Fideler v. Norton , 4 Dakota 258 ( 1886 )

Francis, J.

This is an appeal from the judgment of the district court sustaining a demurrer to the complaint .and dismissing the action. For a proper understanding of the points involved it is necessary to quote the complaint in full:

“COMPLAINT.

The plaintiffs in their complain^ state their cause of action as follows:

(1) That the above named John F. Norton and J. Harry Brown, who are made defendants, as well in their partnership capacity as individually, compose the firm of Norton & Brown, of Salem, Dakota, a partnership engaged in business, at the time of the agreement hereinafter mentioned, as agents for claimants of government land under the United States land laws, in the transaction of a general real estate business, and in banking and brokerage.

(2) That on or about the seventeenth of July, 1879, the said Magdaline Adamson made homestead entry upon the S. E. i- section 14, township 102, range 55, county of McCook, territory of Dakota.

(3) That on or about the seventeenth of July, 1880, the said Magdaline Adamson conveyed, or attempted to convey, her interest in said land to -Peter Fideler, one of the plaintiffs above mentioned; that she received in consideration of such transfer, a horse rake costing and representing §35, and that she delivered to said Fideler the duplicate receipt given her when she made her homestead entry, with a formal relinquishment of the land to the United States indorsed by her thereon.

(4) That said relinquishment was never surrendered to the register and receiver of the local land district, to the. end that the land might revert to the government and be open to entry by the said Fideler, but the said Fideler, while retaining the possession of the relinquishment, and holding the lan d under his control as against the said Magdaline Adamson, took no further steps at that time to perfect the transfer or attempted transfer.

(5j That within or about the month of November, 1881, at the office of Norton & Brown, in Salem, Dakota, a verbal contract was made between Peter Fideler on one side and Norton & Brown on the other, by which the said firm of Norton & Brown became the agents of said. Fideler, in the regular course of their real estate business, for securing to said Fideler, or to his wife for him, the legal title to the land entered, as above set forth, by Magdaline Adau^son; that in making this contract Norton & Brown were represented by John F. Norton, the member of said firm through whom most of the firm’s land business was transacted; that the terms of this agreement, made at the time and place aforesaid, between Peter Fideler and John F. Norton, representing Norton & Brown, as aforesaid, were as ■follows:

‘(a) The said John F. Norton, representing Norton & Brown, as aforesaid, agreed, as a necessary preliminary to the securing by said Magdaline Adamson of a title which she might transfer, to deliver to her the relinquishment which she had given to the said Peter Fideler, to the end that she might prove up on the lands aforesaid under the act of congress approved June 15, 1880, entitled. ‘An act relating to the public lands of the United States;’ such delivery to be made on the express condition, however, that she should, on proving up, deed said lands to Fideler or to his wife for him, and the said Norton, representing Norton & Brown, as aforesaid, also agreed to oversee such proving up, and the execution of the deed, and to take all steps necessary to secure a valid deed to the land in question directly from said Magdaline Adamson to said Fideler, or his wife for him.

(ft) The compensation from said Fideler to said Norton, for Norton & Brown, for their services as agents in the purchase of said land, and in taking the necessary steps preliminary thereto, was to be $25.

(c) The consideration for the deed from the above named Magdaline Adamson to the said Fideler, or to his wife for him, was to be the delivery to said Magdaline Adamson of her reliquishment, representing a valuable consideration, as aforesaid; the money expended by the said Magdaline Adamson in proving up not to exceed $200, and an amount not to exceed $50 in addition.

(d) The consideration to Magdaline Adamson, with the exception of the part of it which was represented by the delivery to the said Magdaline Adamson of her relinquishment of the land, was to be advanced by the said Norton & Brown, through the said Norton, or by said Norton individually; and simultaneously with the delivery to Fideler of the deed from Magdaline Adamson conveying the land to him, or to his wife for him, the said Fideler and his wife were to execute and deliver to the said firm; or to the member of said firm advancing the part consideration aforesaid, a mortgage on the land for the amount of such advances and the agent’s fee of $25; the debt secured not to exceed in all $275, as above set forth.

(6) That relying upon the promises made by the said John F. Norton, representing Norton & Brown, and in pursuance of the above mentioned agreement, the said Fideler left with the said Norton the relinquishment delivered to him by Magdaline Adamson, to be used by Norton & Brown, as his agents and for his advantage, in the manner agreed upon.

(7) That Norton & Brown, through the'said Norton, with said relinquishment in possession, negotiated with Magdaline Adamson, and that, as a result of such negotiations, Magdaline Adamson proved up on said land, April 12, 1882; but that when the deed from Magdaline Adamson was drawn, at or about the time of her proving up, as provided by the agreement above mentioned, the firm of Norton & Brown, through the said John F. Norton, in fraud of the rights of said Fideler, their principal, and in violation of their agreement and duty as the agents of said Fideler, caused to be inserted in said deed, as grantee, the name of J. Harry Brown, one of the said firm of Norton & Brown, the agents of said Fideler for the purchase of said land as hereinbefore set forth; and that said deed was recorded shortly after its execution in the records of land transfer in the office of the register of deeds for McCook county, Dakota.

(8) The plaintiffs are informed and believe, and therefore aver, that the said J. Harry Brown well knew the terms of the agreement between the said Fideler and his partner, John F. Norton, representing Norton & Brown, and that the said J. Harry Brown, in receiving conveyance of said land, had actual knowledge of the fraud involved in inserting another name than that of Peter Fideler or his wife as grantee in the deed from Magdaline Adamson.

(9) That the plaintiffs have frequently demanded of Norton & Brown, by demanding of John F. Norton, the member of that firm with whom most of their dealings had been conducted, the conveyance to them, or to either of them, of the property thus conveyed to and held by one of the agents employed to make the purchase of the property for them; but that the said Norton, representing himself and his partner, the grantee as aforesaid, at first promised, but postponed the plaintiffs, and finally refused outright to make, or cause to be made, such conveyance, except on terms in violation of the agreement aforesaid, which would constitute plaintiffs substantially new cash purchasers of the land for its full value.

Wherefore, plaintiffs demand judgment against defendants:

(1) That the deed from Magdaline A.damson, as Magdaline Quick, to J. Harry Brown, conveying the S. E. section 14, township 102, range 55, county of McCook, territory of Dakota, and absolute on its face, be declared a deed to said Brown in trust for Peter Fideler.

(2) That the said J. Harry Brown be compelled to transfer by proper conveyance to Peter Fideler the legal title to said land, free from all incumbrances done or suffered by J. Harry Brown, or his partner, the said Norton, or by said firm of Norton & Brown; the plaintiffs being willing, and hereby offering specifically, to perform the agreement hereinbefore set forth, and, on receiving the conveyance of said land to said Fideler, to execute and deliver, in such form and to such person as the court may direct, a mortgage on the land to secure the amount actually advanced by said firm, or some one of its members, and the agent’s fee, under the aforesaid agreement, not to exceed in all $275, and excluding all expenses incurred in connection with the land since the date of the fraudulent conveyance to J. Harry Brown.

(3) That the plaintiffs be decreed their costs in this action.

(4) That the plaintiffs be granted such other and further relief as the nature of the circumstances of this case may require, and to the court shall seem proper. ”

In the district court counsel for the defendants demurred to this complaint, on the ground that ‘ ‘it does not state facts sufficient to state a cause of action, ” and the court sustained the demurrer, and dismissed the action, with costs against the plaintiff. Counsel for the appellants allege error in the sus-, taining of said demurrer, in the dismission of said action, and in the rendering of judgments for defendants.

Reading the complaint, we must conclude that so far as the facts sought to be stated are concerned, it sufficiently states them, although it is apparent that, in some particulars, it might be made more full, definite and complete. We are not, however, to look at the complaint with a merely critical eye in order to ascertain how far it is removed from, or how near it approaches to, the best and most approved forms and methods of artistic pleading; neither a,re we to apply to it the test of esthetic legal experience, accomplishments or requirements, but we are simply to determine whether or not it contains statements or allegations which, if true, (and the demurrer admits their truth,) sufficiently set forth a cause of action; and Section 128 of our Code of Civil Procedure provides that “in the construction of a pleading for the purpose of determining its effect its allegations shail be liberally construed, with a view of substantial justice between the parties.” Thus construed, the complaint is sufficient in form, and, as will be seen in the further discussion of the case, the facts alleged constitute a cause of action.

It is, nevertheless, well to here observe, speaking generally, that there is need of much improvement in the matter of drawing and preparing papers and pleadings in proceedings in the district courts and in the supreme court of this territory. Practitioners should promptly and effectually banish the idea, somewhat widely prevalent that, under our codes, there is no requirement or necessity for uniformity or exactness in pleading or practice, and that pleading and practice, after the pattern of that of any or all of the states of the union, or of no known form of practice, is sufficient. The aim and effort of court and bar should be to create, perfect and establish, as nearly as possible, a complete, concise, convenient and uniform system and form of pleading and practice which shall become general throughout the territory, and be^ distinctively known and recognized as a Dakota product.

By the provisions of Sections 920 and 993 of our Civil Code agreements for the sale of real property, or of an interest therein, are invalid, unless the same, or some note or memorandum thereof be in writing; and it is claimed by counsel for respondents that the parol contract or agreement set forth in the complaint, as made between Peter Fideler, one of the appellants, and the respondents, is void under the statute of frauds. In order to ascertain the correctness or incorrectness of this insist ment, as a distinct legal proposition, it would be necessary to inquire and determine "with particularity what is embraced in the words “sale of real projjerty, or of an interest therein,” and whether or not the contract or agreement set out in the complaint is one for the sale of real property, or of an interest therein, within the meaning or perview of the statute, or is one that is required by any provision of our statutes to be in writing; Section 918 of the Civil Code, providing that “all contracts may be oral, except such as are specially required by statute to be in writing. ” But the view taken by this court of the case now at bar renders such inquiry and determination unnecessary as the case may well be decided by the application of established and clearly recognized and admitted principles, without determining whether or not said contract'is "within the statute of frauds. Under the circumstances of this case said contract is one, the specific performance of which could be decreed by an equity court, even though the contract itself should be within the statute of frauds.

The appellants in this action, in effect, ask the court to compel the said respondents to specifically perform the contract on their part by directing the said J. Harry Brown to transfer the legal title to said land to said Peter Fideler, by proper conveyance, and thus invest the said Fideler with the title to said land, which, by the terms of said contract, the said respondents were to obtain for the said Fideler from the said Magdaline Adamson, bnt which, in violation of said contract, the said respondents took in the name of said J. Harry Brown one of the respondents, by having inserted, as grantee in the- deed for said land from said Magdaline Adamson, which in part performance of said contract they procured from her, the name of J. Harry Brown in place of the name of said Peter Fideler, or that -of his wife; and the statute of frauds is no bar to the granting of such relief.

Taking the argument of counsel for the respondents in connection with the complaint, it would seem that the respondents are seeking to hold fast to the result or gain of their own fraudulent, illegal, and inequitable act, on the ground that the acts of the appellants Peter Fideler and Magdaline Adamson, through which they (respondents) were enabled to consummate their design, were illegal or against public policy, and that one man may commit fraud, or betray a trust, and be secure in the possession of its fruit, if only he can show that, in the transaction through which he obtained that fruit, some other person perpetrated fraud, or joined him in a void contract, or in one that was against public policy. The mind of equity is incapable of such reasoning, and iis principles and practice forbid such a result or conclusion. Equity will never willingly permit the statute of frauds to be used as a shield in defense of fraud; and while, in many cases, under proper circumstances, the statute of frauds may prevent the compelling of one person to carry out or fulfill the obligation or act imposed upon him by terms of a verbal contract or agreement entered into by him with another, yet when, (as in this case,) in the part performance of that contract or agreement, or by means, opportunity or facilities furnished by or in pursuance of the terms thereof, one of the parties thereto fraudulently, or in betrayal of the trust or obligation imposed upon him in and by virtue of said contract or agreement, secures for himself the advantage or gain which, in the carrying out of his part of said contract or agreement, he was bound by the terms thereof, in good conscience, to secure for the other party thereto, or, having secured said advantage or gain, by means of the use or carrying out of the facilities or terms of said contract or agreement, or of any of them, appropriates said advantage or gain to his own use, or takes to himself, or to another for his own benefit, what he was bound, under the very terms and conditions of said contract or agreement, to obtain for and deliver to the other party thereto, in fraud of the rights of said other party, equity will decree that he will surrender his ill gotten gain or advantage, and compel him to restore to the other party to said contract or agreement the gain or advantage which he contracted or agreed to secure for and deliver to him, but which, having secured, he appropriated to his own use, or which he secured for himself, or for another in his interest, in violation of plain principles of equity, and of the very terms and conditions of said contract or agreement in that regard. And this use, application, and exercise' of equity the statute of frauds was not enacted to prevent.

The statute of frauds makes invalid an agreement for the sale of lands not in writing; and it is thereby incapable of being enforced against a defendant if he pleads the statute, unless such circumstances are presented as will warrant a court, in the exercise of equity, in enforcing the agreement, or affording relief in the face of the statute, or upon the ground of a constructive trust, (or, as the Civil Code denominates it, an “involuntary trust.”) created or arising by operation of law. One of the grounds warranting such action by a court of équity is that there has been a part performance of the agreement, and our statute of frauds contains a recognition of the doctrine and application of “part performance” when it enacts that it (the statute) “does not abridge the power of any court to compel the specific performance oi any agreement for the sale of real property in case of part performance thereof.”

Having in view what constitutes a part performance sufficient to permit the enforcement of an agreement within the statute of frauds, it may be said that a parol agreement concerning the sale or transfer of real property, cannot be avoided in equity, on the ground that it is not in writing, and is therefore within the statute of frauds, when it has been partly performed; and this is particularly true when a confidential or fiduciary relation exists between the parties to the agreement, or results from or is created by its terms or conditions. As said by Justice Story, more than 40 years ago, in'Jenkins v. Eldredge, 3 Story 289, 290, it may be said in this case: “It appears to me that here a confidential relation of principal and agent did exist; and, that being once shown, it disables the party from insisting upon the objection that the trust is void as being by parol. The very confidential relation of principal and agent has been treated ■ as, ior this purpose, a case sui generis. It is deemed a fraud for an agent to avail himself of his confidential relation to drive a bargain, or create an interest adverse to that of his principal in the transaction; and that fraud creates a trust, even when the agency itself may be, nay, must be, proved only by parol. ” It is doubtless true that, in order to take a parol contract out of the statute of frauds on the ground of part performance, there must be such a part performance of it by the defendant, or by the plaintiff, or by both, as will render it a fraud on the plaintiff if the defendant refuses to complete the contract on his part.

That there has been such a part performance by the respondents is manifest. From the allegations in the complaint (which, as we have seen, must be taken as true,) we may conclude that the respondents performed the negotiations required of them by said agreement, to the extent that, as the result of said negotiations, the said Magdaline Adamson made proper application at the United States land office, and obtained from the government the title to said lands, and made a deed therefor, the money consideration for which the respondents advanced or paid, which deed, under said agreement, the said respondents were to obtain directly from said Adamson to said Peter Fideler, one of the appellants, or to his wife, the other appellant, and advance and pay the money consideration therefor, but which, in fraud of said appellants, and in violation of said agreement, they took from the said Adamson to one of themselves as grantee, and now refuse to invest the said Peter Fideler, or his wife, with the title to said lands; thus seeking to defeat, destroy and render impossible of consummation the very essense, intention, object and end of said agreement.

That there has been such a part performance by Peter Fipeler, one of the appellants, also plainly appears. After the making of said agreement the said Peter Fideler, in part performance of the terms thereof, delivered to John F. Norton, one of the firm of Norton & Brown, the other parties to said agreement, the relinquishment, and the-receiver’s receipt upon which it was indorsed, (which relinquishment was purchased and received by him, said Fideler, from said Magdaline Adam-son, for valuable consideration to her paid by said Fideler,) to be used by said Norton & Brown as agents of Peter Fideler, and for his advantage, in its delivery by them to said Magdaline Adamson, in securing for and to him (said Fideler) the title and transfer of said lands, for the very securing of which said agreement was entered into. This relinquishment was to Peter Fideler, the key to the whole situation. The relinquishment, being to the United States, was of no effect as to the filing upon said lands, until presented and filed in the proper United States land office; but. when there presented and filed, it would cause the cancellation of the former filing of said Magdaline Adamson on said lands, and the said lands would then again become a part of the public domain, subject to entry ox-filing, the same as though said Magdaline Adamson had never made her homestead entry thereon. So that the said Fideler, with this relinquishment in his possession, could, by presenting and filing it at the proper United States land office, have filed upon or entered the said lands, and thereby secured the right himself to purchase said lands under the act of June 15, 1880. By surrendeiing, then, said relinquishment to his agents, Norton & Brown, in pursuance of said agreement, said Fideler gave up the very thing which, while he retained it, gave him means and facility for securing the lands for himself, and the surrender of which rr ade his securing of the lands dependent upon the good faith of his agents and the said Magdaline Adamson. The surrender of the relinquishment by Fideler to his said agents, and the return of it by them to said Magdaline Adamson, also reinstated her in her former position and relation with respect to said lands, and induced her to go to the land office, and, as one having a homestead filing or entry upon said lands, make the purchase of said lands from the United States under the provisions nf said act of June 15, 1880, which she did upon the return of the relinquishment to her, and the doing of which by her was one of the main objects sought to be attained in the making of said agreement. The surrender of said relinquishment by said Fideler to his said agents, Norton & Brown, made the carrying out of ther terms of said agreement possible, and, at the same time, through such surrender, the respondents, said agents, were able to perpetrate the fraud upon Fideler, and obtain for themselves, by breach of the obligations imposed upon them by the terms and conditions of said agreement, and by law and good conscience, the paper title to the lands in question. When, therefore, said Fideler, in fulfillment of one of the terms of said agreement, delivered said relinquishment to said Norton & Brown, there was a very important and substantial part performance of said agreement on his part, and such a part performance as rendered it a fraud upon him when the respondents not only refused to carry out the said agreement on their part, but made use of this very part performance of Fideler to deprive and defraud him of, and secure to themselves, the thing or advantage which was to come to him and be his through and by means of this, his part per formance, under the terms of said agreement.

An agent who has entered into a parol agreement to negotiate for and obtain the title to certain lands for and in behalf of the other party to the agreement, and procure a deed for said lands from the owner thereof, directly to said other party, or to his wife, cannot by partly performing said agreement, secure or take to himself, or to another in his interest or for his benefit, the title to said lands, and hold it in fraud of the said other party thereto, on the plea that the agreement is within the statute of frauds; and in such a case equity will afford relief to the party defrauded or injured, notwithstanding the fact that the agreement itself, not being in writing, is within the statute of frauds. And this relief will be all ' the more readily and properly extended whenever it appears that the party defrauded or injured has himself partly performed the agreement in any of its substantial or essential particulars. The appellants are entitled to the relief prayed for, on the ground of part performance.

They are also entitled to relief upon another principle, the existence and application of which largely depend upon the doctrine and fact of part performance as a legal, equitable and actual circumstance. Under the said agreement, and the allegations of the complaint, admitted by the demurrer to be true, when the said John F. Norton, one of the firm of Norton & Brown the respondents, having partly performed said agreement, which had then also been partly performed by Peter Fideler, with whom they made said agreement, secured and took the deed for said lands from said Magdaline Adamson in the name of J. Harry Brown, the other member of said firm, as grantee, then, under the circumstances of this case, the said John F. Norton and the said J. Harry Brown, and said firm of Norton & Brown, agents of said Peter Fideler, and respondents on this appeal, took the said deed, and the title transferred thereby, and now hold the same in trust for the berefit of the said Peter Fideler; this being clearly a case in which the doctrine or principle of a constructive or involuntary trust created or arising by operation of law — frequently recognized and given effect to by courts — should be applied. See, in this connection, Sections 1288, 1290-1292, 1296, 1301, 1304. Civil Code.

As said in Dumphy v. Ryan, 116 U. S. 498, S. C. 6 Sup. Ct. Rep. 486: “The statute of frauds is founded in wisdom, and has been justified by long experience;” but as also remarked in the same case, “Courts of equity to prevent the statute from becoming an instrument of fraud, have in many instances relaxed its provisions.”

We then conclude that even if the agreement in question, was, when made, invalid under the statute of frauds, it has, in this case been so far taken out of the statute, and so removed from its invalidating force and effect, that it may be enforced, and the relief sought by the appellants may properly be granted, on the ground of part performance, and to prever t the statute from itself being used or operating as a means or instrument of fraud, and by reason of a constructive or involuntary trust which has arisen by operation of law from the circumstances of the case, making the respondents trustees of the appellants, holding the title to said lands for their (appellants) benefit. If the agreement is not within the statute of frauds, it can clearly be enforced, and the appellants are entitled to the like relief. See Rose v. Hayden, 10 Pac. Rep. 554-564; also, Union Pac. R. Co. v. Durant, 95 U. S. 576-579; and Williams v. Morris, Id. 456, 457.

The l’espondents were acting, not only as real estate agents, but also as the agents of the said appellant Peter Fideler, and there is very little, if any, difference in the principles that should govern such a relation and that of attorney and cliant. In either case the relation was a fiduciary one, and both the agent and the attorney (who is, in fact, only an agent of a higher grade) hold the interests committed to them by their employer as a sacred and absolute trust, not to be bartered, perverted or used in the betrayal of the obligations arising out of the relation.

The language of Justice Swayne, in Railroad Co. v. Durant, 5 Otto 579, may well be applied in this case, (substituting “respondents” for “trustee” and “appellee,”) viz: “The position assumed by the respondents in this case is not unlike that of one who, having deprived the owner of the possession of his property, when called to account civilly or criminally, should insist that the owner’s title was fatally tainted with fraud and that hence the offender had the right to ‘take and carry awTay,’ and keep and enjoy, the property himself with impunity. The conduct of the respondents, stripped of the verbiage with which it has been surrounded, and viewed in its nakedness strongly offends the moral sense of the judicial mind.”

One other point remains to be disposed of. It is contended by the attorneys for the respondents that no constructive trust could arise in this case, because, as they assert, “the attempted conveyance by the claimant of her interest in said land to Fideler, and his contract with Norton & Brown to secure a conveyance in another way, are illegal and void as against public policy.” After a careful examination of this point, I am unable to discover that it has any foundation or place in law or reason. The contention that Magdaline Adamson, when she made her homestead entry or filing upon the lands in question, made affidavit that her application was made for her own exclusive use and benefit, and that her entry was made for the purpose of actual settlement and cultivation, and rot, either directly or indirectly, for the use or benefit of any other person, and that, therefore, “the employment of defendants to procure her to make final proof for the benefit of plaintiffs, and, as a part of the same transaction, convey to Peter Fideler, was in contravention of public law,” has no weight, as it appears that the entry by said Magdaline Adamson was made on July 17, 1879, and her relinquishment to the United States, and the delivery thereof to Fideler, occurred July 17, 1880. There being, then, one year between the date of her entry and that of her relinquishment, the case of a relinquishment executed so soon after the date of the filing or entry as to give grounds for suspicion of fraud is not presented. And there is no proof that when she made her entry, and the said affidavit required by law, she had entered into any agreement to relinquish the lands or dispose of her right or interest therein to said Fideler, or had any such intention. On the contrary, the presumption is that she had not; and neither the law or the court will presume fraud or wrong in the absense of proof or facts upon which to base the presumption, or strain their vision in a voyage of discovery in seeking to find some pretext for declaring a contract void, as against public policy, which upon its face, and in the light of the surroundings, appears to be bona fide, and not to contravene any social, moral or legal requirement. Surely it was not against public policy for the said Magdaline Adamson to make homestead entry July 17, 1879, and swear that it was for purposes of settlement and cultivation, and for her own benefit, etc., and then, a year after that date, relinquish her right in said land to the United States in the interest of another person, and abandon her former intention of settlement and cultivation. Who is ‘injured? Certainly not the public. What code of morals is violated? None. What law is broken or trampled upon? None.

Counsel for respondents have evidently confounded a ‘ ‘final proof” with what is necessary to be done in obtaining land from the government under the provisions of Section 2 of said act of June 15, 1880. The two proceedings are very dissimilar in form and substance. Said Section 2 of said act of June 15, 1880, provides ‘ ‘that persons who have heretofore, under any of the homestead laws, entered lands properly subject to such entry, or persons to whom the right of those having so entered for homesteads may have been attempted to be transferred by bona fide instruments in writing, may entitle themselves to said lands by paying the government price therefor, and in no case less than one dollar and twenty-five cents per acre, and the amount heretofore paid the government upon said lands shall be taken as part payment of said price; provided, this shall in nowise interfere with the rights or claims of others who may have subsequently entered such lands under the homestead laws.” Under this section, one who, before the passage of the act, has entered lands under any of the homestead laws, may purchase the same from the government at the government price, and no affidavit of settlement, residence, or cultivation, or of non-alienation, as in case of “final proof, ” is required. It is simply a cash transaction, — a sale by the*government, and a purchase by the entry-man or his assignee, and is called a “cash entry.”

The said Magdaline Adamson had made a homestead entry upon said land prior to the passage of said act, and was entitled to avail herself of its provisions, and purchase said land from the government; and it was not illegal, nor was it against pub-lie policy, for her to take back the relinquishment, which had never been filed, and agree to convey (and to convey) the title to said land which she might acquire under said purchase, to said Fideler; nor was it against public policy for said Fideler and said Norton & Brown to enter into an agreement that the said Norton & Brown, as the agents of said Fideler, should negotiate with said Magdaline Adamson, arid procure her to purchase said land from the government, under said act of June 15, 1880, and convey it, after said purchase, to said Fideler or his wife. In other w )rds, the said parol agreement entered into by and between the said Peter Fideler and the said Norton & Brown was and is not void as against public policy, and the appellants cannot be deprived of or denied relief, and the respondents be protected in or excused for their fraud, on the plea of “void as against public policy” sought to be interposed by counsel.

The situation of the respondents, if the said contract or agreement, and the said acts of Magdaline Adamson, were void as beir g against public policy, does not demand consideration. It may, however, be said that in that case their title to the lands in controversy would be equally as tainted as the title of said Fideler thereto, of which, under the said plea of “void as against public policy,” they seek to deprive him. And the arm of equity is long, sinewy, and powerful, and its hand peculiarly flexible.

The three errors assigned are well taken, and the judgment of the district court is reversed.