Davis v. Wilson

• Decision Date: 05 November 1921
• Docket Number: 5784.
• Parties: DAVIS et al. v. WILSON.
• Court: U.S. Court of Appeals — Eighth Circuit

276 F. 672

DAVIS et al. v. WILSON.

No. 5784.

United States Court of Appeals, Eighth Circuit.

November 5, 1921

C. M Botts, of Albuquerque, N.M. (H. C. Denny, of Gallup, N.M and John F. Simms, of Albuquerque, N.M., on the brief), for plaintiffs in error.

A. T Hannett, of Gallup, N.M. (Bert D. Richards, of Gallup, N.M on the brief), for defendant in error.

Before CARLAND, Circuit Judge, and YOUMANS and JOHNSON, District judges.

YOUMANS District Judge.

This was a suit by defendant in error against ten defendants in the court below. Four of the defendants were served with process. The suit was dismissed against one of these four, leaving three defendants below, Charles W. Davis, L. R.

Goehring, and John J. Emmons. A written stipulation was filed waiving a jury. Judgment was rendered against Davis, Goehring, and Emmons, and they bring error. The complaint alleged fraud and deceit in the selling of certain real estate; the fraud as charged being that the plaintiffs in error represented to defendant in error Wilson, plaintiff below, that they owned the fee-simple title to a certain tract of land in McKinley county, N.M., that they did not in fact own the fee-simple title to said land, that plaintiff believed the representations made to him, and acting thereon purchased the land from the plaintiffs in error and paid them the purchase price therefor. The testimony shows that each of the plaintiffs in error made a power of attorney to one G. S. Willhoite. These separate powers of attorney were the same as to the terms. That of Davis reads as follows:

'Know all men by these presents, that I, Charles W. Davis, do hereby nominate, constitute and appoint G. S. Willhoite of the county of McKinley my true and lawful attorney in fact for me and in my place and stead, to locate for me and in my name, placer or oil claims upon the public domain of the United States of America in the county of McKinley, and upon the location of such claims to enter into contracts of lease or sale of the same, and in my name to execute good and sufficient instruments of lease or conveyance of the same and to do everything requisite or necessary in and about the handling of said oil locations as my attorney in fact may seem meet, hereby ratifying and confirming everything my said attorney in fact may or can do in the premises, with full power of substitution and revocation.'

The testimony also shows that certain representations were made to Wilson by a Mr. Brown and a Mr. Smith and G. S. Willhoite. It appears from the testimony that Willhoite acting for himself and certain persons who had given him powers of attorney, including the three plaintiffs in error, had located certain placer or oil claims upon the public lands in McKinley county, N.M. Brown and Smith had entered into an agreement with Willhoite to purchase these claims. Brown and Smith became acquainted with Wilson and began negotiations to sell him the claims. Brown and Smith had contracted to buy the claims at $3 per acre, and in their negotiations with Wilson they agreed to sell him the same claims at $10 per acre. Wilson's testimony shows that he knew that the property was a placer claim and that the title was in the United States. Wilson testified as follows:

'Q. What was said by Smith relative to the ownership of this land, that is, relative to who owned it and who had the right to sell it? A. Mr. Smith told me that the land was owned by Mr. Willhoite and at that time they would not be able to give me a warranty deed which I asked for, but that they had an absolutely good title to the land. * * *

'Q. Relate to the court what happened after the price was quoted relative to closing the deal; how was that done? A. After the price was made to me of $10 an acre, and after he showed me geological reports, he told me that the well had been tested, and he showed me a telegram to that effect, that it was making 72 barrels a day. * * * He said that since the land had been priced to me at $10 an acre and the well had been tested and was a better well than they had expected, that the price had jumped to $20.

'The Court: Was this well on this particular piece of land? A. It was not, but supposed to be near it. He told me that it affected the price, but he would go ahead and give me the deed since we had started transactions, and that he considered it a very good buy. He was familiar with the field, but he would give me a placer claim title. I told him I did not understand that and before I would turn over my money I would have to be guaranteed a title. * * *

'Q. When you first had the conversation relative to the property the purchase of it in the hotel were both Brown and Smith present? A. Mr. Brown told me Smith would be in in a day or two and he would explain fully the status of the placer filing; he was connected with the Carter Oil Company. When he did arrive, we went up to the room, and he explained about placer claims being subject to good faith, just as good as a man would want.

'Q. What did he say as to the title; did he describe it in any way about any interest that the government might have in the land? A. He said that they had relinquished-- that the government had-- to Mr. Willhoite, and that the only reason he didn't have a patent to the land was there was a certain time had to pass before it would be issued; but that's all it depended on and then he would get a patent; that the title he would give me would be just as good as required; that the Carter Oil Company had several and that a placer title is just as good as a school lease. I told him I didn't understand it and would want a recommendation from a bank, a strong bank, as to the veracity of these men who were selling the land; that if they could recommend them and give me a certificate of title we would talk business.'

Wilson himself then sent the following telegram to the Gallup State Bank, Gallup, N.M.: 'Wire opinion of placer filings as sold by G. S. Willhoite. ' Wilson received the following reply to that telegram from the Gallup State Bank: 'It is our opinion that Placer locations as sold by Willhoite are as represented. Seven Lakes field from present reports looks promising. ' It is thus seen that the representation made by Smith and Brown to Wilson was that the land was a placer claim; that the title was in the United States; that Wilson in his telegram made inquiries about 'placer filings,' and received a reply with reference to 'placer locations.' The deed executed by Willhoite in his own name and in the names of those whom he represented by powers of...