McIntire v. Butterfield Live Stock Co., Ltd.

• Decision Date: 17 November 1927
• Docket Number: 4743
• Citation: 261 P. 237,45 Idaho 206
• Parties: HARVEY J. and ALICE M. MCINTYRE, Respondents, v. BUTTERFIELD LIVESTOCK COMPANY, LIMITED, a Corporation, et al., Appellants
• Court: Idaho Supreme Court

261 P. 237

45 Idaho 206

HARVEY J. and ALICE M. MCINTYRE, Respondents, v. BUTTERFIELD LIVESTOCK COMPANY, LIMITED, a Corporation, et al., Appellants

No. 4743

Supreme Court of Idaho

November 17, 1927

PUBLIC LANDS-CONTRACT TO CONVEY BEFORE TITLE ACQUIRED VOID IN TOTO WHEN NOT SEVERABLE-CANCELATION-ESTOPPEL.

1. Contract under which grantors sold land for which final certificate had issued, and agreed to sell land on which allowance of additional homestead application had been made held within inhibition of Rev. Stats. U.S. , secs. 2290, 2291 (43 U.S. C. A., secs. 162, 164 [U. S. Comp. Stats., secs 4531, 4532]), and void as constituting option to sell land entry of which could be made only for benefit of third person.

2. If contract, selling land on which final certificate was issued, and to convey land on which allowance of additional homestead application had been made, was not severable, and was within inhibition of Rev. Stats., U.S. , secs. 2290, 2291 (43 U.S. C. A., secs. 162, 164 [U. S. Comp. Stats., secs. 4531, 4532]), it was void in toto, and parties could not sue on it, and will be left where they are.

3. Where contract, selling land on which final certificate had been issued for named price, and to convey land on which allowance of additional homestead application had been made, was void within Rev. Stats., U.S. , secs. 2290, 2291 (43 U.S. C. A., secs. 162, 164 [U. S. Comp. Stats., secs. 4531, 4532]), as constituting option, vendors could not contend that purchasers secured deed to land sold in contravention of contract considered as entirety, where, in seeking return of land, they must rely on contract as indivisible.

4. Vendors of land could not ask for cancelation of deed, where they did not offer to return money received as consideration.

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. B. S. Varian, Judge.

Action for return and cancelation of deed. Judgment for respondents. Reversed and remanded, with instructions.

Reversed and remanded, with instructions. Costs awarded to appellants.

Hawley & Hawley, for Appellants.

Contract sued upon is illegal and cannot be enforced. (Rev. Stats., sec. 2290; also pars. 4531, 4532, 4535, U. S. Comp. Stats. 1916, found at vol. 5, pp. 5338, 5343, 5354, 43 U.S.C. A., sec. 162; Harris v. McCrary, 17 Idaho 300, 105 P. 558; McFall v. Arkoosh, 37 Idaho 243, 215 P. 978; Sutphen v. Sutphen, 30 Kan. 510, 2 P. 100; In re Cohn, 171 F. 568; Frink v. Hoke, 35 Ore. 17, 56 P. 1093; Libby v. Pelham, 30 Idaho 614, 166 P. 575; 13 C. J., pp. 411, 492.)

If it be conceded that the contract is not illegal in its entirety, it certainly is illegal in part, and the illegal part must be severed from the legal part. (6 R. C. L. 858; 13 C. J. 563; 4 Page on Contracts, 2d ed., p. 3611, also, pp. 3618, 3619; 2 Elliott on Contracts, pars. 1543-1546, found on pp. 828, 832; Choctaw, O. & G. R. R. Co. v. Bond, 160 F. 403, 87 C. C. A. 355; In re Johnson, 224 F. 180; Central N.Y. T. & T. Co. v. Averill, 199 N.Y. 128, 139 Am. St. 878, 92 N.E. 206, 32 L. R. A., N. S., 494.)

Defendant had only an option on the additional homestead. (Berding v. Northwestern Securities Co., 36 Idaho 384, 211 P. 62.)

Oral testimony cannot be introduced to vary the terms of the written instrument. (Gardiner v. Gardiner, 36 Idaho 664, 214 P. 219; Davis v. Idaho Minerals Co., 40 Idaho 64, 231 P. 712; Milner v. Earl Fruit Co., 40 Idaho 339, 232 P. 581; Craven v. Bos, 38 Idaho 722, 225 P. 136; International etc. Co. v. Beverland, 37 Idaho 782, 219 P. 201.)

The Portland Trust Company was an innocent encumbrancer for value and should have been protected. (Keith v. First Nat. Bank, 36 N.D. 315, 162 N.W. 691, L. R. A. 1917E, 901; 4 Thompson, Real Property, pars. 39-54; Bailey v. Crim, 9 Biss. 95, F. Cas. No. 734; Moore v. Trott, 156 Cal. 353, 134 Am. St. 131, 104 P. 578; Guthrie v. Field, 85 Kan. 58, 116 P. 217, 37 L. R. A., N. S., 326; Simson v. Bank of Commerce, 43 Hun (N. Y.), 156, 6 N.Y.S. 176; Blight v. Schenck, 10 Pa. 285, 51 Am. Dec. 478.)

Ed. R. Coulter for Respondents.

The contract is not a severable contract; contract is not void. (U. S. Rev. Stats., secs. 2290, 2291, pp. 5338, 5343; United States v. George, 228 U.S. 14, 33 S.Ct. 412, 57 L.Ed. 712.)

The delivery of the deed being wrongful and without authority under the contract or otherwise, respondents are entitled to have deed canceled. (Bowers v. Cottrell, 15 Idaho 221, 96 P. 936; 2 Page on Contracts, sec. 1192; King v. Upper, 57 Wash. 130, 106 P. 612, 31 L. R. A., N. S., 606; Ambler v. Jones, 102 Neb. 40, 165 N.W. 886.)

The deed having been wrongfully delivered, appellant Portland Trust Company acquired no lien on said lands under its trust deed. (10 R. C. L. 637; 16 Cyc. 579; 21 C. J. 883; 3 Williston on Contracts, p. 424, sec. 212; Wood v. French, 39 Okla. 685, 136 P. 734; Sharp v. Kilborn, 64 Ore. 371, 130 P. 735.)

GIVENS, J. Budge, Taylor and T. Bailey Lee, JJ., concur.

OPINION

GIVENS, J.

July 25, 1919, respondents and appellants entered into an agreement, the main portion essential to an understanding and determination of the case being as follows:

"That the parties of the first part for and in consideration of the sum of $ 500.00 paid on this date by the party of the second part, receipt whereof is hereby acknowledged, as a part payment of the purchase price of the premises first hereinafter described and in consideration of the premises, do hereby sell to the party of the second part the S 1/2 of Section Nine, Township Twelve, North of Range Seven West of the Boise Meridian, upon which final certificate has been issued for the sum of Twenty-one Hundred ($ 2,100.00) Dollars; and do hereby contract to sell to the party of the second part the NE 1/4 of Section Seventeen and the SE 1/4 of Section Eight, Township Twelve, North, Range Seven West of Boise Meridian, upon which an allowance of additional homestead application has been made for the sum of Two Thousand ($ 2,000.00) Dollars, making a total purchase price of Forty-one Hundred ($ 4,100.00) Dollars.

"It is further understood and agreed:

"That the balance due upon the purchase price of the first of the above-described lands included in the original homestead, that is, the sum of $ 1,600.00 shall be paid on or before the 20th day of June, 1920, with accrued annual interest at 8% from January 1st, 1920.

"That payment of the purchase price for the land included in said additional homestead entry, that is, the sum of $ 2000.00, shall be met on or before the 20th day of June, 1922, with accrued interest to date of payment at the rate of 6% per annum, interest payable annually; provided, however, that in the event the parties of the first part shall not receive patent to said premises on or before said date, then the part of the contract relating to the purchase of these said premises shall be null and void."

Thereafter the appellants entered into the possession of the premises, paid the $ 1,600 balance upon the original homestead, and without the knowledge of respondents caused the First National Bank of Weiser, the escrow-holder, to deliver to it the separate deed therefor and refused to pay anything further. After an unavailing demand for the return of the deed, suit was instituted by respondents to have the deed canceled and their title quieted. Respondents did not offer to return the money paid by appellants.

Appellants contend that the entire contract was void by reason of U.S. Rev. Stats., secs. 2290 and 2291, vol. 5, U.S. Comp. Stats. Ann. (West, 1916), secs. 4531 and 4532, vol. 8, F. Stats. Ann., 2d ed., secs. 2290 and 2291, 43 U.S.C. A., secs. 162, 164. Both parties admit that the contract constituted only an option.

Respondents, in support of the proposition that the contract was not void, cite only United States v. George, 228 U.S. 14, 228 U.S. 14, 33 S.Ct. 412, 57 L.Ed. 712. That case, however, merely held that a department could not make regulations, in effect, contrary to and enlarging the statutory requirements for making proof in connection with the entry and acquisition of public lands, thereby rendering one not complying with such regulations guilty of a crime. The inhibition herein important is contained in the statute itself and therefore the cited case does not support respondent's position.

Appellants contend that the contract is severable...