Hogan v. Thrasher

• Decision Date: 07 February 1925
• Docket Number: 5575.
• Parties: HOGAN v. THRASHER.
• Court: Montana Supreme Court

233 P. 607

72 Mont. 318

HOGAN v. THRASHER.

No. 5575.

Supreme Court of Montana

February 7, 1925

Appeal from District Court, Powell County; Geo. B. Winston, Judge.

Suit by David Hogan against Antwine Thrasher. From a decree for defendant on his cross-petition, plaintiff appeals. Remanded with directions to modify, and affirmed, as modified.

W. H Maloney and C. S. Wagner, both of Butte, for appellant.

Keeley & Keeley, of Deer Lodge, for respondent.

HOLLOWAY J.

In 1902 Antwine Thrasher leased from the state of Montana the east half of the northeast quarter and the east half of the southwest quarter of section 36, township 10 north, range 11 west, and about the same time purchased from George Bergman some improvements and secured an assignment from Bergman of his lease from the state for the southeast quarter of the same section. Thrasher also went into the possession of lots 2 and 3 of section 31, township 10 north, range 10 west, then public land of the United States. David Hogan and George Anthony had theretofore inclosed a portion of lots 2 and 3 and Hogan had cultivated 15 or 20 acres of the land. In 1904 Thrasher entered into a contract with the state to purchase the southeast quarter of section 36 and about the same time the United States conveyed lots 2 and 3 to the Northern Pacific Railway Company as a part of its land grant. In 1908 Thrasher contracted with the state to purchase the east half of the northeast quarter and the east half of the southwest quarter of section 36, and during the same year Hogan purchased lots 2 and 3 from the railway company. In December, 1918, Thrasher completed payment for the southeast quarter of section 36 and received a patent from the state, and, in December, 1919, he completed payment for the east half of the northeast quarter and the east half of the southwest quarter of section 36, and a patent therefor was issued by the state to his wife, Kate Thrasher. From 1900, or earlier, Hogan was in possession of a triangular piece of land lying in the northeast quarter of the southwest quarter and the northwest quarter of the southeast quarter of section 36-land included in Thrasher's contracts-and later conveyed to him and his wife by the patents from the state. Throughout the record this triangular piece is referred to as the "irregular tract," and for convenience will be so designated hereafter. In 1922 Hogan commenced this action to recover possession of lots 2 and 3. The complaint follows the form usually employed in an action in ejectment.

In his answer Thrasher admits his possession of lots 2 and 3, the demand made by plaintiff, and his refusal to surrender possession, and otherwise denies all the allegations of the complaint. The answer then sets forth several affirmative defenses, including laches and estoppel in pais, and also a cross-complaint in which Thrasher alleges that in 1908 he and his wife on the one part, and Hogan on the other, entered into a parol agreement that Thrasher and wife would convey the irregular tract in section 36 to Hogan, and in exchange therefor Hogan would convey to Thrasher lots 2 and 3, the deeds to be exchanged as soon as the parties acquired title. The specific performance of that contract is demanded. In reply Hogan pleaded as an estoppel the decree in a cause numbered 517. The trial of the present action was had to the court without a jury and resulted in a decree for the specific performance of the parol agreement, and from that decree plaintiff prosecuted this appeal.

1. In support of their contention that the cross-complaint does not state facts sufficient to constitute a cause of action for the specific performance of the contract pleaded, counsel for plaintiff say:

"It fails to allege fraud under the doctrine of this court so frequently announced, which finds expression and elucidation in the case of Juby v. Craddock, 56 Mont. 557, 559, 185 P. 771."

Fraud which is said to be the foundation of the doctrine of part performance of a parol agreement sufficient to take the case out of the operation of the statute of frauds, does not mean actual fraud in the sense of conscious deceit, but rather in the sense, familiar to courts of equity, of unjust or unconscionable conduct which works a detriment for which courts of law are unable to afford an adequate remedy. In Gallagher v. Gallagher, 31 W.Va. 9, 5 S.E. 297, the court said:

"The fraud, which will entitle the purchaser to a specific performance, is that which consists in setting up the statute against the performance after the purchaser has been induced to make expenditures, or a change of situation in regard to the subject-matter of the agreement upon the supposition that it was to be carried into execution, and the assumption of rights thereby to be acquired; so that the refusal to complete the execution of the agreement is not merely a denial of rights which it was intended to confer, but the infliction of an unjust and unconscientious injury and loss. In such case the vendor is held by force of his acts or silent acquiescence, which have misled the purchaser to his harm, to be estopped from setting up the statute of frauds."

This explanation of the doctrine has been accepted in numerous cases, many of which will be found cited in the notes to 36 Cyc. 644.

The cross-complaint herein does set forth the facts necessary to constitute fraud in the sense that the term is used in a case of this character.

Juby v. Craddock was an action to foreclose a mortgage in which the defendants attempted but failed to plead fraud as a defense. The language employed by the court was appropriate enough to the facts there presented, but the decision does not have any particular application to the case before us. The essential averments of a complaint for specific performance will be found stated in 20 Ency. Pl. & Pr. 434, in 36 Cyc. 773, and 25 R. C. L. 330.

Again it is insisted that the cross-complaint discloses that defendant was guilty of laches, and this is predicated upon the fact that it does appear that defendant completed his title to the irregular tract in 1919 and that he did not demand an exchange of deeds until 1922. The agreement pleaded presents the case of an exchange, or, in common parlance, a trade of land for land, in which each party occupies the dual rôle of vendor and vendee. But so far as the relief here sought is concerned, defendant occupies the position of vendee, and his cross-complaint discloses that he has been in possession of lots 2 and 3 continuously since the agreement is alleged to have been made in 1908, and that the first intimation he had that plaintiff would not perform was in 1922. In Wright v. Brooks, 47 Mont. 99, 130 P. 968, this court disposed of the contention now made adversely to plaintiff. It was there said:

"Moreover, the weight of authority is that the vendee in possession cannot be barred from specific performance by mere delay, however long, because his possession is a continued assertion of his claim. He may rest in security until his title or right of possession is attacked."

Hogan does not pretend that he was injured in any degree by the delay or that he was induced thereby to alter his position to his prejudice. In Brundy v. Canby, 50 Mont. 454, 148 P. 315, this court said:

"Laches may arise from an unexplained delay short of the period fixed by the statute of limitations, still laches will not be presumed from such a delay alone. Wright v. Brooks, 47 Mont. 99, 108, 130 P. 968. It must be made to appear affirmatively that unusual circumstances exist which on account of such delay render the proceeding inequitable; else relief cannot be denied on this ground."

In Hall v. Hall, 70 Mont. ---, 226 P. 469, we said:

"Mere delay of itself is not laches, but to constitute laches the delay must have worked injury to another." Citing Pomeroy's Equity Jurisprudence (4th Ed.)§ 1442.

In Wolf v. Great Falls, W. P. & T. Co., 15 Mont. 49, 38 P. 115, the plaintiff vendee had been ousted from possession more than three years before he instituted the suit for specific performance, and that fact was declared to be the determining consideration in the conclusion reached by the majority of the court. The doctrine of that case cannot be applied to the facts presented by the cross-complaint before us. We think the pleading is not open to the attacks made upon it.

2. It is urged that the evidence is insufficient to sustain the findings made by the trial court. Those findings-33 in number-cover 27 pages of the printed record and only the briefest reference to them may be made.

In effect, the court found that ever since 1902 plaintiff has had the irregular tract inclosed with lands owned by him lying immediately to the north; that the fence between the irregular tract and other lands owned by the defendant in the south half of section 36 has been maintained at all times by plaintiff and defendant, one-half thereof by each; that, by reason of its location and topography, the irregular tract can be farmed more conveniently and advantageously with plaintiff's lands lying immediately north, than with the other lands of defendant: that plaintiff has been in possession of the irregular tract continuously since 1902, farming the same and taking the crops therefrom every year and appropriating them to his own use; that in 1902 defendant went into possession of lots 2 and 3 and inclosed them by fences with lands then held by him in section 36; that lots 2 and 3 can be farmed more conveniently and advantageously with the lands owned by defendant than with any other lands; that ever since 1908 defendant has been in possession of lots 2 and 3, cultivating the farming land thereon and removing the crops therefrom every year and appropriating them to his own...