Gumaer v. White Pine Lumber Co.

• Decision Date: 23 December 1905
• Citation: 11 Idaho 591,83 P. 771
• Parties: GUMAER v. WHITE PINE LUMBER COMPANY
• Court: Idaho Supreme Court

83 P. 771

11 Idaho 591

GUMAER v. WHITE PINE LUMBER COMPANY

Supreme Court of Idaho

December 23, 1905

CONTRACT TO PURCHASE REAL ESTATE-RIGHTS OF PARTIES TO SELL TIMBER UNDER CONTRACTS TO PURCHASE-SUFFICIENCY OF EVIDENCE TO SUSTAIN VERDICT-REQUEST TO INSTRUCT JURY WILL ONLY BE REVERSED WHEN.

1. Contracts to purchase real estate must be in writing and only convey such rights as are shown by the contract.

2. A party accepting a contract to purchase real estate that provides that no timber shall be cut or removed from the ground until the contract has been complied with in its entirety, has no power or right to sell the timber growing on the land, with permission to remove the same, until the contract is fully completed.

3. Where the evidence is sufficient to support the verdict or there is a material or substantial conflict in the evidence the judgment will not be reversed.

4. Where it is shown that the trial court refused to give requests to charge the jury on certain issues, and the record does not show the instructions given by the court on its own motion, this court cannot determine whether there was error in such refusal, as it is presumed the court fully and fairly instructs on all the issues involved.

(Syllabus by the court.)

APPEAL from the District Court of Kootenai County. Honorable Ralph T. Morgan, Judge.

Judgment for the plaintiffs. From an order overruling a motion for a new trial, defendant appeals. Judgment affirmed.

Judgment affirmed, with costs to respondents.

Charles L. Heitman, for Appellant.

The declaration or acts of a grantor, made or done after the delivery of his deed, are not admissible to disparage his deed, though admissible for the purpose of sustaining it. (Ord v. Ord, 99 Cal. 523, 34 P. 83; Bury v Young, 98 Cal. 446, 35 Am. St. Rep. 186, 33 P. 338; Emmons v. Barton, 109 Cal. 670, 42 P. 303; Bigelow on Fraud, 171; Arnegaard v. Arnegaard, 7 N. Dak 475, 75 N.W. 804, 41 L. R. A. 258.) The complaint in this action in express language is based upon a penal statute, to wit, section 4531 of the Revised Statutes of Idaho. The supreme court of Montana, in construing a similar statute, says: "It is needless to observe that the law is highly penal in its character. By way of punishment, it subjects the wrongdoer in certain cases to an extraordinary liability for the property of another appropriated to his own use." (McDonald v. Montana Wood Co., 14 Mont. 88, 43 Am. St. Rep. 616, 35 P. 670; Keyes v. Prescott, 32 Vt. 86; Hughes v. Stevens, 36 Pa. 320.) Possession is title. It is not strong title, but is evidence of some interest, sufficient to put the opposite party on guard. (Feirbaugh v. Masterson, 1 Idaho 135.) A purchaser of an estate who knows that it is in the possession of a person other than the vendor with whom he is dealing is thereby charged with a constructive notice of all the interest, right and equity which such possessor may have in the land. (2 Pomeroy's Equity Jurisprudence, 2d ed., sec. 614, and cases cited.)

Robertson, Miller & Rosenhaupt, W. L. Husbands, P. C. Shine and Edwin McBee, for Respondents.

This waiver of treble damages did not mislead defendant to its prejudice in its defense. It was entirely proper to permit this waiver; the allegations were in no way charged. (Rev. Stats. 1887, sec. 4225; Aulback v. Dahler, 4 Idaho 654, 43 P. 322; Hawkins v. Pocatello Water Co., 3 Idaho 766, 35 P. 711; People v. Slocum, 1 Idaho 62-74; Kelly v. Clark, 21 Mont. 291, 69 Am. St. Rep. 668, 42 L. R. A. 621, 53 P. 959.) Courts under the statute disregard defects of pleading not affecting substantial rights. (Rev. Stats. 1887, sec. 4231.) The defense being based on a claim for growing trees and rights of way extending for five years, claiming through a verbal agreement and against a positive written prohibition in the contract under which appellant claims, renders such claim void as against the statute of frauds. (Thayer v. Rock, 13 Wend. (N. Y.) 53; 1 Mechem on Sales, sec. 336.) The property was conveyed by the so-called bill of sale which was neither signed by the Northern Pacific Railroad, the owner of the land, or by Mrs. Gumaer, the purchaser thereof, and could convey no title. (Laws 1887, sec. 6007; McGinness v. Stanfield, 6 Idaho 372, 55 P. 1020; People v. White, 6 Cal. 75; Comp. Code, sec. 2400, and cases there cited.) The court will presume, in the absence of the record in favor of the validity of the judgment of the court below, that proper instructions covering the point were given. (Hopkins v. Utah Northern R. R. Co., 2 Idaho 300, 13 P. 343; State v. O'Donald, 4 Idaho 343, 39 P. 556; Pennsylvania Co. v. Roy, 102 U.S. 451, 26 L.Ed. 141. See Elliott's Appellate Procedure, par. 701.)

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

The facts are stated in the opinion.

STOCKSLAGER, C. J.

This complaint alleges that the defendants--respondents--are husband and wife; that defendant--appellant--is a private corporation under authority of the state of Washington; that plaintiffs are the owners of certain lands in Kootenai county, which is community property, and that they are in possession of such lands. That the defendant, at divers and sundry times within the past twelve months, wrongfully unlawfully and willfully, without any title or authority so to do, entered upon said lands above described, cut and removed therefrom and off of said lands quantities of valuable timber then and there growing upon said lands and belonging to and being the property of the plaintiffs, with full knowledge of the ownership of said lands and timber by plaintiffs, and full knowledge of the fact that defendant had no right or title to said lands or timber or any authority to enter upon said lands or cut or remove any of said timber therefrom. Then follows an estimate of the kind, quantity and quality and value of such timber alleged to have been cut and removed from said lands to the said mill of appellant, and there sawed said timber into lumber and converted the same to its own use. Another allegation is that defendant, at the same time and times of cutting and removing said timber from plaintiffs' lands, destroyed and converted to its own use eighty rods of rail fencing on said lands belonging to plaintiffs, which fencing was at the time of said conversion and destruction of the value of $ 100. Also at the same time and times defendant took, destroyed and converted to its own use two thousand seedling apple trees, the same then and there being in a nursery on plaintiffs' land, the value of which is alleged to be $ 500. Plaintiffs pray for judgment as follows: For the timber, $ 5,529.25; fence, $ 100; apple trees, $ 500. The answer admits that respondents are husband and wife, and that the defendant is a private corporation as alleged in the complaint. All the other allegations are denied. As affirmative defense the defendant avers that at a time long prior to the dates mentioned in plaintiffs' complaint, and at a time prior to plaintiffs becoming possessed of any right, title, claim or interest in or to said lands, to wit, November 12, 1901, and for a long time prior thereto, the North Idaho Land Company, Limited, a corporation, was the sole and exclusive owner and holder of a contract for the purchase of the premises described in plaintiffs' complaint, including all timber growing or being upon said premises from the Northern Pacific Railway Company, a corporation, being then the owner in fee of the whole of said premises, and the said North Idaho Land Company, Limited, was upon said date and for a long time prior thereto had been in full, complete and absolute possession of said premises. That on said date, November 12, 1901, said North Idaho Land Company, Limited, for a valuable consideration, sold, assigned, transferred and delivered, by good and sufficient bill of sale to the White Pine Lumber Company, a corporation, all its right, title, claim and interest in and to all the growing, standing or down timber upon said lands suitable for sawing purposes, down to the size of ten inches in diameter, sixteen feet from the ground, together with the privilege and right to go upon and across said premises for the purpose of cutting and removing said timber therefrom, which bill of sale is annexed to this answer, marked exhibit "A," and made a part, etc., and the said defendant then and there entered into the possession and occupancy of said lands for the purpose of cutting and removing said timber therefrom, and thereafter continued in the sole and exclusive possession and occupancy of said lands at all times prior to the first day of September, 1903, and defendant alleges that said Howard B. Gumaer was on the twelfth day of November, 1901, and for a long time prior thereto had been, and is now, an officer, to wit, a trustee of the North Idaho Land Company, Limited, and that the said sale and delivery of said timber to defendant as hereinbefore alleged was made with the full knowledge and consent, and the acquiescence and approval of the said Gumaer and his wife, and defendant alleges that whatever right, title or interest said plaintiffs, or either of them, have or claim to have in said premises was acquired with full knowledge and information concerning this defendant's right, title and interest in and to the timber growing and being thereon; and defendant alleges that said plaintiffs and each of them have repeatedly, both before and after they began to claim and assert that they had acquired some right, title, claim or interest in or to said premises, or some portion or part thereof, recognized and confessed to this defendant by word and action that this defendant was the owner and entitled to cut and remove all timber from said lands measuring in diameter over and above...