Richards v. Snyder

• Decision Date: 19 February 1885
• Parties: RICHARDS v. SNYDER and another.
• Court: Oregon Supreme Court

6 P. 186

11 Or. 501

RICHARDS v. SNYDER and another.

Supreme Court of Oregon

February 19, 1885

Appeal from Umatilla county.

Lucian Everts, for appellant.

Turner Bailey & Ballery, for respondents.

THAYER J.

This appeal is from a decree of the circuit court for the county of Umatilla, rendered in a suit brought by the appellant against the respondents, to enforce specific performance of a contract, and to compel the conveyance of a certain tract of land situated in said county of Umatilla, and described as lot 8, section 19, township 4 N., range 35 E. The appellant alleged in his complaint, in substance, that on the twenty-first day of March, 1873, the respondent Snyder, then being owner of the land, agreed in writing to sell the same to appellant for $50, to be paid by the latter to the former as soon as the patent was received from the United States; that appellant thereupon entered upon and took possession of said land, and made valuable improvements thereon; that a patent for the land had been issued on the first day of March, 1877, to Snyder; that in 1882 he deeded it to the respondent Crews, and that Crews prior to the time of the making the deed, had notice of appellant's right to it; that in August, 1882, Crews took forcible possession of the land, and has ever since remained in the possession thereof; that on the fourteenth day of October, 1882, appellant tendered to Snyder $100, and on the twenty-first of that month, same year, tendered a like sum to Crews, and demanded from each of them a conveyance of the land, and that they had each refused to make such conveyance.

The respondents specifically denied all the allegations of the complaint, but did not set forth any affirmative matters of defense. The case was referred to a referee, to take the testimony and report the facts and law thereon. The reference was ordered in June, 1884, and on the thirtieth of that month, same year, the referee, against the protest of the appellant, closed the testimony, and prepared and filed his report therein, whereby he found in favor of the respondents. The appellant's counsel, upon the filing of the report filed a motion, supported by his affidavit, in which, among other things, he stated that he desired and expected to procure some record evidence from Union county, showing the time when the respondent Snyder made his final proof and payment for the land in controversy, and in which motion he prayed the court to set aside the said report for irregularity and misconduct upon the part of the said referee in not allowing him a sufficient time in which to procure the evidence. The respondents opposed the motion, and the court overruled it and confirmed the report of the referee, and gave the decree thereon from which the appeal is taken.

It appears from the evidence taken by the referee that the appellant, in 1866, bought from some occupant the improvements on the land in controversy; that he claimed to hold the possession of it with the remainder of his claim, which appears to have been a kind of squatter's right, until March, 1871, when the respondent Snyder came on, and erected a fence against the will of appellant, dividing the land from the balance of his claim. Subsequently the appellant received notice from the land-office at La Grande, Union county, that the plat had been filed in that office, and soon after he went and filed on the land, but at the same time he was informed by the officers of the land-office that Snyder had filed on it; that afterwards he heard that Snyder had made his final proof on the land, and thereupon he filed affidavits for a rehearing of the case, and forwarded them to the commissioner of the general land-office at Washington; that thereafter he was notified by the land-office at La Grande that the office there had been advised by the commissioner at Washington that a rehearing of the case had been ordered before the La Grande office, and that the latter office had set the time for such rehearing for the twenty-first day of March, 1873. It further appears that on said twenty-first day of March, 1873, the appellant and Snyder were both at the La Grande office, and appellant claims that then and there he and Snyder entered into a written contract, which was made an exhibit in the case, and of which the following is a copy:

"EXHIBIT C, PLAINTIFF'S PROOFS.

"This agreement, made between D.A. Richards and W.A Snyder as a settlement of all matters of differences between them up to this day, witnesseth, that said Richards is to pay to said Snyder the sum of fifty dollars in gold coin, and said Snyder is to execute and deliver to said Richards a good and sufficient deed or conveyance of lot 8, sec. 19-4-35 E., as soon as patent is received from United States, and said sum of $50 to be then due and payable; or if patent is issued therefor to said Richards, he is to deduct from said $50 whatever is paid to the United States for entrance money, and said Richards to be entitled to immediate possession of said lot 8, and both parties to do and perform every act necessary to carry out this agreement, and obtain title from the United States.

"Dated, March 21, 1873.

D.A. RICHARDS.

W.A. SNYDER."

The respondent Snyder, in his testimony, denied that he had ever executed any such contract. He admitted, upon cross-examination, that he was in La Grande on March 21, 1873; stated that he went there to look at some land plats, and attended the rehearing referred to; but the appellant testified positively to its execution by both parties. The following is the testimony given by appellant upon that point, viz.:

"Question 18. Did you attend at La Grande at the time specified in the letter filed in this case, and marked Exhibit A, Plaintiff's Proofs? Answer. Yes, sir. Q. 19. Did you have any conversation with Mr. Snyder at that place and time? and, if so, what was said? A. Yes; I had a conversation with him. We met here for the purpose of settling that contest, and he stated he would not contest for the land any further. After he made that statement I told him that if the patent issued to him, that as he had made his final proof, if he would make me a deed I would pay him the entrance money, or pay him $50 in cash, and he was to give me a good and sufficient deed. Then there was an agreement drawn up to that effect. After the agreement was made and signed I asked him if he thoroughly understood the contents of that agreement, and he said he did. I told him I wanted him--I wanted him to thoroughly understand it, so that there would be no further trouble about it. He said I need not have any fear about it; that he never went back on his word. Q. 20. After you had this conversation, in which Snyder stated that he would not contend for the land, was there a written agreement made and entered into between the parties? and, if so, state what you know about it. A. There was a written agreement entered into, drawn up by Col. Ellsworth, and signed by myself and Snyder. Q. 21. What was done with this agreement after it was entered into? A. It was placed in the hands of the receiver at the land-office at La Grande for safe-keeping, I suppose."

He then identified the agreement, and it was filed and marked as shown by the exhibit. Another witness, A.S. Thompson testified on behalf of the appellant that he was at La Grande on or about the twenty-first day of March, 1873; that he went there as a witness for appellant in the land case; heard appellant and respondent Snyder and Col. Ellsworth talking about the land; that they settled it; that the way it was settled, appellant was to have the land, and said respondent was to have, he thought, $50; that the respondent was to give the appellant a title to it; that there was an agreement drawn up by Col. Ellsworth and read, and both signed it. They said it was such agreement; that witness could not read it; that Col. Ellsworth read it in that way. It appears also that the appellant began to occupy the land soon after, and while there is some question as to the extent and notoriety of his occupancy, yet there is no doubt but that he farmed the land for several years after the agreement is claimed to have been made, and raised several crops on it. It also appeared that the respondent Snyder had a tract of land adjoining the land in question, and that he sold it off and left the county long before the deed to respondent Crews was executed, though he claimed to have left...