Hoyle v. Johnson

1907 OK 36, 89 P. 1119, 18 Okla. 330, 1907 Okla. LEXIS 120

• Court: Supreme Court of Oklahoma
• Decided: February 14, 1907
• Status: Published

Opinion

Opinion of the court by

Irwin, J.:

The only grounds urged by plaintiff in error for a reversal of this case, are that the contract as made between the plaintiff and defendant, was one which was in violation of the United States statutes, in regard to the. entering and proving up of public lands, and in support of that he cites section 2362 of the Revised Statutes of the United States, which requires the applicant who seeks to enter land under the pre-emption laws to make oath that “he has not, directly or indirectly, made any agreement or contract in any way or manner," with any person whatsoever, by which the title which he might acquire from the government of the ' United States should inure in whole or in part to the benefit of any person except himself; and if any person taking such oath swears falsely in the premises, he shall forfeit the money which he may have paid for such land, and all right and title -to the same,” and in support of their contention that this contract was a contract by which the defendant was to prove up government land for the purpose of conveying the same to a third party, and that the agreement between plaintiff and defendant was made prior to such proving up and that the proving up of the lands was a part of the contract, and that as the proving up under such circumstances would, necessitate the committing of perjury, that this contract would be void. Counsel for the plaintiff in error select out a small part of the cross-examination of the plaintiff wherein he is made in answer to a question, to say that this contract was that the defendant would prove up for the benefit of another partjq and that they were to sell it to the other party after it was so proved up, but we think that even the portion selected, when viewed in the light of all the other testimony in the case, will not bear this construction. In their brief, they cite the following question:

“Q. Then your contract, that is, if you. had a contract, was that they would prove it up for the benefit of another party ?

“A. Well, yes, about that way.

“Q. They were to prove it up and sell it, or they were to relinquish it?” ■ -

“A. Yes sir.”

Now, it will be seen that this latter question embodied two questions,, that .is, that they were to prove it up and sell it, or, to- relinquish, it, and he makes one general answer to .- both, yes sir.” This would not be a very intelligent answer, but we think when the entire record is examined, it will be apparent that it was not the intention of either the plaintiff or defendant that the proving up of this land was to be a condition precedent to the sale; that the defendant simply contracted with the plaintiff that if he would procure a purchaser who would buy whatever right he had in the land and the improvements situated thereon, for a certain stipulated price that he would allow him a certain commission. The record shows the fact that he did find such a purchaser, and the purchaser paid the price agreed upon, and that the land was never proven up by the defendant, but that the defendant went with the purchaser to the land office and the defendant relinquished his homestead entry and the purchaser filed thereon. We do not think that this case falls within the definition or the section insisted upon by the plaintiff in error. Plaintiff in error cites in support of his contention the decision of the supreme court of Oregon, in the case of Jackson v. Baker, 85 Pac. 512, which provides:

“A contract whereby defendant agreed for a consideration paid by plaintiff and another, to convey to a third party the legal title to defendant's homestead when he had obtained title thereto from the United States, was illegal and void and unenforceable at the demand of either party thetfeto.”

There is no question about this being correct law, but there is grave question in the mind of this court as to its having any application to the facts in this case. Here there was no contract that he was to prove it up. He was simply to sell whatever right he had in the land and sell his improve ments thereon, and he was to do that which he had a legal right to do, go to the land office and relinquish his homestead entry. The purchaser was to do what he had a right to do, provided he was a qualified entryman, file on that land when the homestead entry was relinquished. The evidence shows that the plaintiff performed on his part all that he agreed to do. He found the purchaser; the purchaser paid the price; the defendant received the price, and after receiving the price he seeks to set up the invalidity of his own contract as a defense to his paying his honest debt. Every principle of equity and justice would require that after he had received the benefit of the plaintiff’s services, and applied this benefit to his own use, that he should pay the price agreed upon.

We have received no assistance in a decision of this case from the counsel for the defendant in error and as far as the record shows, he has no counsel. If he has counsel, they have neglected or at least omitted to brief the case, but having examined the entire record and finding no error therein, and believing that the decision of the court below was correctj the same is affirmed at the costs of the plaintiff in error.

Pancoast, J., who presided in the court below, not sitting; all the other Justices concurring.