Bogk v. Gassert
Statement by Mr. Justice BROWN: This was an action at law instituted by Henry Gassert, Jacob Reding, and James H. Steele, as plaintiffs, against Gustavus Bogk, as defendant, upon a lease of certain premises in the city of Butte, and also certain mining claims in Siver Bow county, wherein plaintiffs prayed judgment against defendant for the restitution of the premises, and for damages for the detention thereof at the rate of $500 per month.

The facts of the case are substantially as follows:

Gustavus Bogk, the defendant below, was the owner of a lot of ground in Butte City, Mont., upon which stood a public house known as the 'Virginia Chop House.' He was also the owner of some mining claims, five in number, located in Summit valley, Silver Bow county, Mont. Having become involved in dept, and unable to hold the property, on May 19, 1885, he sold and conveyed by deed in fee, duly executed, an undivided half interest in the property to James H. Steele, one of the plaintiffs, for the sum of $7,500; and, upon the same day, by another similar deed, he soid and conveyed the other half interest to Gassert and Reding, the other plaintiffs, for a like sum. These two amounts were paid to Bogk, and disbursed under his direction. By a separate and independent instrument, in writing, of the same day, the plaintiffs, Gassert, Reding, and Steele, agreed to reconvey the property to Bogk, if, on or before the end of one year thereafter, he would pay to Steele the sum of $8,967.50, and to Gassert and Reding a like sum. This sum of $17,935, in the aggregate, was the purchase price of the property, $15,000, with interest compounded thereon monthly for one year. The agreement of reconveyance recited the previous sale of the property, but made no mention whatever of any loan of money.

Two days afterwards, namely, on May 21, 1885, Bogk took a lease of the property from Gassert, Reding, and Steele for the term of one year, at a nominal rent of $450, payable on or before December 1, 1885, with a privilege of working the mines for his own use and benefit. Bogk never offered to repurchase the property, or tendered to the plaintiffs the sum of $17,935, or any other sum.

Under this condition of things, the lease having expired, plaintiffs, demanded possession of the property, and, upon the refusal of Bogk to comply with the demand, brought action before a justice of the peace, under a statute of Montana providing for summary proceedings against tenants holding over. Upon a plea of title interposed by Bogk, the suit was transferred to the district court of the proper judicial district, in accordance with the requirements of the statute, and was there tried before a jury. Plaintiffs proved the deeds of conveyance, the agreement to reconvey, the lease by them to Bogk, the rental value of the property, and then rested. Notice to quit, and failure to surrender the premises, had been averred in the complaint, and, not being denied by the answer, under the provisions of the Code of Procedure in Montana, were taken as admitted. Thereupon counsel for defendant moved for a nonsuit upon the ground that the plaintiffs had not shown that they were ever entitled to the possession of the premises, or that the defendant had entered into possession under the lease, or that notice to quit, or demand for the surrender of the premises, had ever been given to defendant. The court overruled the motion for a nonsuit, and defendant excepted. The trial thereupon proceeded, and defendant introduced witnesses showing the value of the city property to be from $18,000 to $25,000, and the other property to be from $22,000 to $25,000, making in all the lowest estimate at $40,000, and the highest at $50,000; that the negotiations commenced for a loan; that the object was to raise money to pay off mortgages, judgments, liens, etc., upon the property; that plaintiffs never had possession of any of it; that interest was computed upon the amount advanced; that the lease was given to secure the representation of the mining property, and pay the taxes; and that the transaction was intended as a mortgage.

Plaintiffs thereupon introduced certain evidence in rebuttal, and the jury returned a verdict for the plaintiffs, awarding them restitution of the property, and $2,175 as rent of the premises from May 21, 1886. Upon this verdict judgment was entered, the case appealed to the supreme court of the territory, and the judgment affirmed. 19 Pac. Rep. 281. Defendant thereupon appealed to this court.

E. W. Toole and Wm. Wallace, Jr., for plaintiff in error.

[Argument of Counsel from pages 20-22 intentionally omitted]

M. F. Morris and W. W. Dixon, for defendants in error.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court. 

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