HAFEMANN V. GROSS, 199 U. S. 342 (1905)

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U.S. Supreme Court

Hafemann v. Gross, 199 U.S. 342 (1905)

Hafemann v. Gross

No. 64

Argued November 9, 1905

Decided November 27, 1905

199 U.S. 342


A preemptor made an agreement with a party advancing money to pay one-fourth of the expenses of making final proof to repay such party a certain portion of the proceeds of sale provided that, after obtaining title, he could find a purchaser and sell the land at its proper value.

Held that there was no mortgage, deed of trust, or agreement for specific lien, but that the agreement was only a promise to pay in case of sale, and could not be enforced against the land, and that it therefore was not void under § 2262, Rev.Stat.

By the admissions in the pleadings in this case, on December 1, 1890, the defendants in error, together with one Edmund F. Gross, as parties of the first part, entered into a contract with the plaintiff in error which stipulated:

"That for and in consideration of the covenants hereinafter mentioned, the parties of the first part agree to pay one-fourth of all expenses accruing to the party of the second part in making final proof to S.W. 1/4 of the N.W. 1/4, the N. 1/2 of the S.W. 1/4, and the S.W. 1/4 of the S.W. 1/4 of sec. 14, all in township 58, north of range 19 west, in St. Louis County, Minnesota, and receiving title thereto, and the party of the second part agrees and binds himself to pay to the parties of the first part $100 in cash upon the delivery of these presents for locating him on said land, and he further agrees to give the parties of the first part one-fourth part of the price and proceeds that may hereafter be obtained for the sale of said land after he has obtained title thereto from the United States, deducting the one-fourth expense as above provided, and can find a purchaser for and sell the same at its proper value."

The parties of the first part fully complied with all the stipulations of this contract. The plaintiff in error, who, at the

Page 199 U. S. 343

time of the contract, was proceeding under the preemption law, made his final proofs, and on December 19, 1891, received a patent. On October 18, 1895, he sold the pine timber on the land and paid to the parties of the first part one-fourth of the amount received by him therefor. Edmund F. Gross subsequently assigned to Albert F. Gross, one of the defendants in error, all of his right, title, and interest in the contract. On July 17, 1902, the plaintiff in error sold and conveyed the land to the Onondaga Iron Company. This action was brought in the District Court of the County of St. Louis, Minnesota, to recover one-fourth part of the moneys received by him on said sale. Judgment was entered in the district court in favor of the plaintiffs, 91 Minn. 1, 92 Minn. 367, which was affirmed by the Supreme Court of Minnesota, and thereupon this writ of error was sued out.

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