Phenix v. Bijelich

By the Court, Norcross, J.: This is an appeal from a judgment upon the pleadings entered in pursuance of a motion for that purpose. The complaint contains the following allegations: "That on, to wit, the 31st day of January, 1905, the plaintiffs were the owners of that certain lode mining claim in Goldfield Mining District, County of Esmeralda, State of Nevada, known and called the 'September,’ and on said day said plaintiffs and said defendant made and entered into a written — 265 — agreement, a true copy of which is hereunto attached, marked 'Exhibit A,’ and made a part of this complaint; that thereafter said defendant in pursuance of said agreement paid said plaintiffs the sum of $75 and entered into the possession and occupancy of said lot of land in said agreement described, and ever since has been and now is in the occupation and possession thereof; that said defendant has made no further payments, and although more than ten days has" expired since the remaining payment as provided in said agreement became due, and was to be made, and although demand has been made therefor, said defendant has failed, refused, and neglected to pay the same, and therefore plaintiffs aver that said defendant has forfeited his said contract and agreement as-in said agreement specified, and plaintiffs are entitled to the possession and sole ownership of said lot of land and improvements thereon.” The material portions of the agreement referred to in and made a part of the complaint read as follows: "This agreement, made and entered into at Goldfield, Esmeralda County, Nevada, this 31st day of January, A. D. 1905, by and between G. L. Phenix, Dr. White Wolf, P. C. Kortz, W. S. Williams, and Addie Williams, of Goldfield, Nevada, parties of the first part, and Nikola K. Bijelich of Goldfield, Nevada, party of the second .part. Witnesseth, whereas the said party of the first part is the owner of that certain mining claim known and designated as the 'September,’ situated in the Goldfield Mining District, Esmeralda County, Nevada, and whereas the said party of the second part is desirous of securing a portion of the surface ground of said claim. Now, therefore, in consideration of the sum of one dollar ($1) lawful money of the United States, paid to the first parties, by the second party, the receipt whereof is hereby acknowledged, and in consideration of the covenants and agreements hereinafter contained, the parties hereunto have promised, covenanted and agreed and do hereby promise, covenant and agree as follows: (1) The second party shall have, and he is hereby given a leasehold interest in and to the surface ground embraced within that certain lot, or parcel of land, designated upon the town-site survey of said mining claim — 266 — as lot No. 5, in block No. 4, said leasehold interest to continue until the first parties acquire a government patent to said September mining location. (2) The second party agrees to pay to the owners of said mining claim the sum of $225, gold coin of the United States, at the time and in the manner following: ($75) seventy-five dollars cash down, upon the signing of this agreement, and the balance, in several deferred payments as follows: On or before July 30th, 1905, $150, together with the further sum of one dollar ($1) per annum, payable in advance as rental, said deferred payments shall bear interest at the rate of one per cent per month until paid. It is expressly understood and agreed by the parties hereto that if the second party shall.fail, neglect or refuse to make said payments or any of them, as above specified, and said payments or any of them shall be in default or arrears, for a period of ten days following the date when such payment is due and payable, then and in that event, the first parties, or any of them, may enter into and take possession of said premises together with the improvements without further notice or demand and without process of law, and the second party will surrender to the first parties all of the second party’s right, title and interest in and to said. premises or arising under and by virtue of this contract as liquidated damages for said breach of contract. * * * (3) Upon issuance of a government patent for said September mining claim, the first parties will make and execute and deliver to the second party a good and sufficient deed to said lot No.5, provided the second party shall make written demand therefor upon the first parties together with the tender of one dollar within six months after the date of recording said patent in the office of the recorder of said county. * * * (6) Time is of the essence of this agreement.” Defendant’s answer contains the following admissions, denials and allegation: " (1) Defendant admits that he entered into an agreement as set forth in plaintiffs’ complaint, also, that he paid the plaintiffs the sum of seventy-five dollars. Defendant also admits that he has refused to make further payments under said agreement. Defendant also admits that he is in pos — 267 — session of the property described in plaintiffs’ .complaint. (2) Defendant, further answering, denies that the plaintiffs are the owners, and entitled to the possession of a certain lode mining claim, called the 'September/ situated in Goldfield Mining District, Esmeralda County, Nevada. (3) The defendant, further answering, charges that the plaintiffs falsely, and fraudulently represented to the defendant that they were the owners of said property, when in truth and in fact said plaintiffs never did have, and have not now, any title whatsoever to said lode mining claim. (4) Defendant, further answering, alleges that he has expended a large sum of money, to wit, fifteen hundred dollars in improving said property, and is entitled to said improvement's together with the possession of said property. "Wherefore defendant prays that said contract be canceled and annulled, and all moneys paid the plaintiffs under said contract be adjudged the property of this defendant, and that this defendant have the right of possession of said property, and his improvements thereon, and his costs of suit, and such other and further relief as the court may deem equitable and just. "Nicola K. Bijelich, "Nikola K. Bijelich, by "Elmer Rogers, Attorney for Deft. "Subscribed and sworn to before me this 15th day of May, 1907. "E. Hardy, Clerk of District Court, "By J. B. Rourke, Deputy.” Respondents’ motion for judgment on the pleadings was based upon the following grounds and none other: "That the denials and statements set forth in defendant’s answer raises no issue to be tried and constitutes no defense to plaintiffs’ cause of action as set forth in plaintiffs’ complaint!’ Respondents raise the question upon this appeal that as the complaint was verified, and the answer not verified, that alone would be sufficient cause to affirm the judgment. While there is a pretense of- a verification of the answer, made after the filing of the answer but before entry of judg — 268 — ment, it must be Teadily conceded that such verification is not in accordance with the provisions of the statute and upon proper objection would be held insufficient, in which case an opportunity should be granted to amend. However, no question as to the sufficiency of the verification of the answer was raised in the lower court, and it cannot, therefore, be raised for the first time in this court. Counsel, we think, by moving for judgment upon the pleadings upon other specific grounds, waived objection to the verification. It is contended by counsel for respondents that appellant is governed by the rule providing that while the vendee remains in possession of the land conveyed under the contract and claims the right of possession under the contract, he cannot dispute the vendor's title or refuse to comply with the terms of the contract, and that an application of this rule to the facts admitted by the pleadings in this case affords a complete justification for the judgment. awarding plaintiffs possession of the property, together with the improvements, and payments made as liquidated damages as prayed for in the complaint. That the rule contended for is the general rule may be conceded. The pleadings, however, in this ease, we think, take it outside the rule's application. While the answer of the defendant admits that he entered into the contract in question with the 'plaintiffs, he alleges that such contract was fraudulent in its inception in that plaintiffs falsely and fraudulently represented that they were the owners of the said-" September” mining claim, "when in truth and in fact said plaintiffs never did have, and have not now, any title whatsoever to said lode mining claim.” The answer also specifically denies the plaintiffs’ allegation of ownership of the claim, and alleges that defendant is entitled to possession of the property involved in the action. It cannot, we think, be said, as counsel for respondents contends, that appellant "claims the right of possession under the contract;’ There is nothing in the pleadings wherein appellant makes any such specific claim affirmatively or admits such fact by failure to deny an allegation to that effect of the plaintiffs. Other allegations in the answer — 269 — are inconsistent with such position. In all of the cases to which our attention has been called and others which we have examined where the general rule has been enforced, the grantor has been conceded to have some title to the premises in controversy. The appellant in this ease, however, does not even concede a defective title in plaintiffs and respondents, but on the contrary he alleges that "plaintiffs never did have, and have not now, any title whatsoever to said lode mining claim.” He charges, in effect, that the contract sought to be enforced was induced by the false and fraudulent representations of the respondents and that he received nothing by reason thereof. "When a party moves for judgment on the pleadings, he not only for the purposes of his motion admits the truth of all the allegations of his adversary, but must also be deemed to have admitted the untruth of all his own allegations which have been denied by his adversary.” (Walling v. Bown, 9 Idaho, 184, 72 Pac. 960; Idaho Placer Min. Co. v. Green [Idaho] 94 Pac. 161, 164; 11 Ency. Pl. & Pr. 1046.) When the motion for judgment upon the pleadings was made, applying the rule, last quoted, it was conceded that defendant never acquired any rights to the land under the contract, for the reason that the plaintiffs had none to convey, and that plaintiffs were not in position to carry out their part of the agreement in any extent whatever. In a case, somewhat similar in principle to this, the Supreme Court of Michigan in an opinion written for the court by Cooley, J., said: "Equity could not allow the rights of a purchaser under such a contract to be forfeited by the vendor, when the latter had no title to convey., and was not in position to perform his own undertaking” (Converse v. Blumrich, 14 Mich. 109, 90 Am. Dec. 230; Getty v. Peters, 82 Mich. 661, 46 N. W. 1036, 10 L. R. A. 465; Warren v. Crew, 22 Iowa, 315; Peck v. Brighton Co., 69 Ill. 200.) Where a vendee in possession seeks to rescind a contract for the sale of land because of defect in the title, he is in duty bound to restore to the vendor what he received under the contract and place the vendor in his original situation, but where he received nothing from the vendor under the — 270 — contract, asserts fraud upon the part of the vendor in falsely representing the title, and claims title in himself, the reason for the rule fails. (Whitlock v. Denlinger, 59 Ill. 96.) We think the answer of the defendant, especially in the absence of a demurrer thereto, sets up a good defense to plaintiff’s cause of action. This view of the case makes it unnecessary to determine other questions presented. The judgment is reversed, and the cause remanded for trial.