Smith v. Jones

• Decision Date: 31 March 1900
• Citation: 60 P. 1104,21 Utah 270
• Court: Utah Supreme Court
• Parties: ROBERT K. SMITH, RESPONDENT, v. R. T. JONES, ET AL., APPELLANTS, AND ROBERT K. SMITH, RESPONDENT, v. J. L. FORBES, ET AL., APPELLANTS

60 P. 1104

21 Utah 270

ROBERT K. SMITH, RESPONDENT, v. R. T. JONES, ET AL., APPELLANTS, AND ROBERT K. SMITH, RESPONDENT, v. J. L. FORBES, ET AL., APPELLANTS

Supreme Court of Utah

March 31, 1900

Appeal from the Third District Court, Salt Lake County, Hon. Ogden Hiles, Judge.

There were two cases, the issues of which were identical, and both tried together; in each of these cases the action was brought to quiet title. From a judgment for plaintiff, defendants appealed.

Affirmed.

Messrs Powers, Straup & Lippman, and W. C. Hall, Esq., for appellants.

Where a contract to sell and convey land is made, a large part of the purchase price paid in cash and promissory notes executed for the remainder, but the non-payment of such notes, at maturity or otherwise, is not made a ground of forfeiture or rescission of the contract, and the purchaser takes possession of the land, and makes substantial improvements thereon, and meanwhile it increases in value, and such possession is retained for nearly twenty years, and never agreed to be surrendered, but the purchase money notes were never paid, and their collection is now barred by the statute of limitations, Held, that the vendor can not, during non-occupancy of such land by the vendee, lawfully re-enter possession, and hold it, merely because of the non-payment of the notes; and, further, Held, that, in the event he does so re-enter, ejectment by the vendee will lie to recover possession. Usher v. Hollister, 49 Pa. 525; Whittier, et al., v. Stege, 61 Cal. 238.

Equity will not decree a forfeiture of a vendee's rights under a contract for the sale of a mining claim, and thereby deprive him of the possession of the mine and the amount paid toward the purchase price, although he may have failed to work the mine as required by the contract, and to pay the balance of the purchase price when due. McCormick v. Rossi, 15 P. 35; Farley v. Vaughn, 11 Cal. 227; Hulshizer v. Lamoreux, 58 Ill. 72; Hill v. Grigsby, 35 Cal. 656.

Where a contract is made for the sale of land, equity considers the vendee as the owner of the real estate sold, and the purchaser as a trustee for the vendor for the purchase money. Richter v. Selin, 8 S. and R., 439; Smith v. Phoenix Ins. Co., 91 Cal. 330.

J. R Bowdle, Esq., and Messrs. Morse & Whittemore, for respondent.

For a covenant or contract to run with the land, an estate must be conveyed to which the covenant or contract can attach. 2 Washburn on Real Property (3d ed.), 262, foot pages 13-16; Spence's Case, 1 Smith Lead. Cases, 174.

"Where one who makes a contract with another in respect to land neither parts with, nor receives any title or interest in the land at the same time with, and as a part of the making of the covenant, it is at best a mere personal one, which neither binds the assignee nor inures to the benefit of the assignee or the covenantee so as to enable the latter to maintain an action in his own name for a breach thereof." 2 Washburn on Real Property (3d ed.), 262, foot page 13.

"There was no grant of any interest in the real estate of either party to which the covenant could he annexed." Hurd v. Curtis, 19 Pick., 459; Van Rensselaer v. Bonesteel, 24 Barb., 365.

"The right of action passes from the original covenantee only by the conveyance of some estate to which the covenant is incident." 19 Am. and Eng. Ency. of Law, 988, and cases cited.

This contract was an option to purchase with a license to extract mineral from the land, and could not be enforced against Mc Guire and associates; no estate or interest in the land did or could pass by this contract. 1 Warville on Vendors, Sec. 2, p. 187, and Sec. 24, pp. 142, 143.

"A mere contract or obligation to convey land at a future time, on the purchaser performing certain acts, does not create an equitable title in such purchaser; it is only when he performs all acts necessary to entitle him to a deed that he has an equitable title which a court of equity will enforce." Chappell v. Knight, 108 Ill. 570; Sutherland v. Perkins, 75 Ill. 339.

For a covenant to run with the land, its performance or non-performance must affect the nature, quality, or value of the property demised independent of the collateral circumstances, or it must affect the mode of enjoyment, and there must be a privity between the contracting parties. Wiggins F. Co. v. O. & M. R. Co., 94 Ill. 83; Lawson's Rights and Remedies, Sec. 2303; 1 Washburn on Real Property, 327.

If there was a possibility of this being a contract running with the land, by the agreement of the parties, they could provide it should not, and such agreement would be binding. Masury v. Southworth, et al., 9 Ohio St., 348.

The appellant contends that plaintiff can not maintain a suit for partition only of surface ground. In answer to this proposition, we beg leave to submit the following authorities: 1 Washburn on Real Property, 17; 1 Lindley on Mines, Sec. 9; 31 Pa. 475; 109 Pa. 583; 2 Lindley on Mines, Sec. 212; 16 How. Prac., 473; 13 Morrison Mining Reporter, 40; 28 Barb., 336; 14 Morrison Mining Reporter, 243; 55 N.Y. Court of App. 538.

BARTCH, C. J., delivered the opinion of the court. MINER, J., and BASKIN, J., concur.

OPINION

BARTCH, C. J.

STATEMENT OF FACTS.

In each of these cases the action was brought by the plaintiff to quiet title in him to an undivided one-fifth interest in the surface of a certain parcel of land situated in Bingham Canyon, Utah and for partition thereof. By agreement the two causes were consolidated, their issues being identical, and the same decree was entered in each.

The plaintiff introduced in evidence a patent from the United States, dated July 30, 1881, and issued to the plaintiff, Thomas Gibbons, John Mc Guire, and the heirs of William Gibbons, for the Mc Guire and Company's placer mining claim. The premises described in the complaint were included in the patent, and the patent conveyed to the plaintiff an undivided one-fifth thereof.

The defendants introduced in evidence an agreement dated October 17, 1877, in which the plaintiff agreed to convey, by quitclaim deed, to John Mc Guire, Alexander Maberry, Frank Webb, Thomas Gibbons, and William Gibbons, his one-fifth interest in a certain drain ditch, for $ 200 cash in hand paid, and for the further sum of $ 5,000 to be paid to him, as will appear from an extract of the agreement which reads as follows: "And the said parties of the second part in consideration of the above described placer mining property and drain are to take, have, and receive into their possession, in the date of this lien first above written, quiet and peaceable possession of said interest, and further agree to pay to said party of the first part the sum of five thousand dollars ($ 5,000) to be paid only from the proceeds of ore, gold dust, or minerals taken therefrom, upon the following conditions, to wit:

The first payments to be made from said source is the payments of all labor therein performed at the rate of four dollars to the man for each day's labor thus performed.

Second, to pay all the just debts now owing by said company to different parties.

Third and last, to pay said sum of five thousand dollars from the proceeds of said mine after making the above payments as mentioned.

And it is further understood that the said party of the first part shall have the right at all times, himself or his legal representatives, to visit and inspect the said mine and be present and examine at any or all washings or cleaning up of the gold dust, it being further understood that the gold dust thus taken out for said payments is from the entire mine; it being also understood that said parties of the second part can not sell or quit this interest until this agreement is fully satisfied, or by consent of said party or his legal representative."

The evidence shows that John Mc Guire, Frank Webb, Thomas and William Gibbons were dead before this suit was brought; that A. Maberry had conveyed his interest in the property; that none of the parties to the contract, except the plaintiff have now any interest in the land, and there is nothing to show that any...