Bryant v. Hendricks

Woodward, J.

From tbe auswer and the testimony, but from tbe latter principally, it is quite manifest that, when Hendricks was negotiating for tbe purchase of tbe claim of Lucian Bryant, tbe latter informed him that bis father’s claim extended upon tbe north-east “ forty,” and that be, Lucian, was under obligation to regard it, and that be did reserve it from tbe sale; and acting for bis father, or, to carry out their understanding, agreed that his father would furnish money to purchase that parcel-It is well known, that so small a parcel cannot be entered at tbe land office, and that such an object is to be attained, only through private arrangement. Tbe plaintiff might have entered tbe “forty,” or bis son might do so, and convey to bis father. We have a right, judging from tbe proof and the circumstances, to presume that tbe son would have conveyed to bis father.

Tbe defendant intimated that be did not wish tbe money in order to enter it, as be should purchase with land warrants. Lucian told him the money was ready, and be could have it at any time. And it appears that it was afterward offered to him more than once, and was finally, formally tendered. Tbe testimony shows that tbe defendant, several times, after bis purchase, spoke of tbe plaintiff’s right, and expressed bis intention to convey to him, when a survey could be made. It appears that complainant bad a fence around this field, which defendant spoke of, as tbe petitioner’s; and that tbe soil was broken up, as for culture; and we understand tbe evidence to mean, (although it is not entirely free from ambiguity), that tbe complainant bad a bouse, and perhaps other buildings, on this parcel.

Tbe defendant denies tbe main drift- of tbe bill. He admits that be purchased tbe claim, and that be expressed a willingness to sell to the petitioner, but not at one dollar *259 and a quarter per acre. He denies that he agreed to convey to complainant, and pleads the statute of frauds, alleging that no such contract is proved by •writing. If this is to be regarded as a contract to sell, then it is within the statute of frauds, and the decree of the District Court, should have been for the respondent. But there is another, and we think a truer light, in which to view it. The cases have been quite numerous in this territory and state, in which the courts have upheld contracts, consisting in the undertaking of one person to enter lands for others, or for himself and others. These instances have often occurred. It has been true of many of our town-sites; and it has not been regarded as an essential, that the money should have been actually advanced, before the purchase. One has undertaken to enter a tract for himself and others entitled thereto, they agreeing to repay to him, a suitable pro rata sum, to cover his expenses, and, it may also be, his trouble*. These undertakings have been enforced. The case of Briggs v. Shortridge (not reported), was of the like kind. In this, the money had not been advanced by Shortridge, but Briggs undertook to purchase, and then divide according to their claims, Shortridge paying his proportion. The case of Sullivan v. McLenan, 2 Iowa, 537 , is based upon the same idea. See also, McCoy v. Hughes, 1 G. Greene, 370. A trust lies at the basis. Neither can purchase his portion from the government, but either can purchase the whole, and one undertakes to purchase for the common benefit, and to divide.

This is the view we take of the present case. It is a case of trust. Parol testimony is always admissible, to prove those facts which cause the transaction to assume the character of an implied or a resulting trust. It is all the same, as if the defendant purchased with the money of the plaintiff. He might have had it before the purchase, but he preferred entering by land warrants. It was offered and finally tendered, and is now paid into court. The-petitioner might have entered the “forty,” but relying on his son first, and afterward on the promise of *260 defendant, he suffered him to enter it. Here is a confidence, a trust, and one-which can be enforced; and we are of opinion that the decree of the district court should be affirmed.

It is objected that there is not sufficient identification of the parcel of land. The answer makes no question upon the identity of the piece, but stands upon a denial of the contract or obligation, admitting that he had expressed a willingness to sell this tract, in effect, to complainant, upon some fair terms. It maybe said that by both the answer and the testimony, the identity of the parcel, as an unsurveyed tract, made is out, and that tbe only question which can be made is upon the precise description, and as to this the defendant suggests no doubt in his answer. One of the witnesses says she saw it surveyed, and shows that the parcel so surveyed, is the same with that spoken of in other terms by the parties and the witnesses. It is true that the plaintiff has been remiss in his proof on this point, as he should have had the testimony of the surveyor, or some other, one directly to this point, but yet, by saying that the land described, is not that about which the defendant negotiated with Lucian Bryant, would, we think, be doing violence to the case. See further, Mosier v. Ellis, 3 G. Greene, 247, Brooks v. Ellis, 3 G. Greene, 527; Ogilvie et al. v. Foster, (not reported).

The decree of the district court is affirmed.