The Globe-republican., 1889-11-20
IMPORTANT DECISION.
Judge Botkin's Ruling in the Case Of
WilsOn.TOms Investment Com.
pany vs.. James Hillyer.
Findings Of the Court.

pany vs.. James Hillyer.
! Findings Of she Court
Springfield (Kas.) Republican.
The court finds from the evidence that
the contract sued on was made and en-
tered into on the 22d day of October
1887, at which time the land described in
the petition was part of the public do
main and was claimed by the defendant
under the presumption laws of the
United States.
That the final proof on said land un-
der the presumption law, was made by
the defendant on Oct. %, 1887, six day:
after the contract was entered into.
That plaintiff advanced to the defend
ant at his request. under the con-
tract, the sum of sl91.9O to pay the gov
eminent for the said land.
The plaintiff further paid the defend
ant the sum of $1,000 under the con-
tract. making total of s2Ol.9O which
the plaintiff advanced to the defendant
or for him at his request.
That the defendant has failed to COM
ply with his agreement to execute and
deliver to plaintiff his bond, note and
mortgage, as he agreed he would In con-
tract of Oct. ~, 1887.
That prior to the commencement OF
this action, plaintiff had demanded of
defendant performance of defendants
part of the contract and that at same
time plaintiff offered to perform his part
of the contract.
That of the money advanced by plain
tiff $19l. 80 secured defendant title to
the land above mentioned.
FINDINGS OF LAW:
Plaintiff complains that the law is
powerless to afford it adequate relief and
appeals to equity to stretch forth its
helping hand and assist it in the pro-
curement of its rights under the con-
tracts set up in plaintiffs petition. If
there was ever case where equity
should respond to the call for help it is
certainly in case of this kind, provid-
ing this case be one where equity can
interfere; the defendant has secured the
title to quarter section of government
land by the aid which plaintiff extended
him to pay the government price of the
land. Plaintiff paid out its money for
the defendant under the contract solemn
and binding in conscious if not in law,
to procure defendant a home. Is that
contract binding in law? If so equity
will enforce it. If not, equity must leave
the parties where it finds them.
In the case of the St. Peters Land Co.
against Robt. Bunker 5th Min. page 200
and POI, there was an agreement to con-
vey portion of his presumption claim to
the plaintiff after final proof and on that
agreement plaintiff advanced to defend
ant the sum of $4,000. The defendant
refused to perform; the suit was brought
to recover back the money. The con-
tract was made before final proof and
the supreme court of Mimi. through
Judge Atwater says: "a contract made
before and in view of, and for the pur-
pose of making presumption, to con-
vey the land pre-empted, can only be
enforced by the commission of perjury,
a fact well known to the parties at the
time of making the contract. The con-
tract upon the face of it bears the evil
dence of moral turpitude and the law can
aid neither party either in enforcing it
or recovering back what has been paid
under it. If the plaintiff has suffered
from gross breach of good faith on the
part of the defendant he at least had no.
tice of what he might expect at his hands
from his readiness to violate the law and
while good conscience can in no means
tolerate the conduct of the defendant it
cannot sympathize with the plaintiff in
his misfortune since his conduct has been
instrumental in enabling the defendant
to perpetrate the wrong.
In the case of Mcclure against Smith
9th MINI. pages 256 to 259 the husband
had abandoned his wife, the defendant,
leaving her destitute and declaring he
would never return to live with her
again. The wife finding herself and
minor children without home and
without the means of support and know
ing of a tract of government land which
she could pre-empt if she had the means,
she entered into a contract with the
plaintiff by which plaintiff agreed to ad-
vance her the government price of the
land, $4,000 and money to the amount
of SIS which sum. defendant agreed to
secure by mortgage after final proof.
And after final proof defendant executed
and delivered to plaintiff her note and
mortgage upon the land which she had
pre-empted and proved up on to secure
said note and interest. Suit was brought
on said note and mortgage; the opinion