Jackson v. Baker

• Decision Date: 29 May 1906
• Citation: 48 Or. 155,85 P. 512
• Parties: JACKSON. v. BAKER.
• Court: Oregon Supreme Court

85 P. 512

48 Or. 155

JACKSON. v. BAKER.

Supreme Court of Oregon

May 29, 1906

Appeal from Circuit Court, Josephine County; H.K. Hanna, Judge.

Action by H.W. Jackson against G.W. Baker. Judgment for plaintiff and defendant appeals. Reversed.

This is an action to recover $1,000 paid by the plaintiff and his assignor to the defendant in consideration of an agreement by the latter to sell, and convey land entered by him as a homestead upon obtaining title thereto. The complaint alleges that in September, 1903, the plaintiff and defendant and one Hamilton were the owners as tenants in common of certain mining property, and that the defendant was in possession of 160 acres of adjoining land, which he had entered under the homestead laws; that at the date mentioned the parties referred to contracted and agreed with one Draper to sell and convey to him the mine and homestead for $25,000, and that it was agreed between the plaintiff and Hamilton and the defendant that if the entire sum should be paid for the property the former would pay to the latter out of their part of the proceeds $1,000 in consideration of his transferring to Draper the "legal title" to the land covered by the homestead, but that if he failed, or neglected to make such transfer he would return the money so paid; that thereafter Draper paid the $25,000 for the property, and plaintiff and Hamilton paid the defendant $1,000; that defendant never obtained title to the homestead because his entry was subsequently canceled for the reason that the land was mineral in character, and not subject to entry under the homestead laws, and defendant did not and cannot transfer the legal title thereto to Draper; that plaintiff has succeeded to all the rights of Hamilton in and to the money paid by them to the defendant and prior to the commencement of this action defendant promised and agreed to repay the same to him but has failed and neglected to do so. A demurrer to the complaint because it did not state facts sufficient to constitute a cause of action was overruled, and the defendant answered denying the material allegations, and affirmatively alleging that he only agreed to surrender and relinquish to Draper his homestead entry, and that the consideration for the $1,000 paid him by Hamilton was such surrender, and certain assessment and development work which he had done on the mining property. A reply put in issue the new matter pleaded in the answer, and a trial was had before the court and a jury. At the close of plaintiff's case the defendant moved the court to direct a verdict in his favor but this motion was overruled, and the cause submitted to the jury who returned a verdict in favor of the plaintiff. From the judgment entered thereon this appeal is taken.

A.S Hammond, for appellant.

A.C. Hough, for respondent.

BEAN C.J. (after stating the facts).

There is no bill of exceptions. The only question made on the appeal is that the contract between the plaintiff and Hamilton, and the defendant as alleged and set out in the complaint is illegal and void as against public policy, and ought not to be enforced by the courts. The...