Webster-Soule Farm v. Woodmansee

• Decision Date: 30 December 1922
• Citation: 36 Idaho 520,211 P. 1090
• Parties: THE WEBSTER-SOULE FARM, a Corporation, Respondent, v. VILATE WOODMANSEE, Appellant
• Court: Idaho Supreme Court

211 P. 1090

36 Idaho 520

THE WEBSTER-SOULE FARM, a Corporation, Respondent, v. VILATE WOODMANSEE, Appellant

Supreme Court of Idaho

December 30, 1922

SCHOOL LANDS-SALE-CONSTITUTIONAL LIMITATION-SALE OF PURCHASER'S INTEREST-WITNESS-DISQUALIFICATION-CLAIM AGAINST ESTATE - PARTY - PERSON IN WHOSE BEHALF ACTION BROUGHT - AMENDMENT OF PLEADING - DISCRETION - ORDER TAXING COSTS - APPEAL FROM.

1. The sale of school lands, contemplated by Const., art. 9, sec. 8 takes place when the original purchaser enters into a contract of purchase with the state, and cannot call for more than the acreage limited by the constitution.

2. The constitutional provision does not prohibit the original purchaser from later selling his interest to one who has already purchased the acreage limited by the constitution.

3. If the original purchase is made by the nominal purchaser, not on his own behalf, but in the interest of another, there being an agreement between them to evade the constitutional limitation, the transaction is invalid.

4. An officer or stockholder of a corporation is not a party within the meaning of C. S., sec. 7936, subd. 3.

5. A stockholder of a corporation is not a person in whose behalf an action, brought by the corporation, is prosecuted, within the meaning of C. S., sec. 7936, subd. 3.

6. It is not an abuse of discretion to refuse to allow a party to amend a pleading so as to directly contradict an allegation of fact as to which said party must have had knowledge when he verified the original pleading.

7. An order taxing costs is a special order made after final judgment, is appealable, and not reviewable on appeal from the judgment.

APPEAL from the District Court of the Ninth Judicial District, for Madison County. Hon. James G. Gwinn, Judge.

Action to impress trust on land. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent.

Miller & Ricks and McDougall & Jones, for Appellant.

A party to a trust agreement with a person since deceased cannot testify to the terms of such agreement involving title to the property covered thereby. (Coats v. Harris, 9 Idaho 458, 75 P. 243.)

Under subd. 3, C. S., sec. 7936, J. W. Webster was not competent to testify to any matter of fact occurring before the death of C. H. Woodmansee. (Rice v. Rigley, 7 Idaho 115, 61 P. 290; Whitney v. Fox, 166 U.S. 137, 17 S.Ct. 713, 41 L.Ed 1145.)

F. L Soule and N.D. Jackson, for Respondent.

The statute does not exclude the testimony of an officer of a corporation which is a party. (Merriman v. Wickersham, 141 Cal. 567, 75 P. 180; City Sav. Bank v. Enos, 135 Cal. 167, 67 P. 52; 40 Cyc. 2290, and cases cited.)

MCCARTHY, J. Budge, Dunn and Lee, JJ., concur.

OPINION

MCCARTHY, J.

This is an action to impress a trust on certain land. It is the contention of respondent that appellant and her deceased husband, C. H. Woodmansee, purchased certain state school land, four certificates being issued in his name and four in hers, the same being community property; that C. H. Woodmansee, deceased, agreed with one Webster and others that land belonging to them should be conveyed to a corporation which they had formed known as Webster-Woodmansee Co., the predecessor in interest of respondent; that the certificates were accordingly assigned to said corporation by said C. H. Woodmansee but that the assignments were not recorded with the state land board; that the corporation went into possession of and farmed the land, paying all installments of the purchase price owing to the state except the last; that, after the death of C. H. Woodmansee, appellant assigned the certificates which stood in her name to said corporation but the certificates were not recorded in the office of the state land board; that, at the time the last payment to the state fell due, appellant filed with the state land board a false affidavit stating that she was the owner of the certificates, tendered the final payment and received from the state a patent in her name. Respondent tendered the amount of the final payment to appellant and prayed for a decree to the effect that appellant holds title to said land in trust for respondent, that she be required to convey it to respondent, and that, in the event of her failure to do so, the clerk of the court execute and deliver a deed to respondent. Appellant denied that C. H. Woodmansee agreed to convey the land in question to respondent or assigned the certificates, claiming that certain assignments, referred to in the complaint, and introduced in evidence, were forgeries. Appellant admitted that she assigned the certificates which stood in her name to respondent, but claimed that her signature was obtained by the false representation that the instrument which she signed was a conveyance of other lands. The court called a jury to render an advisory verdict, accepted the findings of the jury, supplemented these findings by findings of its own, and entered judgment, quieting title to the lands in question in respondent, ordering appellant to execute and deliver to respondent a good and sufficient deed conveying the legal title to the same, and further providing that, upon her failure to execute and deliver such deed, the decree should operate as a conveyance to respondent. From this judgment the appeal is taken.

The assignments of error are that the court erred: (1) in sustaining respondent's motion to strike certain paragraphs from appellant's answer to the cross-complaint, (2) in permitting the witness J. W. Webster to testify to transactions with the deceased C. H. Woodmansee, (3) in refusing to permit appellant to amend her pleading so as to state that the 160 acres covered by the certificates issued to her was her separate property, (4) in allowing respondent's cost bill, (5) in that the evidence is insufficient to support the decree. We will consider the assignments in the above order.

The land in question is state school land. In her answer and cross-complaint appellant alleged that, at the time she and her deceased husband purchased it, certain other parties named Wright and Winter purchased certain other school lands, and that, when these purchases were made, respondent formed the intent and plan to pay to the said parties the sums of money paid by them, secure assignments of their certificates, pay the state the subsequent installments, and obtain patent to the lands. Appellant further alleged that, as a part of respondent's said purpose and plan, one J. W. Webster, and Mary Webster his wife, purchased certain school lands, and thereafter assigned the certificates to respondent upon being paid all the sums of money paid by them. Appellant further alleged that, in furtherance of its said plan and purpose, respondent acquired and holds title to the school lands originally purchased by the Wrights, the Winters and the Websters in violation of Const., art. 9, but that appellant and her deceased husband refuse to convey the land entered by them. The portions of the answer and cross-complaint setting out in substance the matter above outlined were stricken by the court on respondent's motion. At the time of the transactions in question Const., art. 9, sec. 8, provided: "Not to exceed twenty-five sections of school lands shall be sold in any one year and to be sold in subdivisions of not to exceed one hundred and sixty acres to any one individual, company or corporation."

Appellant contends that the matter so stricken from the complaint constituted a defense and cause of action, inasmuch as it showed an intent on respondent's part to violate that constitutional provision, by acquiring title to more than 160 acres of school land. The sale contemplated by Const., art 9, sec. 8, takes place when the original purchaser enters into a contract of purchase with the state, and that original sale cannot call for more than the acreage limited by the constitution. The constitutional provision does not prohibit the original purchaser from selling and assigning his interest, even though it be to one who has already purchased other school lands equaling or exceeding that acreage. ( Gliem v. Board of...