Kine v. Turner

• Decision Date: 20 July 1895
• Citation: 27 Or. 356,41 P. 664
• Parties: KINE v. TURNER et al.
• Court: Oregon Supreme Court

41 P. 664

27 Or. 356

KINE v. TURNER et al.

Supreme Court of Oregon

July 20, 1895

Appeal from circuit court, Umatilla county; James A. Fee, Judge.

Suit by Pat Kine against Ida Turner and her husband. Decree for defendants. Plaintiff appeals. Affirmed.

J.J. Balleray, for appellant.

Wirt Minor, for respondents.

BEAN C.J.

This is a suit to enforce the specific performance of a parol contract for the conveyance of a small tract of land in what was formerly the Umatilla Indian reservation. The quarter section of which it forms a part was purchased for the defendant in April, 1891, by her father, Jehu Switzler at public sale by the government of the United States under the act of congress of March 3, 1885, providing for the allotment of a portion of the reservation lands to the Indians, and the sale of the surplus at public auction. The contract which plaintiff seeks to enforce was made between him and Switzler, as the agent of defendant, before the sale and was to the effect that if plaintiff would refrain from bidding for the land as he contemplated doing, and allow Switzler to purchase it at its appraised value, the defendant would, as soon as she got a patent therefor, convey to him the particular tract in controversy at the same price per acre that she should be compelled to pay for the entire 160 acres. In pursuance of this agreement, plaintiff, although present at the sale, did refrain from bidding on the land, and it was purchased by Switzler for his daughter without competition, and at the lowest price for which it could be sold under the law. Within two or three days thereafter, plaintiff went into possession of the land Switzler had agreed defendant would convey to him, and he has ever since resided thereon with his family, making valuable and permanent improvements, with the knowledge of, and without objection from, the defendant, until after she received her patent, when she repudiated and denied the contract, and refused to convey the land to plaintiff; and hence this suit. Briefly, these are the facts, as claimed by plaintiff, and upon which he relies for a decree. From this statement it will be perceived that he is confronted at the outset with the objection that a contract concerning the purchase and conveyance of land belonging to the United States, which is about to be offered for sale at public auction to the highest and best bidder, and having for its sole consideration the forbearance of one of the parties to bid at such sale, is illegal and void, and one which a court of equity will not enforce. The agreement between the plaintiff and Switzler, whether it was for the conveyance of the land in dispute, as claimed by plaintiff, or for a 20-year lease, as claimed by Switzler, was probably entered into at the time by both parties in good faith, for their supposed mutual benefit, and with no intention on the part of either to defraud the other. But this is not enough. The real question is whether the contract is not illegal because it contemplated a fraud upon the government of the United States, by stifling competition, thereby enabling Switzler to purchase at a price less than the land would otherwise have sold for. If so, it was void as against public policy, and plaintiff cannot recover in this suit, whatever may have been the motives of the parties, and however upright their intentions may have been, as between themselves. The aid of a court of equity cannot be invoked to enforce the performance of a contract for the conveyance of land, if it is contrary to the spirit and policy of the law, or against public policy or good morals. Pom.Spec.Perf.Cont. 280; Brake v. Ballou, 19 Kan. 397. In such case the court will leave the parties where it found them, and refuse to encourage the making of such contracts by lending its aid to enforce them. The courts have repeatedly refused to enforce the specific performance of the contract of a homesteader to convey a portion of his claim when he shall acquire title from the United States, although there is no prohibition against alienation in the homestead law, and no express forfeiture in case of alienation. Contracts of this character are deemed to be in violation of the spirit and policy of the homestead law, void as against public policy, and cannot be made valid by part performance. Oaks v. Heaton, 44 Iowa, 116; Anderson v. Carkins, 135 U.S. 483, 10 S.Ct. 905; McCrillis v. Copp (Fla.) 12 So. 643; ...