges possession and the essential elements of a malicious trespass and prays for compensatory and exemplary damages. To this complaint a general and special demurrer was lodged against each cause of action, but was later withdrawn, and an answer of general denial was filed. After evidence was taken the third cause of action was dismissed by the plaintiff, and a jury returned a verdict against the defendant in the sum of $ 200 upon each of the other causes. The appellant concedes that no error is available to it as to the first cause. This appeal, therefore, is concerned only with the second cause of action.

The record shows these to be the facts: The plaintiff, George W. Clark, was county commissioner of Owyhee county for the term beginning in January, 1929, was re-elected in the fall of 1930, and presumably holds that office at the present time. Dora A. Clark is the wife of George W. Clark and J. R. Clark and R. S. Clark are his sons. At the time of the trial (February, 1931) these boys were thirteen and fifteen years of age, respectively. The muniment of title upon which is based the allegation of ownership of the lands described in the second cause of action is a deed from Owyhee county to Dora A. Clark, dated January 15, 1930, upon which appears the signature of George W. Clark as county commissioner of Owyhee county. The deed upon its face does not disclose the marital relationship of George W. Clark and Dora A. Clark at the date thereof. Nor was evidence to this effect directly elicited. The record as a whole, however, is such as to render an inference of that fact unavoidable. It shows that she was his wife at the date of the trial, that there is identity of names, that discussions with her were had in the year 1929, and that George W. Clark recorded the deed shortly after it was issued. The court below assumed the relationship in his charge to the jury without objection. This court will recognize the obvious. The deed, as shown on its face, was issued pursuant to a bid at public auction, and there is no evidence in the record as to whether the purchase price was paid out of funds belonging to the community composed of George W. Clark and Dora A. Clark, or out of funds owned separately by Dora A. Clark.

While the third cause of action was dismissed, the facts connected with it are highly significant. The grantees named in the deed upon which was based the allegation of title were the minor sons of George W. Clark. This deed was likewise a deed from Owyhee county, upon which appeared the signature of George W. Clark as a county commissioner, is dated June 28, 1929, and purported to convey some 6,000 acres of the county domain. It was based upon a bid at public auction, and plaintiff testified that he actually paid for it, presumably out of funds he owed his children. The only inference which we can gather from the evidence is that plaintiff actually concerned himself in acquiring this property, in the name of his children, without making any fine-spun distinction as to the source of the funds which paid for it. Since the cause was withdrawn, the jury made no finding on this issue and we are left to our own conclusions.

There is no extrinsic evidence with reference to the source of the funds with which was paid the purchase price to Owyhee county of the lands described in the deed to Dora A. Clark, nor does the deed recite that the rents and profits thereof are to be applied to her sole and separate use. The fact of the marital relationship between George W. Clark and Dora A. Clark appears dehors the deed, in the evidence of the plaintiff. Appellant contends that, in the absence of evidence, the statutory presumption prevails, and that this property must be deemed to have been acquired with community funds and is therefore community property, in which plaintiff owns his community interest. (C. S., sec. 4660.) Respondent concedes that this presumption should attach except for two matters. First: There is no proof of the marital relationship on the date the deed was executed. Second: The wife had the right to purchase this land from Owyhee county with her separate funds and that therefore the general presumption of regularity and legality of the official act of her husband will prevail over the statutory presumption embodied in C. S., sec. 4660.

Respondent also takes the position that, even if the presumption that this is community property does rightfully come into being, the illegality arising as a result thereof is not available as a defense, (1) because the illegality was not pleaded as an affirmative defense, and (2) because defendant, a wilful trespasser, cannot question plaintiff's title. These contentions we shall consider later.

We have already disposed of respondent's contention that the marital relation at the time the deed was executed was not proved. In our opinion the record is adequate to show this fact.

The argument that a presumption of regularity and legality adheres in the deed from Owyhee county to Dora A. Clark, and that this presumption is of sufficient weight to override the statutory presumption that the property acquired thereby, was community property, is necessarily bottomed upon the assumption that the purchase of this property by Dora A. Clark with her separate funds would not contravene the statutes hereinafter referred to. Neither appellant nor respondent has favored us with authorities upon this proposition, which we deem to be the vital point in this case. Counsel for respondent concedes that if this is community property, the statutes which prohibit a county commissioner from being interested, directly or indirectly, in any sale of property belonging to the county, were violated by George W. Clark and Dora A. Clark.

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