Ray v. Divers
| Decision Date | 24 February 1928 |
| Docket Number | 6259. |
| Citation | 264 P. 673,81 Mont. 552 |
| Parties | RAY et ux. v. DIVERS et ux. |
| Court | Montana Supreme Court |
Appeal from District Court, Judith Basin County; Edgar J. Baker Judge.
Action by Charles O. Ray and wife against Leonard B. Divers and wife. Judgment for defendants, and plaintiffs appeal. Affirmed.
Cheadle & Cheadle, of Lewistown, for appellants.
Ralph J. Anderson and Wm. M. Blackford, both of Lewistown, for respondents.
On August 23, 1923, this action was instituted by the plaintiffs to recover the sum of $12,500 damages because of alleged fraudulent misrepresentations made by the defendants, relied upon by the plaintiffs in the purchase of certain agricultural lands in Judith Basin county. On a former appeal the sufficiency of the complaint was sustained. Ray v Divers, 72 Mont. 513, 234 P. 246. Subsequently, upon issue joined by answer and reply, the cause was tried to the court sitting with a jury. At the conclusion of all of the evidence offered by the plaintiffs in support of their complaint a motion for nonsuit was made by the defendants and by the court sustained. Judgment was entered accordingly, and this appeal is from the judgment.
The plaintiffs' assignments of error relate to the sufficiency of the evidence to make out a prima facie case and alleged errors committed by the trial court in the permitting of evidence to be introduced. As, in our opinion the court committed no error in the exclusion of evidence, of which the plaintiffs make complaint, we will confine our discussion, in determination of this appeal, to the testimony before the court.
Among other defenses, the defendants in their answer plead the statute of limitations. It appears that the plaintiff Charles O. Ray was acquainted with lands lying along the Judith river, and crops produced thereon since the year 1906. He had had many years' experience with lands and land values in the community, both irrigated and nonirrigated, and in July, 1918, was engaged in the real estate brokerage business at the town of Hobson and had been there engaged in such business for about 2 1/2 years. The defendant Leonard B. Divers, who then resided at Kalispell in Flathead county, and who owned the lands in controversy, comprising 440 acres located about 10 1/2 or 11 miles from Hobson in Judith Basin county, listed them for sale with the plaintiff Charles O. Ray in the early spring of 1918. Thereafter Mr. Ray "showed the lands to prospective purchasers several times," and "on three occasions" he exhibited the land to a man whom he "figured taking into partnership in the purchase" thereof. They walked over about half of the land, "over half of the forties" and examined all of the ditches, and later on he again visited the premises alone. Subsequently, about the 1st of July, 1918, the plaintiff Charles O. Ray, accompanied by the defendant Leonard B. Divers, went upon the land, as the former then contemplated purchasing it. A tenant was in possession of the land at that time and had it under cultivation. They went over the land and made examination of the water ditches thereon, and Mr. Divers represented to Mr. Ray that he had a decreed water right for 140 inches of water from the Judith river as of appropriation date 1883, and an earlier right also adjudicated from the same stream of 125 inches, and that there was sufficient water from the first right mentioned by use of the ditch diverting the same to irrigate "about 200 acres of land lying under the ditch;" and that the ditch conveying the earlier right had not been used for years but could easily be put in repair. There is no evidence in the record proving or tending to prove that such representations as to water rights were false, and the reply admits that prior to the execution of the contract, water rights had been decreed to Divers from the Judith river appurtenant to the land, 125 inches as of date May 10, 1881, and 140 inches as of date April 30, 1883.
On July 18, 1918, the plaintiffs entered into a written contract with the defendants for the purchase of the land for the sum of $28,400, payable in annual installments, together with interest at 6 per cent., the last payment to be made on or before December 31, 1928. Among other things the defendants agreed "to provide an abstract of title of the water rights enjoyed in connection with the said lands," and the lease of the lands to the tenant in possession was to be assigned to plaintiffs. From the date of the execution of the contract the plaintiffs were entitled to the possession of the land, and were in fact in possession through the occupancy of the tenant and entitled to the rents and profits for the year 1918, and they were advised by the tenant that there was not a sufficient supply of water to irrigate the land. They actually moved upon the lands in the fall of 1918 and personally began farming operations on the land in the spring of 1919. They lived upon the land and cultivated it during the years 1919, 1920, and 1921, during which years they made payments under the contract, the last of which payments was made on September 24, 1921, at which time the aggregate amount paid in installments was the sum of $11,935, about $10,000 of which was on principal and the balance representing interest. Such cultivation of the land continued, and payments were made on the contract by the plaintiffs, although Mr. Ray stated that when he personally irrigated the land in 1919, he discovered for himself there was a shortage of water. The plaintiffs having failed and neglected to make any further payments or to pay the taxes due upon the land for the year 1921 as agreed, the defendants, pursuant to the terms of the contract, on or about January 15, 1922, served the plaintiffs with a written notice of forfeiture of the contract, and on March 16, 1922, filed for record and recorded a notice of forfeiture of the contract. ...
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