State v. Jones

• Decision Date: 28 October 1893
• Docket Number: 1,389.
• Citation: 34 P. 450,21 Nev. 510
• Parties: STATE ex rel. POWNING v. JONES, State Land Register, et al.
• Court: Nevada Supreme Court

34 P. 450

21 Nev. 510

STATE ex rel. POWNING v. JONES, State Land Register, et al.

No. 1,389.

Supreme Court of Nevada

October 28, 1893

Syllabus by Bigelow, J.

1. Whether a contract is entire, or separable into several independent contracts, depends upon the intention of the parties, to be ascertained from the language employed and the subject-matter of the contract.

2. Contract made by the state for the sale of state lands considered, and held to constitute an entire contract for all the land described therein, and that if the purchaser fails to pay interest upon the balance due upon any part of the land he forfeits it all.

3. The statutes of Nevada permitting such sale reviewed, and held to authorize the kind of contract made in this case, and to show that the legislature intended it to be entire and indivisible.

Original action in the name of the state at the relation of Christopher C. Powning against J. E. Jones, state land register, and J. F. Egan, state treasurer, for writ of mandate. Heard on demurrer to application. Judgment for respondents.

The other facts fully appear in the following statement by BIGELOW, J.:

Original application to compel the respondents, as, respectively, land register and treasurer of the state of Nevada, to receive from the relator the interest due upon a certain 40 acres of land which the state had, along with other lands, contracted to sell to him. The respondents refused to receive the money upon the ground that the contract was entire, and that the relator must pay interest upon all the land included therein or forfeit all of it. The contract was as follows: "This article of agreement made and entered into this 20th day of July, 1891, by and between the state of Nevada, acting through J. E. Jones, surveyor general and ex officio register of the state land office of said state, party of the first part, and Christopher C. Powning, of the county of Washoe in the state of Nevada, party of the second part, witnesseth That the party of the first part, for and in consideration of one dollar and twenty-five cents per acre, good and lawful money of the United States, payable as hereinafter expressed by the party of the second part, doth agree to convey to the party of the second part, by good and sufficient patent, the following described lands, to wit: S.W. 1/4 of S.E. 1/4, and E. 1/2 of S.W. 1/4, of sec. 28, and N.E. 1/4 of N.W. 1/4 of sec. 33, of township 40 N., R. 45 East, Mt. Diablo base and meridian, containing one hundred and sixty acres, *** in consideration of which the party of the second part, for himself, his heirs, administrators, executors, or assigns doth agree to pay the state of Nevada at the rate of one dollar and twenty-five cents per acre, as above stated, of which sum the party of the first part has heretofore paid the sum of twenty-five cents per acre; and it is hereby further agreed that the party of the second part shall within twenty-five years from the date of this article of agreement pay the balance of said one dollar and twenty-five cents per acre, viz. one dollar per acre, i. e. the sum of one hundred and sixty dollars, with interest thereon at the rate of six per cent. per annum, interest payable annually, as provided in section 8 of an act entitled 'An act to provide for the selection and sale of lands that have been or may hereafter be granted by the United States to the state of Nevada,' approved March 12, 1885, as amended March 11 1889; and it is hereby further provided and agreed that the party of the second part, his heirs, executors administrators, or assigns, may at any time prior to the maturity of this contract make full payment for the lands described in this article, and receive from the state of Nevada a patent for the same, issued in the name of the applicant. This contract is made upon the express condition, viz.: That if the said Christopher C. Powning, party of the second part, shall fail to pay the principal sum herein specified, or the interest thereon, according to the terms of this agreement, as herein stipulated, the lands herein described, and the money paid thereon, shall immediately and unconditionally revert to the state of Nevada, and the lands be thereafter subject to sale in the same manner and under the same conditions as though this contract of sale had not been made." The facts are agreed upon, but the defendants demur to their legal sufficiency.and refuse to pay on and forfeit the others; the contract being entire.

Baker, Wines & Dorsey, for relator.

J. D. Torreyson, Atty. Gen., for respondents.

BIGELOW, J., (after stating the facts.)

This case has been argued and submitted to us upon the assumption that the relator had the right, whenever he saw fit, to refuse to pay the interest due upon the contract involved in this action, and thereby to throw up or surrender the entire contract; and, further, that he would also have that right as to a part of the land included therein, provided the contract is a separate or divisible one. As the latter point seems sufficient for the determination of the action, we shall make the same assumptions, and consider only that proposition.

The relator claims that the contract was a separable and divisible agreement for the sale to him of four different subdivisions of land at so much per acre; that in the first place the state would have sold to him any of the tracts without the others; that it is a matter of indifference to the state whether the relator takes the whole of the land included in the contract or only a part of it; and that consequently, under the contract and the statute authorizing it, he had the option of paying upon one or more of the 40-acre tracts, and of forfeiting the others. The rule for determining when a contract is separable or entire is stated in 2 Pars. Cont. 517. as follows: "The question of whether a contract is entire or separable is often of great importance. Any contract may consist of many parts, and these may be considered as parts of one whole, or as so many distinct contracts, entered into at one time and expressed in the same instrument, but not thereby made one contract. No precise rule can be given by which this question in a given case may be settled. Like most other questions of construction, it depends upon the intention of the parties and this must be discovered in each case by considering the language employed and the subject matter of the contract. If the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed or is left to be implied by law, such contract will generally be held to be...