Mayger v. Cruse

• Decision Date: 08 January 1885
• Citation: 5 Mont. 485
• Parties: MAYGER v. CRUSE and others.
• Court: Montana Supreme Court

5 Mont. 485

MAYGER

v.CRUSE and others.

Supreme Court of the Territory of Montana.

Filed January 8, 1885.

Appeal from Third district, Lewis and Clarke county.

E. W. & J. K. Toole, for appellant.

Sanders & Cullen and Thomas J. Lowry, for respondents.

GALBRAITH, J.

This is an appeal from a judgment rendered in consequence of an order sustaining a demurrer to the complaint. The action is to compel the specific performance of an alleged contract. The allegations of the complaint are in substance as follows, viz.:

“That on the third day of May, 1879, the defendant Thomas Cruse was the owner of, and as such in the actual occupation and possession of, a certain quartz mining claim, situated in Ottoway mining district, in the county of Lewis and Clarke, Montana territory, known as the ‘Pine Tree’ or ‘Bon Mahon Lode.’ A description of the property is given. That the said lode was by the locator thereof, and his successors in interest, deeded to the said defendant Thomas Cruse, who, on the third day of May, 1879, held the legal and equitable title to the same; that on the said third day of May, 1879, the defendant Cruse entered into a certain contract with this plaintiff, whereby, in consideration that this plaintiff would render services to said defendant in and about compromising and settling a certain conflicting claim and matter of controversy then existing between one Larry Walsh and Lamartine C. Trent and the said Thomas Cruse, concerning the property aforesaid and the title thereto, he would, in the event such dispute and controversy was settled and compromised by said plaintiff, convey to this plaintiff, by a good and sufficient deed, one undivided one-third of the said property so acquired and secured by said settlement or compromise,-the said property at that time being undeveloped and of little value, and the said services being a fair and reasonable compensation for the interest so to be acquired; that in pursuance of said contract this plaintiff did proceed and compromise and settle the said dispute and controversy as the agent for said defendant, and did procure and obtain from said parties a perfect and complete title, including the right, title, and claim of said parties to all of the said lode claim, save and except a portion thereof described in the complaint, and being three hundred and fifteen feet(linear) on said Pine Tree lode; that, in pursuance of said settlement and compromise, the said Walsh and Trent executed to said defendant a good and sufficient deed for all the balance of said mining claim embraced in the said Pine Tree and Bon Mahon lode claim, by reason whereof he became seized and possessed of the same, and the legal title thereto, and let this plaintiff into the occupancy and possession of his said one-third interest thereof in accordance with the terms of said contract, and still holds, occupies, and possesses the same; that since the performance of said contract by this plaintiff, and the acquirement of possession of said property by him, he has, as contenant with said defendant, expended in money and labor upon said property, and other property held and owned in common by them, the sum of five hundred and fifteen dollars upon the faith and strength of his said contract; that by reason of the premises the said plaintiff became and is entitled to a specific performance of said contract in the conveyance to him of his said one-third interest in said property; that the respondent Thomas Cruse, although often requested and demanded so to do, has refused, and still continues to refuse, to convey to the appellant the undivided one-third of the said property.”

There are also allegations in the complaint-which is an amended and supplemental one-that long after the said contract was made, and after the plaintiff had entered into the possession of, and while he occupied and possessed his alleged interest in, said property, and during the pendency of this action, the defendants, Thomas I. Cruse, Duffy, and Roberts, with a full knowledge of the rights and equities of the plaintiff, became the purchasers of, and claim an interest in, the said lode claim, of which the plaintiff is entitled to a one-third interest; and that all of said defendants have conspired together to procure a United States patent for said property in their names, so as to defeat any decree rendered in this cause against the said Thomas Cruse. The complaint is silent as to whether or not the alleged contract was verbal or in writing; but where, in such a case, there is no objection made by demurrer upon the ground of ambiguity or uncertainty, the contract will be presumed to be in writing. Sweetland v. Barrett, 4 Mont. 217;S. C. 1 PAC. REP. 745.

It appears by the record that the demurrer was sustained upon the sole ground of the insufficiency of the allegation of consideration, and overruled as to all other matters. The record does not show that the court had obtained jurisdiction over the defendants, Thomas I. Cruse, Duffy, and Roberts; and however the allegations of facts which occurred pendente lite may affect Thomas Cruse, yet it is apparent that the relief predicated upon them is dependent upon the determination of the main question presented in this case, which relates solely to the sufficiency of the consideration alleged, to support a decree for the specific performance of the alleged contract.

It appears from the complaint that at the time of the making of the alleged contract, whereby the appellant agreed to settle the conflicting claim and matter of controversy concerning the property that the respondent Thomas Cruse was the owner of, and as such in the actual occupation and possession thereof, and that he at that time held the legal and equitable title thereto. This language indicates that the respondent Thomas Cruse at that time held the complete title to the property in question. There could, therefore, have been no valid claim or title to this property existing or outstanding in any one else. The character of the claim of Walsh and Trent is in no...