Harris v. Johnson

• Decision Date: 08 September 1913
• Citation: 134 P. 1048,75 Wash. 291
• Parties: HARRIS v. JOHNSON et al.
• Court: Washington Supreme Court

134 P. 1048

75 Wash. 291

HARRIS v. JOHNSON et al.

Supreme Court of Washington

September 8, 1913

Department 1. Appeal from Superior Court, Lincoln County; F. K. P Baske, Judge.

Action by J. M. Harris against Erick Otto Johnson and others. From a judgment for defendants, plaintiff appeals. Reversed, with directions.

Freece & Pettijohn, of Davenport, for appellant.

N. D Walling and John L. Wiley, both of Spokane, for respondents.

GOSE J.

This is a suit upon a promissory note. A judgment was entered dismissing the action. Plaintiff has appealed. The facts are these:

On the 29th day of December, 1900, one Joseph W. Blacker filed a homestead entry upon certain land in Lincoln county. Mr Blacker died in 1902 while his entry was in full force. In obedience to a request made by the deceased during his last illness to the appellant, the appellant advised the daughter and only heir of the deceased of his death and of his homestead right. She then and thereafter resided in the state of Indiana. Subsequent to her father's death she appointed the appellant her agent, with authority to attend to her property rights in Lincoln county. The appellant thereafter took charge of the homestead, did some plowing and clearing, maintained the fencing, cropped the land in cultivation, and expended money in successfully defending a contest against the Blacker entry. On the 30th day of December, 1907, the appellant, having a homestead right, tendered a homestead filing on the land to the United States Commissioner. The application was rejected, and was thereafter held by the Commissioner to be tendered at a later date. On October 28, 1908, the Blacker entry not having then been canceled, and the appellant being in possession of the homestead, he sold the right of the daughter, together with his own rights in the homestead, and the improvements thereon, of the value of about $200, to the respondent Erick Otto Johnson, hereafter called the respondent, for a consideration of $900, evidenced by the note in controversy, signed by the respondent and his corespondents, his father and mother, respectively, as sureties. It was agreed that $500 of this sum should go to the daughter, and the remainder should belong to the appellant. The appellant upon that day withdrew his application to file and the filling fee, and the respondent tendered a homestead filing and took and has since retained possession of the land. His application was rejected on account of the Blacker entry. Later he tendered a second filing, which being rejected, he appealed to the Commissioner of the General Land Office, who allowed his entry, and directed a cancellation of the Blacker entry. The Blacker entry was canceled on the 26th day of October, 1911, and the respondent's filing was accepted on the 4th day of November next ensuing. The respondent had lived a short distance from the land for about four years before he made the bargain, and testified that when approached by the appellant that he said to appellant that he did not know that there were any homesteads in the country. He also testified that the appellant told him that he himself could file a homestead on the land. The respondent, at the time he tendered his first filing and before he made the note, knew that his application would not be accepted until the Blacker entry had been canceled. The evidence upon this question is as follows:

Mr. Fraser, the United States Land Commissioner, testified in substance that he, the respondent, and the appellant discussed the Blacker entry at the time the respondent tendered his filing; that the question of whether a contest would stand against the land was discussed, and that the witness advised them that in his opinion it would not; that there was nothing said as to when the Blacker entry would be canceled; that 'there was no time stated as to when Mr. Johnson would obtain his filing, he was to wait until the cancellation of the Blacker entry'; that he advised the respondent 'not to put expensive improvements on the place until his filing was accepted'; and that it was understood 'that he was to hold the papers [meaning the filing tendered by the respondent] until the Blacker entry was canceled.' The appellant testified that when he approached the respondent in reference to the transaction that he told him that the land was in his care. 'That I did not feel disposed to use my own homestead right on it, and I would locate him on it and turn over the improvements;' that he told him that he had tendered a filing; that 'I would withdraw my filing, and he would have to wait until the cancellation of the Blacker entry to get his filing papers.' Touching this question, the respondent was asked: 'Q. Was that all that took place in Mr. Fraser's office?' And answered: 'Well, Mr. Fraser was going to send those papers, filing papers, into the land office at Spokane when the Blacker papers would be canceled, or when the papers would be waived; I don't know.' The appellant testified further that he paid $36 in defending a contest instituted against the Blacker entry, which was later decided in favor of the Blacker heir. He further testified that: 'Before I let the land go back to the government, I was going to take it myself, and that was my intention when I filed with Fraser.'

The court, after finding the facts substantially as stated concluded, as a matter of law, that the Blacker entry had expired by limitation when the note was made, and, although...