Ducie v. Ford

• Decision Date: 15 September 1888
• Citation: 8 Mont. 233
• Parties: DUCIE et al. v. FORD.
• Court: Montana Supreme Court

8 Mont. 233

DUCIE et al.

v.FORD.

Supreme Court of the Territory of Montana.

September 15, 1888.

Appeal from district court, Silver Bow county.

Action by John Ducie and James A. Murray against Thomas Ford. Demurrer to complaint sustained, and complainants appeal.

William Scanlon, for appellants.

Thomas L. Napton, for respondent.

LIDDELL, J.

The complainants allege that in 1878 they discovered and located a mining claim known as the “Figi,” situated in the county aforesaid, and what is known as the “Summit Valley Mining District.” That the necessary notice and declaratory statement were made, as required by the federal and territorial laws, and that they were in the peaceable possession of the premises until the 15th of March, 1881. That pending their ownership and possession the “defendant was about to proceed to procure” a patent from the government for the same land, under a patented location and claim designated as the “Odin Lode,” whereupon the plaintiffs notified the defendant that they possessed and owned the land under and by virtue of their location of the Figi lode. That the defendant, well knowing that he could not obtain a patent for the premises if the plaintiffs filed an adverse claim, entered into the following verbal agreement with the complainants. They were to abstain from filing any adverse claim, and relinquish possession of the premises, and the defendant was to procure the patent for the mine, and afterwards transferto them an undivided one-half interest in the property. The purchase was to be made conjointly, but in the name of the defendant, who was to act as agent and trustee for the plaintiffs, to the extent of a half interest, as before stated, and, upon demand, execute to them a conveyance therefor. They further aver that this agreement was carried out in good faith on their part by delivering possession of the premises, and by abstaining from filing any adverse claim; thereby permitting and enabling the defendant to procure a patent for said premises; and thereafter, from time to time, paid to the defendant their share of the purchase price. That on or about 15th of May, 1881, the defendant obtained the final receipt from the land-office for the purchase price of the land; and on the 1st of February, 1886, he obtained the government patent for the mine, which is carefully described in the complaint. They further set forth that on 2d of August, 1886, they made a demand on the defendant for a title to half the premises; but he refused to comply, and claimed to be the owner of the entire property. In addition to these averments, they set forth their ability and willingness to pay whatever may be due by them towards procuring a patent, or on account of the agreement; but the defendant refuses to accept anything, or to say how much is due by the plaintiffs. They aver bad faith and fraud on the part of the defendant, and, because it is impossible to restore them to their original circumstances and position, they pray for an order decreeing them to be the owners of a half interest in the property, and for a specific performance, and for an accounting for rents, issues, and profits. To this complaint the defendant demurred, for the reason (1) that it does not state facts sufficient to constitute a cause of action; (2) that, if there be such a contract, it is null and void for being within the statute of frauds; (3) that the complaint does not set forth part performance; that it is ambiguous and uncertain in this: that it does not show how much, if anything, they have paid defendant, nor how much they were to pay or are willing to pay; and it is contradictory, in that it alleges a withdrawal of adverse claims, and at another time that none were filed; and, further, that it alleges a payment to the defendant at different times of their share of the purchase money for the patent; and in another place that they were willing to pay whatever may be due by them towards procuring the patent, and carrying out the agreement. The demurrer being sustained, the plaintiffs elected to stand upon their complaint, and appeal from a judgment rendered accordingly in favor of the defendant.

Possession and ownership of land have always been a matter of so much importance to the peace and happiness of society that the law-maker has considered it peculiarly deserving of his care. Particularly was this the case in England, from whence we derive our statute of frauds; which was not only enacted to prevent frauds and perjury, but was also intended to place the title to real estate beyond the uncertainty of parol evidence, either on account of the defects of memory, or the interest, whims, and caprices of witnesses. So, in all the states, we find some corresponding law upon this subject; while the territorial legislature has declared in unmistakable language that every contract for an interest in lands shall be void unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and signed by the party leasing or selling. Section 219, Comp. St. p. 652. Section 217 is even more sweeping in its terms. It declares that no estate or interest in land, other than leases for the space of one year, shall hereafter be created, granted, or assigned, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing signed by the party or his lawful agent, granting, creating, or assigning, surrendering, or declaring the same. The wisdom of such a law is manifest, but never more apparent than in the present instance; for, notwithstanding the plain and emphatic terms of the statute, we find the parties to this litigation ignoring the law, making verbal contracts for an estate in lands, differing between themselves as to its terms, and appealing to the courts for relief from embarrassments created by their own acts.

The complainants base their right of action upon a resulting trust in their favor created by operation of law; but, under the pleadings as presented in the record, we are only required to pass upon the sufficiency of the complaint to take the case out of the statute of frauds, and to sustain the equitable prayer for a specific performance. Inasmuch as contracts within the statute of frauds are not illegal, but merely voidable, the sufficiency of the complaint is properly raised by a demurrer,-a practice which is now considered well settled, though its propriety has frequently been doubted. Story, Eq. Pl. § 503; Browne, St. Frauds, §§ 508, 509. Plaintiffs rely upon these points especially to take the case out of the statute: (1) Abstaining from filing an adverse claim, and relinquishing possession to the defendant; (2) the fact of having paid their share of the purchase price after he obtained the patent; (3) that it is impossible to restore them to their former situation, and therefore a specific performance is necessary to protect them from irreparable injury.

A careful examination of the complaint will show very plainly that the plaintiffs and defendant were each claiming adverse possession and ownership of the same mining claim or ground; and when the complainants, as they allege, relinquished their right of possession, they conferred...