WILLIAM STONECIFER, Respondent, v. THE YELLOW JACKET SILVER MINING CO., Appellant
Stonecifer v. Yellow Jacket Silver Mining Co.
WILLIAM STONECIFER, Respondent, v. THE YELLOW JACKET SILVER MINING CO., Appellant.
WILLIAM STONECIFER, Respondent, v. THE YELLOW JACKET SILVER MINING CO., Appellant.
The doctrine that he who buys land with a full knowledge that there is a preexisting contract in regard to the sale of the same, will be held in equity to carry out that contract, has no application to a case where the party seeking the equitable relief never was entitled to a conveyance from the party with whom he contracted, and when that party never in fact had any title to convey.
Where A claims an interest in a piece of real estate, and being out of possession conveys his alleged interest to B, for the purpose of enabling him to prosecute a suit for the same, with an agreement on the part of B to reconvey a portion of the property, if recovered, B has full power to compromise the suit, even without the consent of A, and the title would be established by a judgment and deed, in pursuance of such compromise. A might be entitled to an action against B for damages, but would have no claim on the land. If A consented to the compromise made by B, certainly a third party having a contract with A for the conveyance of a portion of his contingent interest, would not be allowed to question the title of the parties in possession who compromised with A and B, and obtained a deed for whatever title B had.
On Rehearing. — When A takes a conveyance for land in the adverse possession of another, with an agreement, in case of recovery, to convey part of the land recovered to B, can ho be considered a trustee for B until the recovery is had?
Where a party who is prosecuting a suit for the recovery of land covenants, in case of recovery to convey a part of the land recovered to another, and after-wards compromises the suit so as to prevent the possibility of recovery, he may be liable to his covenantee in damages, but the party in possession, who compromises the suit, is not affected by the previous existence of this covenant.
If the compromise had been fraudulently entered into by both parties, with a view of cheating the covenantee, then a Court of Equity might have given relief.
A party in possession always has a right to buy his peace from one assorting an adverse claim, and such compromises will always be upheld where there is no fraud committed.
A party who has covenanted to convey, in the event of recovery, may be under obligation not to compromise the case so as to prevent the possibility of recovery. But no such obligation rests on defendant: he has a perfect right to buy Ms peace, regardless of all contracts between his opponent and others.
The Court cannot, in an equitable proceeding, try the title to land, nor determine in such a case what should have been the judgment in an action of ejectment formerly pending in regard to the same.
A party being in possession, claiming title, cannot be divested of that possession without a trial at law before a common law Court and a jury.
Appeal from the District Court of the First Judicial District, the Hon. Richard S. Mesick, presiding.
The facts of the case are fully stated in the opinion.
Hillyer Whitman made the following points for the Appellant :
The Court below should have sustained the demurrer to the complaint, for it shows no cause of action.
A specific performance of a contract can only be decreed where such contract is binding at law. (Adams’ Equity, p. 77.)
In this case the agreement of Jones, set forth in the complaint, was void for want of consideration. It depended on contingencies which never happened. There was no mutuality of contract between Jones and Stonecifer — contract must be mutual to have specific performance. (.Benedict v. Lynch, 1 John. Ch. 370; German v. Machin, 6 Paige, 288; Woodioard v. Harris et al., 2 Barb. 439; Rogers v. Saunders, 4 Maine, 92; Boucher v. Van BusJcirk, 2 A. K. Marshall, 346; Adams’ Equity, 3d Ed., p. 252, foot-note and cases there cited; Cooper v. Rena, 21 Cal. 404.)
The agreement of Osborne, as- set forth in the complaint, was void, not being in writing.
The complaint shows that defendant is a corporation. It is not within the scope of the powers of a corporation, formed under the Statutes of Nevada, to perform the act demanded by plaintiff. The complaint shows no special case of hardship, nor any reason why plaintiff could not be compensated in damages.
It shows no cause of action against defendant.
Por the same reasons, the judgment of the Court was against law.
It was contrary to the evidence. Jones’ evidence shows that he never made any claim to a quartz lead.
The record of the agreement set forth in the complaint was no notice to defendant.
No actual notice was proven. If defendant would have been liable in case of notice, without such notice there was no liability.
The Court erred in the judgment. If defendant was liable, it was only liable to perform the contract of Jones. The Court has decreed none.
Hundley $ Mitchell, for Respondent, made the following points :
1. Defendant being a purchaser with notice of plaintiff’s contract, will be decreed to convey. (1 Story Eq. Jurisprudence, 754, Sec. 784 ; also, Sec. 395 ; Champion v. Brown, 6 John. Ch. Rep. 402; Potter v. Sanders, 6 Hare Rep. 1; 31 Maine Rep. 89; 3 Leading Cases in Equity, 91; McMorris v. Crawford, 15 Ala. Rep. 271; Dickinson v. Aug, 25 Ala. Rep. 424; Wiswall v. McGowan, 1 Hoffman, 125.)
2. A purchaser of real estate is liable to all equities of which he has actual or constructive notice. (2 Leading Cases in Equity, 182; 8 Wheaton, 421; 9 Peters, 86; 2 B. Monroe, 105; 4 Blackford, 583; 1 Johnson Ch. Rep. 566; 2 Id. 300 ; 2 McCord, 149; 5 Barbour S. O. 534; 1 Yerger, 29 ; 1 J. J. Marshall, 403.)
3. The defendant had knowledge of the Jones and Stonecifer contract; it was recorded. (Laws of 1861, pp. 14 and 15, Secs. 24-25.)
4. Plaintiff and defendant claim from a common source; it is estopped from disputing such source of title or its validity.
5. If defendant claimed under a superior title to the common source, he must plead such title, and if not pleaded he.is estopped from denying the validity of the common title. (13 Smede & Marshall’s Rep. 103-109; 11 Smede & Marshall, 327; 3 Smede & Marshall, 114.)
6. Plaintiff shows that the nonperformance of covenants was excused. That defendant prevented the performance or rendered it unnecessary. (1 Chitty Pr. and PI. 325, also 320; 2 Smith’s Leading Cases, 44, and authorities cited; Newcomb v. Bracket, 16 Mass. Rep. 161; Webster v. Coffin, 14 Mass. Rep. 196 ; Clark v. Moody, 17 Mass. Rep. 149.)
A failure or want of consideration cannot .be given in evidence, or be pleaded as against a specialty. (2 Johnson Rep. 177 ; 13 Id. 430 ; 5 Cowen Rep. 506 ;• 8 Id. 290 ; 21 Wendell Rep. 626; 21 Cal. Rep. 47.)
A complaint on a sealed instrument need not aver a consideration, because a consideration need not, in the first instance, be proved. (1 Van Sandfordt Pr. and PI. 221; Livingston v. Tremper, 4 Johnson Rep. 416.)
The complaint avers consideration, which is not denied by defendant.
The Court will only consider in this case the judgment roll. There are no findings of the Court below, and defendant has not taken the exceptions required by statute. (Laws of 1865, p. 394.)
Haydon Benson, for Respondent,
also filed a brief in support of the foregoing points.
Mitchell Hundley, in their petition for rehearing, sum up the points on which they rely, as follows:
“ First. — As the case was decided upon demurrer, all the facts stated in the complaint were admitted to be trué.
Second. — The facts as shown by the complaint.
Third. — That the facts as disclosed made J. A. Osborne, as to the seventy feet, a trustee for J ones, and that their relation as to that interest was that of a trustee and cestui que trust. >
Fourth. — That as to this seventy feet, the relation the parties bore to it was that Osborne was legal owner, and Jones an equitable owner.
Fifth. — That the interest which Jones held in this seventy feet was the subject of sale by him, or liable to be disposed of by operation of law in invitum.
Sixth. — That respondent took the same interest that Jones had prior to the assignment of the ten feet.
Seventh. — That the effect of the contract between Jones and respondent, in equity, was an assignment of his interest in the ten feet.
Eighth. — That Osborne, after the assignment from Jones to respondent, occupied to respondent the same position he did to Jones prior to that time.
Ninth. — That no acts of a trustee can prejudice the rights of a cestui que trust, with knowledge upon the part of the person dealing with him that he is a trustee.
Tenth. — That Osborne, or his administrator, could not sell or compromise any greater interest than he had: as he held the estate in trust, he sold and conveyed to defendant (it being affected with notice) the trust estate subject to the trust in its hands, the same as it Avas in Osborne’s.
Eleventh. — That the defendant purchased the whole property with notice of this trust, and they must now execute it.
Twelfth. — That the deed from Jones to defendant did convey his equity in seventy feet to the defendant.
Thirteenth. — That plaintiff did have two remedies — one against Jones for damages, and the defendant for a specific performance— it having purchased with notice.”
Opinion by
Beatty, C. J., Brosnan, J.,
concurring.
The appellant, in the month of March, 1865, filed his Complaint, alleging substantially the following facts:
That one Lyman Jones, on the first of May, 1859, located a certain mining claim two hundred feet square, which covers a part of the claim noAV occupied and Avorked by the defendant. That on the thirtieth of September, 1861, Jones deeded this claim to one Osborne by deed absolute on its face, but with an understanding or agreement that Osborne was to prosecute an action at laAV, at his own expense, for the recovery of the ground from which Jones had been ousted, and upon recovery he Avas to reconvey seventy feet to Jones. That on the same day, Osborne conveyed to his counsel — Smith, Clayton & Lindsey — fifty feet of the claim as a counsel fee for prose cuting the suit. That in March following (1862) suit was commenced against the Yellow Jacket Company (not then incorporated) for the mining claim located by Jones. In the spring of 1863, whilst this suit was still pending, Jones made a contract with the plaintiff whereby he bound himself to deed ten feet of this claim to plaintiff in the event Osborne or Osborne's administrator (for Osborne himself was dead) recovered from the Yellow Jacket Company, and conveyed to him, Jones, the seventy feet about which there was an agreement between Jones and Osborne, when the deed was made to Osborne. Shortly after this agreement was made, the suit of Osborne (or his administrator) against the Yellow Jacket Company came on for trial, and the plaintiff took a voluntary non-suit.
In the course of that year two new suits were brought against the Yellow Jacket Company: one by Smith, Clayton & Lindsey for their fifty feet, the other by Osborne's administrator for the remaining one hundred and fifty feet. In March, 1864, both these suits were disposed of in the following manner:
On the seventh day of March, Smith, Clayton & Lindsey filed a written consent that judgment for costs might go against them.
• They subsequently conveyed their interest in the mining claim to the Yellow Jacket Company. The administrator of Osborne on the ninth of March filed a like written consent that judgment might go against him for costs. He had however, previous to that day, conveyed all his interest in the mining claim to the Yellow Jacket Company.
The complaint, in speaking of this written consent on the part of Osborne's administrator that the judgment should be entered against him for costs, says: " That the consideration moving plaintiff in said cause for the filing of such written consent as aforesaid, and the entry of such judgment, was the-purchase by defendant of the said Lyman Jones of his right, title and interest to said mining claim, and the purchase by said defendant from the said W. R. Hickock, administrator of the estate of J. A. Osborne, deceased, as aforesaid, of his right, title and interest in and to said claim."
Subsequent to the dismissal of the suit, Jones conveyed all right, title and interest in the claim to the Yellow Jacket Company. The bill further charges, that when the Yellow Jacket Company took their conveyance from Osborne's administrator and from Jones, it had notice of the agreement about the ten feet between this plaintiff and Jones, and also of the Jones and Osborne agreement as to the seventy feet.
The bill concludes with a prayer that the defendant be compelled to convey ten feet undivided interest in the mining ground described ; for costs, etc. The defendant first demurred, and on the demurrer being overruled, then answered. The case went to trial, and a decree was rendered in accordance with the prayer of the complaint.
The case should have been disposed of on demurrer, and it is therefore unnecessary to notice the answer or proof in the case. Respondents claim that they were entitled to a decree against the appellants because they took a conveyance from Jones whilst there was an existing contract, of which respondents had notice, between Jones and respondents for the conveyance of this ten feet of ground. No principle is better settled than that if A contract to sell land to B, but before consummating the sale conveys the same land to C, who has a knowledge of the preexisting contract, C is in equity bound to fulfill that contract.
But that principle is wholly inapplicable to this case, for at least two good reasons : First, Jones never was bound to convey anything to plaintiff; and second, he never sold or conveyed anything to defendant.
Jones' contract to convey to plaintiff depended on two conditions : First, that Osborne should recover from the Yellow Jacket Company; second, that having recovered from that company, he should convey seventy feet to Jones. Now, neither Osborne nor his administrator ever did recover from the Yellow Jacket Company, nor did they ever convey seventy feet to Jones.
Now, if Jones himself never was bound to convey, how is it possible that those holding under him (admitting there is any title held by conveyance from him) could be bound to convey by reason of the derivation of title from him ?
But it may be answered that although the conditions never arose on which Jones was to convey, yet he himself became a party to the compromise of the suit against the Yellow Jacket, and thereby prevented the happening of the contingency on which his liability to convey depended. This is all true, and we may admit that Jones thereby became liable to plaintiff in the proper form of action for whatever injury was done to plaintiff by that compromise. But in such case, the plaintiff's remedy, if any, was a pecuniary compensation for his loss. It was not by a conveyance from Jones, for Jones, after the compromise, had nothing to convey. That remedy must have been against Jones alone.
If one covenant to sell or convey land, and refuses to carry out that covenant, the covenantee has two remedies against him. One, an action at law for damages; the other, a bill for specific performance. Whilst the latter remedy may be enforced against either the original covenantor or his vendee with notice, the former can only be enforced against the original party. If, then, Jones violated his covenant by assenting to the compromise, he became personally liable; but that was a liability that could only affect him or his personal representatives in case of his death.
Again, on the other point. The suit between Osborne's administrator and the Yellow Jacket Company was compromised in February or March, 1864. The complaint avers that the administrator made a deed of all Osborne's interest in Februáry, and by consent judgment was rendered for defendant on the 9th of March, 1864. Now if Jones ever had any interest in the mining claim, the whole of it (except what was deeded to the lawyers, and that is not here brought in question) passed to the Yellow Jacket Com•pany by the deed of February, 1864, and the judgment of March 9th, 1864.
There was not a shadow of title or claim of any kind left to Jones. Consequently the deed which he subsequently executed was no more than a mere piece of waste paper. It conveyed nothing because he had nothing to convey.
The conveyance to Osborne by Jones was absolute on its face. It was made for the express purpose of allowing Osborne to prosecute the suit. If he had a right to prosecute the suit he had a right to compromise it. At least the Yellow Jacket had a right, in order to protect their possession, to compromise the suit with him, and if the title passed by such compromise it would be availaable to them. If Osborne, in making such compromise, violated his contract with- Jones, he might be personally liable, but this could not affect the Yellow Jacket Company.
If Osborne had the right to compromise the case without Jones, certainly the fact that Jones assented to the compromise could not invalidate it.
The complaint alleges in substance that he was a party to the compromise which was consummated by the entry of judgment on the ninth of March, 1864, but his deed was not made for months afterwards. The facts stated in the complaint show no grounds of action against the Yellow Jacket Company. The judgment of the Court below must be reversed, and the bill dismissed. It is so ordered.