Lee v. Watson , 15 Mont. 228 ( 1895 )

Hunt, J.

— The plaintiff, Lee, pleads both ownership and possession. To support the former he sets forth his application to enter the land in question, under the timber culture laws of the United States, his occupancy thereof, and a receipt of the receiver of the United States land-office at Bozeman, Montana. Lee’s application was the only authorized filing upon the tract when this suit was instituted, and, although defendant applied to contest, leave was invariably denied him. All these facts made a prima faeie showing of ownership and right of possession in Lee. In Carner v. Chicago etc. Ry. Co., 45 N. W. Rep. 713, it was decided by the supreme court of Minnesota that rights under the Timber Culture Act are as high as under the Homestead Act, that a claimant under a timber culture entry “has the right to occupy and cultivate the land, and owns the annual crops which he harvests, whether of grass not sown by him or of grains,” and that, until a forfeiture to the United States occurred, he is the owner and has a right of redress for any injury to his property on the land. Plaintiff Lee, therefore, being (as against the defendant) the legal owner, his possession, whether actual 0.7 constructive, is presumed until the contrary appears, and “is sufficient as against mere trespassers, that is, as against those who do not show some right of possession.” (Gonzales v. Ross, 120 U. S. 605.)

The defendant appears to have been guilty of repeated trespasses, plowing, seeding, and cultivating the ground, always against the warnings and instructions of both plaintiffs. To harass them he not only attempted to contest plaintiff Lee’s entry, but he protracted a vain and hopeless litigation, well knowing he had no right whatever to possession of the ground. Plaintiffs repeatedly tried to plow and cultivate the claim, hut were always interfered with by defendant. These several acts show wanton trespass, and any occupation acquired on account of them was wrongful, and without foundation of right.

It also appears that the defendant was insolvent when the injunction was granted, that he was threatening to cut and remove the crop, and that, unless restrained, plaintiffs would suffer irreparable damage. Upon the authority of Sankey v. St. Mary’s Female Academy, 8 Mont. 265, we think a clear case was presented for the issuance of an injunction pendente lite.

The second ground in defendant’s motion to dissolve was that “no such undertaking as is required by law was given or filed by the plaintiffs before the issuing of said injunction.”

No specification of any defect in the undertaking itself is pointed out in the motion (as a better practice would seem to demand), but by brief of appellant’s counsel it is argued that because no affidavit of the sureties accompanied the undertaking it was invalid, and that therefore the injunction was illegally issued and should be dissolved.

Section 540 of the Code of Civil Procedure, which we assume applies to all bonds, injunction as well as others, provides that: “In all cases where an undertaking by the prb-visionsofthis act is required it shall be the duty of the person taking the same to require the sureties to accompany the same with an affidavit that they are each worth the sum specified in the undertaking, over and above their just debts, liabilities, and property exempt by law from execution.”

The conditions and nature of an injunction undertaking are prescribed by section 176 of the Code of Civil Procedure, and, when an undertaking has been given pursuant to said action, the liability of the sureties begins. The general statute (§ 540, above quoted) imposes a duty upon the person who takes such an un "ertaking to require the sureties to accompany the same with an affidavit of solvency. If, however, the duty is not performed, that is, if the affidavit is not secured, it is our opinion that the undertaking is not invalidated; it still holds, and the sureties are yet liable — at least until the lack of verification is brought to the attention of the court or judge and action taken. The affidavit is but the written declaration of the fact that the sureties who made the undertaking are responsible, confirmed by their own oaths. It is not a part, strictly speaking, of the undertaking; it does not affect its substance; it adds nothing to its terms or conditions. It should properly accompany it, but, not being a part thereof, it is not indispensable to the validity of the sureties’ promise. (Miller v. Pine M. Co. (Idaho), 32 Pac. Rep. 207; Hayne on New Trial and Appeal, § 213.)

The objects of requiring the sureties to verify are, not to impose financial liability, but to create safeguards in preventing straw bonds in judicial proceedings; to require sureties to swear to their abilities to meet promises they may make in behalf of others, to the end that, if they willfully swear falsely, they may be punished for perjury; to protect the person who may take the undertaking from unwarranted imposition, and, ultimately, by strict exactions upon the consciences of sureties, to better insure the person about to be enjoined against damage or injury in any unlawful interference with his property or rights.

Appellant did not ask the court to require the sureties in this case to make the affidavit referred to in the statute, and thus cure the omission to have required it when the undertaking was given; he elected to stand upon the exclusive ground of his motion that the undertaking was a nullity. But, for the reasons already given, we hold that the lack of the affidavit was at most a curable defect which did not destroy the undertaking or invalidate the order of injunction.

The order denying the motion to dissolve is affirmed.

Affirmed.

PEMBERTON, C. J., Concurs.