Rose v. Treadway

By the Court, Whitman, J. Defendant Treadway appeals from an order made in the District Court of the Second Judical District, overruling his motion for a new trial, and from the judgment of the Court against him. The action was to recover fifteen acres of land, portion of a larger tract, claimed by plaintiff under a patent of the United States. Defendant in possession pleaded that he was entitled thereto, and to a deed from plaintiff, by virtue of an agreement that plaintiff should obtain title to the entirety from the Government of the United States, and thereafter deed to defendant the fifteen acres in controversy, in consideration that defendant should refrain from presenting his rightful claim to the larger tract, and should pay the purchase money of the smaller, which was within his inclosure. The question of fact in dispute is, what was the agreement ? Plaintiff claims that he was not to deed unless defendant first ob [458] tained for him the title to certain lands in his possession, but claimed by pre-emption by other parties; and that defendant failed so to do. The allegations of defendant’s answer are clearly proven, unless a certain paper in evidence is to be taken as the real agreement. This paper is in the following words : “ George L. Gibson is to convey to Jacob H. Rose, on demand, after pre-emption by warrantee deed, (or to give bond for perfect title in fee simple upon reception of patent) all that portion of northeast quarter of southeast quarter of section 7 of township 15, range 20, which lies west of said Rose’s east fence. On demand, after A. D. Treadway shall procure for Rose a perfect title in fee simple to all that portion of west half of northeast quarter of said section 7 lying south of said Rose’s north fence, and that portion of southeast quarter of southeast quarter of said section 7 lying west of said Rose’s east fence, said Rose is to convey, by warrantee deed, (or give bond for deed on reception of patent) all that portion of west half of southeast quarter of said section.7 lying south of Tread-way’s north fence, marked on plat ‘ log fence.’ Meanwhile all parties to occupy according to present inclosures. “ Signed March 2d, 1865. “ A. D. Treadway, “ Georse Gibson, “ By Chas. E. Flandrau, their Attorney in Fact. “Jacob H. Rose, “ By Geo. A. Nourse, his Attorney in Fact.” Plaintiff, defendant, and Gibson all testify that they never authorized nor Avere aware of its execution. It can then have no validity as an agreement. Defendant, Chapman, Gatewood, and Gibson all testify to the agreement substantially as set forth in defendant’s answer; and the only contradiction thereof is on part of plaintiff, who testifies that he did not understand that he was to deed to defendant unless defendant obtained for him his possessions claimed by others. The evidence is conclusively in favor of defendant, especially when considered in the light of the undisputed facts: First. That [459] he had the right of pre-emption to the tract, including the land in controversy. Second. That he did not make claim to it by reason of some agreement with plaintiff. Third. That he paid to plaintiff four hundred dollars in settlement of another controversy, and with the understanding on the -part of defendant at least that a sufficient portion thereof should be applied in payment for the land in dispute here. The contract was valid, and neither in contravention of the preemption laws of the United States, nor within the Statute of Frauds. The object of the laws of Congress is certainly fully attained when each settler secures the precise lands which he has occupied, cultivated, and improved; and when under an agreement similar to that between plaintiff and defendant legal title has vested by the issuance of the patent of the United States, a trust results which Courts of equity will enforce against the patentee. (McCoy v. Hughes, 1 Iowa, 371, (Greene) ; Brooks v. Ellis, 3 Iowa, 527, (Greene) ; Bryant v. Hendricks, 5 Iowa, 258, (Clarke) ; Snow v. Flannery, 10 Iowa, 318; Stephenson v. Smith, 7 Mo. 619; Grove's Heirs v. Fulsome et al., 16 Mo. 549 ; Doyle v. Willy, 15 Ill. ; Franklin v. McFlyn, 23 Ill. 91.) Defendant prays a decree for a deed from plaintiff. His pleading does not entitle him to it. He alleges no demand for nor refusal to give a deed. Under the practice in this State a defendant claiming affirmative relief must plead as fully as if plaintiff. The order of the District Court is reversed, and the cause remanded, with leave to defendant to amend his answer.