Appeal
from District Court, Benson County; Kneeshaw, J.
Action
by W. H. Schuyler against F. E. Wheelon and S.W. Wheelon.
Judgment for defendants, and plaintiff appeals.
Affirmed.
Judgment affirmed. Respondent recovered costs.
R. A
Stuart, McClory & Barnett, and Bangs, Cooley & Hamilton, for
appellant.
An
instrument void on its face may cloud a title, and action may
be sustained to remove it. Revised Codes 1905, section 6626;
Power v. Kitching, 10 N.D. 254, 86 N.W. 737; Stokes
v. Allen, 89 N.W. 1023.
A
contract designed to supersede another, cannot be read to
determine the intention of the parties to the latter.
Overbeck v. Association, 17 Mo.App. 310.
A
contract that fails to show quantity and location of land is
void. Nippolt v. Kammon, 40 N.W. 266; Hamilton
v. Harvey, 13 N.E. 210; Pierson v. Ballard, 20
N.W. 193; Appeal of Holthouse, 12 A. 340; Thompson v
Gordon, 72 Ala. 455; Brockway v. Frost, 41 N.W
411; Hollenbeck v. Prior, 5 Dak. 298, 40 N.W. 347.
A
contract is void under the statute of frauds, that fails to
sufficiently describe the land. Alabama Mineral Land Co.
v. Jackson, 77 Am. St. Rep. 46.
Such a
contract is a nullity. Wardell v. Williams, 4 Am.
St. Rep. 814; Raub v. Smith, 1 Am. St. Rep. 619;
Cheney v. Cook, 7 Wis. 413.
T. F.
McCue, for respondent.
A
contract that provides for sale of land, location to be
determined and mode of ascertainment pointed out, is valid.
Emshwiller v. Tyner, 44 N.E. 811; Carpenter v.
Locker, 1 Ind. 434; Washburn v. Fletcher, 42
Wis. 152; Cheney v. Cooke, 7 Wis. 413; Jemima
Branch, ex parte, 72 N.C. 106; Armijo v. Townsite Co., 5 P.
709.
Statute
of frauds cannot be first urged in Supreme Court. Willard
v. Elevator Co., 10 N.D. 407, 87 N.W. 996; Prior v.
Sanborn County, 80 N.W. 169; Meldrum v. Kenefick, 89
N.W. 863.
OPINION
FISK, J.
This
is an appeal from a judgment in defendants' favor
rendered by the district court of Benson county, and comes
here for trial de novo of the entire case.
Briefly
stated the facts are that appellant, the owner of the S.
WI/4, section 30, township 152, range 68, entered into a
contract with respondent, F. E. Wheelon, on May 6, 1901, as
follows:
"This
agreement made this 6th day of May, 1901, by and between W.
H. Schuyler, party of the first part, and F. E. Wheelon,
party of the second part: That whereas, the Northern Pacific
Railway Co. has located and is about to construct a railroad
over and across the following described land situate in the
county of Benson, state of North Dakota, of which the said
party of the first part is the owner, to-wit: The S.W. I/4 of
Sec. No. 30, Town 152, Range 68. Now, therefore, in
consideration of the payment by said second party of one
dollar in hand, paid to said first party, the receipt whereof
is hereby acknowledged, the party of the first part agrees
that upon the location of townsite upon said land and upon
the further consideration of the said party of the second
part platting or causing to be platted, and advertising,
etc., the above mentioned townsite, that he will convey to
said second party by good, and sufficient warranty deed, the
undivided I/2 of all lots contained in above mentioned plat
at any time said lots may be sold. Said plat to contain
thirty acres of any part of above mentioned I/4 section that
second party may choose and shall be in close proximity to
sidetrack. The party of the first part further agrees that he
will not offer for sale any portion of above I/4 section for
townsite purposes except the above mentioned
lots in above mentioned plat until such time as 75% of said
lots have been sold. The party of the first part reserves the
right to till said lots until such time as they shall be
sold.
"In
witness whereof, both parties have hereunto set their hands
the day and year first above written.
"W.
H. Schuyler.
"F.
E. Wheelon.
"Signed
and delivered in presence of
"T.
H. Deshane.
"Francis
E. Kain."
The
execution of said contract was not acknowledged so as to
entitle it to be recorded. Two days later, at the
solicitation of said respondent and his attorney, another
agreement was entered into between said parties as of the
same date as the prior contract. This latter agreement is as
follows:
"This
agreement made this 6th day of May, 1901, by and between W
H. Schuyler, party of the first part, and F. E. Wheelon,
party of the second part: Witnesseth, that whereas the
Northern Pacific Railway Company has located a railroad over
and across the following described lands, situated in the
county of Benson, state of North Dakota, which land is now
the property of first party and described as follows, to wit:
The southwest quarter of section thirty in township number
one hundred and fifty-two north, of range number sixty-eight
west of the Fifth P. M. That in consideration of the sum of
one dollar in hand paid by the said second party unto the
party of the first part, the receipt whereof is hereby
acknowledged, and services to be performed as hereinafter
described, the said party of the first part hereby agrees to
convey by good and sufficient warranty deed an undivided
one-half interest of such portion of said southwest quarter
of section thirty as second party may deem advisable to lay
out and plat into blocks and town lots, which land shall be
included in the townsite as located by the Northern Pacific
Railway Co., and so much land in addition as second party may
conclude to lay out and plat into blocks and town lots,
however, not to exceed thirty (30) acres. Said conveyance
shall be made by first party as soon as the said land is
properly surveyed and platted. Second party agrees in
consideration of the covenant of this contract, to properly
survey, plat and lay out into blocks and town
lots said land. First party further agrees in consideration
of the covenants of this contract, not to sell or offer for
sale, any portion of said land or the aforesaid southwest
quarter of section thirty,
town and range aforesaid, except as herein provided, until at
least seventy-five per cent of the lots which shall be
platted and is to be platted under the terms of this contract
by said second party, shall have been sold. It is further
agreed by and between the parties hereto, that after said
land is platted they shall be owners of all of such lots as
shall be platted under the terms of this agreement, share and
share alike. First party reserves the right to cultivate all
of said lots.
"In
witness...
