Setter v. Alvey , 15 Kan. 157 ( 1875 )

The opinion of the court was delivered by

Brewer, J.:

1. parties m equal fault,

2.No remedy for either party.

3 Town-sitc* touoneenotan oocupant.

This was an action of ejectment for half a town lot in Garnett. The facts are these: In October 1861 the town-site of Garnett was preempted by G. W. Ilei;, chairman of the board of trustees, for the use and benefit of the occupants, and patent issued June 1st 1863. On April 11th 1862, Iler conveyed the lot in controversy to the commissioners of Anderson county. This deed was not recorded until November 30th 1863. On April 14th 1863, Iler also conveyed the lot to J. M. Alvey, and this deed was recorded February 2d 1864. In 1869 J. M. Alvey conveyed to C. P. Alvey, the plaintiff below, now defendant in error. The same year the county conveyed to one Hedley, who conveyed to Setter, defendant below, now plaintiff in error. J. M. Alvey had no notice, actual or constructive, of the deed to the county at the time of his deed from Iler. It does not appear what he paid, if anything, for the deed, nor whether the deed to him (J. M. Alvey,) was made in disregard of the claims of C. P. Alvey, or in pursuance of his request. The lot was drawn at the regular drawing of lots by said C. P. Alvey, who was an actual occupant of the town-site, and a stockholder in the Garnett Town Company. It was drawn upon share 153. It was also drawn at the same time by the county of Anderson, being the fifty-sixth lot drawn. The county became interested in the town-site, under an agreement between it and all parties interested in the town-site of Garnett, that if the county-seat should be located there 400 lots in Garnett would be given to the county. It does not appear whether plaintiff was or was not ignorant of the deed of the county to this particular lot, though as an occupant he was a party to the original contract. Upon these facts the court rendered judgment in favor of the plaintiff, defendant in error. The lot was first drawn by the county, first deeded to the county. Why should this priority be set aside, and one holding under a subsequent drawing and subsequent deed be given the lot? It is insisted that the deed to the county was void, because the contract upon which it was based was against public policy. Concede, for the purposes the argument, that the contract was so, and therefore void, and'we do not think it follows that the deed can be avoided. The town of Garnett and the occupants were in fault equally with the county. And the rule is general, that the law will not in such cases, interfere in favor of either party. If the contract remains executory, the law will neither enforce it, nor award damages for its breach; if already executed, nothing paid or delivered can be recovered back. So here, no deed having passed, and the contract being void, as stated, the county could not have compelled the deed; and on the other hand, the contract having been executed, and the deed passed, neither the town corapany nor ¿he occupants can set it aside and recover the land. And what they cannot do, no one claiming under them can do. Again, it is claimed that the deed is void because of the provision in the act of congress of March 2d 1867, which declares, that “any act of the trustees not made in conformity to the regulations” alluded to in the section granting the right of entry, shall be void. (U. S. Revised Stat. 440, § 2391.) Iler was under the act a trustee for the occupants, and the county could not in the nature of things be an occupant. Therefore, a deed to the county was to one no^ an occupant, and not in conformity to the regulations referred to. It may properly be no^jeed here, that so far as the findings of the referee are concerned, nothing is shown as to the consideration or purpose of the deed. He simply finds that the county drew the lot and received the deed. All the information we have as to the contract is from the answer of the defendant, which alleges ,the making of the contract, and the execution of the deed in pursuance of it. Of course then, while the facts alleged in the answer may be used as against the defendant, they must all be taken together, and it is there alleged that the contract was made by the county with the town authorities who furnished the money to enter the town-site, and with the assent of the occupants, and all other persons interested in the town-site. With the answer out, we have simply the drawing and the deed; with it in, we have also a contract, assented to by the plaintiff, and all other parties interested. Nowhere does it appear for what purpose this lot was conveyed to the county, whether for use as a site for a court-house, jail, or other public building, or purely for purposes of speculation. Now, if a county may lawfully take a deed for a town lot from the authorities of a town for any purpose, and if the party in whose name a town-site is preempted may, with the assent of all the occupants, and parties interested, lawfully deed a lot to the county, then this deed must, as against this objection, be held good, for there is nothing to show the purpose, and it cannot be presumed to have been illegal; and nothing to show a want of assent, and it cannot be presumed that a trustee has violated his trust. Indeed, the plaintiff’s title rests upon á deed made to one not an occupant, and without any apparent right to- a deed.

4. oh. 30,513, Laws of 1869, construed.

Plaintiff in error devotes a considerable portion of his brief to show that § 13 of ch. 30, Laws of 1859, does not avail the title of defendant in error. Defendant in error yeems in his brief to concede the point; at least, he makes no claim under that section. Nor indeed could he make any successful claim, for the only persons entitled to any rights under it are, “subsequent purchasers for* a valuable consideration, without notice.” And there is nothing to show that plaintiff’s grantor, J. M. Alvey, ever paid any thing for the lot, or that plaintiff was not fully cognizant all the time of the county’s claim and deed.

The judgment of the district court must be reversed; and there being no exception to the referee’s findings of fact, the case will be remanded with instructions to enter judgment for plaintiff in error, defendant below, for his costs.

All the Justices concurring.