McCue v. Smith

By the Court McMillan, J. The complaint in this action avers that prior to the year 1860 the Respondents had intermarried with each other, and had lived and cohabited together as husband and wife ; that several children had been born of said marriage and were still living; that the Defendant David Smith, in the early part of the year 1860 separated from and abandoned his said wife without making any provision for her future maintenance and support, and went off to a place called Pike’s Peak, declaring at the time his intention’ never to live with her again in the relation of husband and wife, leaving her and her children destitute and unprovided for; that she continued to live as the head of the family, not receiving any means of support from her said husband till October 10th, 1860, and so competent to pre-empt in her own name, and hold in her own right, public land of the United States, and that she had settled on the lands described in the complaint; ¿that not having the pecuniary means to pay the purchase money and costs, and incidental expenses and disbursements of the preemption, she applied to the Plaintiff to furnish her the same, being the sum of two hundred and fifty-five dollars for that express purpose, to be a charge and lien on the premises, when so purchased, as her separate property, to secure the repayment of said sum, with interest, at the rate of twelve per cent, per annum, in one year, the said Ann Smith to waive the benefit of redemption, and In default of payment of said sum, with the interest, within the time aforesaid, the premises to be sold and the sale to be absolute. The terms of the agreement, and the charge upon said separate property to be evidenced by note and mortgage, or other memo-randa, in writing, as the parties might be advised when the money should be advanced and the transaction consummated; but in [257] either ease the money advanced was to be and remain a charge and lien on said separate property, and the duplicate of said Ann Smith to be deposited with the Plaintiff, to obtain and hold the patent as additional security ; that the Plaintiff accepted the proposition, and the agreement was concluded between the parties, for the Plaintiff to furnish said money on the terms and conditions, and for the purpose aforesaid. That thereafter, on the same day, in pursuance of the said agreement, the Plaintiff advanced the money to the Defendant, Ann Smith, and she purchased therewith the said premises and received her duplicate; that the parties being so advised, the said Ann Smith then and there evidenced her agreement in writing, in the form of a promissory note, and executed a memorandum in writing, in the form of a deed of mortgage, and by a separate instrument waived her right of redemption, all of which are fully set forth in the complaint. The complaint further alleges that no portion of the money or interest has been paid; that said Ann Smith, about the time the money became due, removed with her family to Iowa, leaving no property in this State to satisfy any portion of the debt; that the Defendant, David Smith, has never returned to his family but remains at Pike’s Peak; that said Ann Smith has stated it to be her intention to procure said David Smith to join with her in executing a deed of the premises to some third party, to defeat the Plaintiff of his security. The complaint also alleges that the Plaintiff, in pursuance of the said agreement, having the duplicate, surrendered it to the local land office, and obtained fhe patent, which he holds as additional security; that he has paid taxes on the property amounting to $5.76, and claims judgment that the debt be declared a charge or lien on the said separate property of said Ann Smith, according to the terms of the agreement, etc. The Defendants demurred to the complaint, and the demurrer was sustained. The Plaintiff appeals to this Court. The first ground of objection stated in the demurrer is that it appears upon the face of the complaint “ that all the agreements [258] and contracts, and the note and mortgage, with its covenants and waiver of redemption, upon which this action is founded, are and were, at the time of the making thereof, unauthorized by, and contrary to law, and void.” The transaction out of which the alleged cause of action arose, was the pre-emption, by the Defendant, Ann Smith, of the land described in the complaint. It distinctly appears that the agreement was concluded, and the money advanced by the Plaintiff prior to the purchase of the lands by the said Ann Smith. By the agreement as pleaded, it will be perceived that it was to be evidenced by note and mortgage, or other memoranda in writing, as the parties should be advised when the money should be advanced and the transaction consummated. 'This agreement, as a verbal contract standing alone, would be void under the statute of frauds. But the complaint, after averting the purchase of the land by the Defendant, Ann Smith, states that “ the parties being so advised, the said Ann Smith then and there evidenced her agreement in writing, in the form of a promissory note, and made and executed a memorandum in writing in the form of a deed of mortgage.” And after setting out the note, mortgage and waiver of redemption according to their tenor and effect, the complaint further alleges that “ said Ann Smith thereupon delivered the said duplicate, note and mortgage to, and this plaintiff received the same in pursuance of said agreement, and as evidence of the, same, and with the mutual intent and purpose of charging her said separate estate,” &c. It requires no argument to show that the making of the note and mortgage, whatever may be their effect, was done by Ann Smith, in performance on her part of the verbal agreement, and was received as such by the Plaintiff. The parol agreement being executed, therefore, neither of the parties can afterwards object that the contract was within the statute of frauds. Where a contract, which, when made, was within the statute of frauds, and might have been avoided thereby, has been fully executed, the statute furnishes no defence. [259] But having been made in pursuance of the parol contract, and in performance of it, the validity of the note and mortgage will be affected by anything which impairs the contract itself. The contract having been made prior to the purchase of the land by Ann Smith, is clearly within the prohibition of the 13th section of the act of Congress of Sept. 24, 1841, under which she pre-empted the lands mentioned in the complaint. The section provides, among other things, that before any person claiming the benefit of the act shall be allowed to enter any lands upon which he or she has settled, such person shall make out “ that he or she has not, directly or indirectly, made any agreement or contract in any way or manner, with any person or persons whatsoever, by which the title he or she might acquire from the government of the United States shall inure, in whole or in part, to the benefit of any person except himself or herself.” The title in this instance, which Ann Smith acquired, would, if the contract be valid, inure to the benefit of the Plaintiff, to the extent of his charge or lien upon the premises. The contract is, therefore, illegal and void, and the note and mortgage, being the fruit of the contract, must fall with it. A court of equity will leave the parties where it finds them, not that it sees anything meritorious in the Defendant, but because “ no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act.” This view of the case renders it unnecessary for us to consider any of the other questions raised under the demurrer. . The order sustaining the demurrer is affirmed.