McGregor v. Donelly

Thornton, J. In this case the evidence shows, and it is substantially found, that by an arrangement made between John McGregor,, plaintiff’s testator, and H. S. Soule, the former made an affidavit and application for the purchase from the State of certain swamp and overflowed lands, lying in the county of Humboldt, for the use and benefit of the latter. Soule was to pay the cost and expense attendant on the application to purchase, and such cost and expense were either paid by him, or by Ryan claiming under him. To state the facts more particularly, Soule paid the county surveyor all his fees, charges, and expenses for surveying, platting, and making the field notes of the land covered by the application. He paid the twenty per cent of the purchase price of the lands and the first year’s interest on the remainder of the price. At this stage in the proceeding to purchase, Soule substituted Ryan in his place, and Ryan after this paid whatever expense was necessary up to the procurement of the certificate of purchase. The application was made under the Act of April 27,1863 (see Stats. 1863, p. 591), [150]on the 20th of March, 1865, and the certificate of purchase was issued on the 19th of January, 1866. McGregor died testate on the 12th day of September, 1865. The certificate, after its issuance, got into the hands of Eyan, who delivered it to defendant, to whom, after the certificate was issued, Eyan sold and conveyed the land involved herein. The certificate was in possession of defendant when this action was brought.

The plaintiff the administratrix with the will annexed of John McGregor, brings this action, which is an action in equity, to compel the specific delivery by defendant of the certificate of purchase to her.

The action here is brought to recover the result or fruit of the arrangement or contract made between plaintiff’s testator and Soule. Eyan and defendant claim under this arrangement and are in privity with Soule. Eyan took Soule’s place, and defendant Donelly took the place of Eyan. It is contended on behalf of defendant that this contract was illegal in its inception, and, therefore, that plaintiff cannot recover the certificate which was issued upon it. We are of opinion that the contention of the respondent is sound.

The contract within the rule laid down in Churchill v. Anderson, 56 Cal. 56, which we approve, is violative of the statute by authority of which the purchase in this case was attempted to be made, and therefore void. In the case cited as in this, the proceeding to purchase was under the Act of 1863 above referred to. The case cited was in regard to an application to purchase lieu lands, and in that respect it differs from this; but the provisions of the Act of 1863, referred to in the opinion in Church-hill v. Anderson, on which the conclusion is there reached, apply alike to the swamp and overflowed lands involved herein.