Coburn v. Bartholomew

• Decision Date: 09 August 1917
• Docket Number: 3010
• Citation: 50 Utah 566,167 P. 1156
• Court: Utah Supreme Court
• Parties: COBURN v. BARTHOLOMEW

167 P. 1156

50 Utah 566

COBURN v. BARTHOLOMEW

No. 3010

Supreme Court of Utah

August 9, 1917

Rehearing denied October 4, 1917.

Appeal from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by J. W. Coburn against Vern Bartholomew.

Judgment for plaintiff. Defendant appeals.

REMANDED with instructions.

Wm. B Higgin for appellant.

Willey & Willey for respondent.

THURMAN, J. FRICK, C. J., and McCARTY, CORFMAN, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

On the 31st day of March, 1910, at Burtner, Millard County, this state, plaintiff and defendant entered into a written agreement in words and figures as follows:

"This memorandum witnesseth that John W. Coburn agrees to purchase at the price of ($ 1,600) sixteen hundred dollars, the following described real estate situated in the county of Millard, state of Utah to wit: The S.E. 1/4 of the S.W. 1/4 of Sec. 6, T. 17 S., R. 6 W., S. L. M., and Vern Bartholomew agrees to sell said premises at said price and to convey to John W. Coburn, said purchaser, a good title thereon, subject to final proof and (25) twenty-five shares of water in the Melville Irrigation Company. Said land is desert land, and before final proof can be made said land will have to be irrigated, and said Coburn agrees to irrigate said land so proof can be made. And pending this proof V. Bartholomew agrees to have a water certificate made in the name of John W. Coburn and place in the State Bank of Millard County at Fillmore as security for the money paid, and when final proof is made Bartholomew agrees to make a deed and place in the bank in escrow with the water stock before second payment is made. These payments upon said land are to be made as follows: ($ 800) eight hundred dollars down, the receipt of which is hereby acknowledged, ($ 400) four hundred dollars in one year from date, and ($ 400) four hundred dollars in two years from date at 7 per cent. interest on deferred payments, interest payable annually."

In pursuance of said agreement plaintiff paid the defendant the said sum of $ 800, and the defendant caused a certificate of stock in the Melville Irrigation Company, a corporation, to be made in the name of the plaintiff, and placed the same in the bank referred to in the agreement. Plaintiff afterwards, during the month of May, 1910, entered into possession of said land and irrigated the same, and during the year 1910 was compelled to pay, and did pay, $ 100 as an assessment levied on said stock. In September of the same year defendant made and filed in the General Land Office of the United States his final proof for patent for said land to the effect that he had complied with the laws of the United States and the regulations of the land department in all respects relating to desert land entries, and at the same time, as part of said final proof, made affidavit to the effect that he was the sole owner of said land, and that no other person possessed any interest therein. Defendant afterwards filed in said land office another affidavit in which he stated that in March, 1910, he had sold to plaintiff a portion of said land, and had also sold another portion of said entry to one Selman. The defendant's application for patent was suspended, and he thereupon relinquished the same. Shortly afterwards his wife, Emma Bartholomew, entered the same tract of land and was in possession thereof at the date of the trial. At the time the written agreement was entered into, as before stated, defendant was in possession of said land under a desert land entry made in 1906, and as far as the evidence discloses, at the time said written agreement was entered into said entry was in good standing. After the failure of defendant's application for patent and his relinquishment thereof and entry by his wife, Emma Bartholomew, plaintiff demanded of defendant that he return to plaintiff the $ 800 paid defendant at the date of said written agreement, and interest thereon, and also demanded the said sum of $ 100 paid by plaintiff as assessment on said water stock. The defendant refused to pay the same or any part thereof. The foregoing, in substance, are the material facts found by the court, and likewise the material matters covered by the pleadings. Both the complaint and the answer contain other allegations, but in view of the findings of the court and the assignment of errors they are immaterial. The case was tried to the court without a jury, and judgment rendered for plaintiff for the sum of $ 900. Defendant appeals.

At the beginning of the trial, and before any evidence was introduced, defendant moved for judgment on the pleadings, which motion was overruled. That ruling of the court constitutes appellant's first assignment of error. He also assigns as error the judgment rendered by the court because, as defendant contends, the sums awarded by the court were paid by plaintiff for the purchase of the water stock and for the assessment thereon. It is also assigned as error that the judgment is contrary to law. These assignments constitute the issues presented by this appeal.

Under the first assignment of error, and by his brief filed herein, appellant contends that the court erred in overruling his motion for judgment on the pleadings for the reason, as he says, "the complaint showed on its face that it did not state facts which, if proved, would entitle the plaintiff to judgment against the defendant." The reasons assigned by appellant for this contention are:

"The complaint showed a contract entered into which was contrary to law and could not be enforced, and sought to recover damages for its breach."

In support of his position appellant relies upon section 2 of the act of Congress published in 35 Stat. L. U.S. p. 52 (U.S. Comp. St. 1916, section 4682), which reads as follows:

"That from and after the date of the passage of this act no assignment of an entry made under said acts shall be allowed or recognized, except it be to an individual who is shown to be qualified to make entry under said act, of the land covered by the assigned entry, and such assignments may include all or part of an entry; but no assignment to or for the benefit of any corporation or association shall be authorized or recognized."

It is quite manifest to the court that the section of the statute just quoted has no application to the facts of this case. That section was evidently intended to meet a case where an entryman assigned all or a part of his entry to an individual upon the understanding or expectation that the assignee would, in his own name, make final proof for patent. In that case, in order to guard against fraud and the issuance of patent to...