Gross v. Hafemann

• Decision Date: 27 November 1903
• Docket Number: Nos. 13,627 - (126).,s. 13,627 - (126).
• Citation: 91 Minn. 1
• Parties: FRED A. GROSS and Others v. GUSTAV HAFEMANN.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 1

91 Minn. 1

FRED A. GROSS and Others v. GUSTAV HAFEMANN.¹

Nos. 13,627 - (126).

Supreme Court of Minnesota.

November 27, 1903.

Appeal by defendant from an order of the district court for St. Louis county, Ensign, J., overruling a general demurrer to the complaint. Affirmed.

Roger S. Powell, for appellant.

John E. Davies and Davis, Hollister & Wilson, for respondents.

COLLINS, J.

Plaintiffs and defendant entered into a written contract whereby plaintiffs agreed to bear one-fourth of the expenses incurred by defendant in making final proof under the United States pre-emption act to eighty acres of land in St. Louis county, while the defendant was to pay and did pay them $100 for locating him on the land. He further agreed to give to plaintiffs

"One-fourth part of the price and proceeds that may be hereafter obtained for the sale of said lands after he has obtained title thereto from the United States, deducting the one-fourth expenses as above provided and can find a purchaser for, and sell the same, at its proper value."

The complaint set out this contract in full, and alleged that subsequently the defendant made final proof and received a patent to the lands from the government. That he thereafter sold the standing timber upon the land, and accounted to plaintiffs for one-fourth of the amount received, fully complying with the terms and conditions of the contract up to that time. That subsequently, about ten years later, in the year 1902, he sold and conveyed the land to a third party for the sum of $22,500, and has failed and refused to pay any part thereof to the plaintiffs. The action was brought to recover the one-fourth part of the amount for which the land was sold as before stated. A general demurrer was interposed to this complaint, and it was overruled by the court below.

On appeal the single question presented is whether or not this agreement contravenes the terms of section 2262 of the Revised Statutes of the United States, which, in so far as pertinent here, reads as follows:

"Before any person claiming the benefit of this chapter is allowed to enter lands he shall make oath before the receiver or register of the land district in which the land is situated * * * that he has not settled upon and improved such land to sell the same on speculation, but in good faith to appropriate it to his own exclusive use; and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person whatsoever, by which the title which he might acquire from the government of the United States should inure in whole or in part to the benefit of any person except himself. * * *" The provisions of this section have frequently been before this court in cases where agreements had been entered into before final proof for the conveyance of all or part of the pre-empted land, and also in cases where attempts were made to recover money advanced on repudiated contracts of that character, and, it has been held universally that they are utterly void and incapable of becoming a foundation for any rights. St. Peter Co. v. Bunker, 5 Minn. 153 (192); Evans v. Folsom, 5 Minn. 342 (422); Bruggerman v. Hoerr, 7 Minn. 264 (337); Ferguson v. Kumler, 11 Minn. 62 (104). It has also been held that a mortgage upon such lands, executed after the pre-emptor had made his proofs, but before the patent issued, pursuant to a prior agreement, is void. McCue v. Smith, 9 Minn. 237 (252); Woodbury v. Dorman, 15 Minn. 272 (338). But in a later decision (Jones v. Tainter, 15 Minn. 423 [512]) such a mortgage was declared valid, expressly overruling the earlier cases. Since this decision, in 1870, the doctrine there announced, and which has become a rule of property in this state, has not been questioned. We shall not disturb it at this time, whatever may be our views as to the sufficiency of...