By the Court
The proceedings in the Court
They were instituted to determine the conflicting claims between the Appellant and the Lespondents, to a portion of what was known as “ 'Railley’s Addition ” to the Town of Hastings, in the County of Dakota, and the statements of the parties filed with the Judge of the Court below, in accordance with the 4th section of the Territorial Law above referred to, stand as the pleadings in the case.
The record in this Court is very full and presents this case fairly, and we shall embody in our opinion only a brief synopsis of the proceedings, referring to the record, for a better narration of facts.
Foster’s statement claims a deed from the Judge for the one undivided half part of lot numbered (2,) (3) and (8,) in section twenty-seven, Township numbered (115,) Lange number (17,) west of 5th Meridian, or such portions as lie within the addition above mentioned.
The Lespondents claim in their statement a deed for the whole of the above lots, in addition to some other tracts of land not included in this controversy.
It was conceded upon the hearing belowthat Alexis Bailley, one of the Lespondents, was the original settler and claimant, and the Appellant and other Lespondents claim to derive their title from him.
There is no dispute as to Bailley’s first claim and its legality. The questions presented are purely of fact, and involve the rights of the parties as they existed at the time of the entry of the land by the Judge.
H. G. Bailley, Le Due, and Sibley, sustain their claim by deed from Alexis Bailley, Sept. 1, A.D. 1854, in which deed an undivided three-quarters of the land is conveyed to them and they become tenants in common with the grantor of the whole tract.
Foster bases his claim upon a written acknowledgment by Alexis Bailley, given to him on the 18th day of August 1851, in which he is described as an equal partner with Bailley, in .this property in dispute.
Upon examining the writing, it is found that no consideration is expresssed upon its face, nor does it disclose upon what terms Foster and Bailley became equal partners in the claims mentioned therein, one of which is the property in dispute, and the Judge below very properly remarks, that the consideration upon which the partnership was acknowledged, and the terms upon which it was consented to, became a subject of enquiry. It was incumbent upon Foster, we think, to establish affirmatively, the causes which induced this partnership, and fully sustain, by weight of evidence, the considerations which he alleges were the inducements for the arrangement. The testimony of the two parties, Foster and Bailley, are at variance upon this point, but while no witness is introduced to corroborate the statement of Foster, we find that one witness, Truax, does in his testimony sustain the testimony of Bailley substantially, in regard to the nature of the transaction, and the motives which are alleged by Bailley to have led him to provide for Foster.
In the doubtful state of the testimony, we can come to no other conclusion than that arrived at by the learned Judge below, after a full review of the testimony.
Hid Foster carry out faithfully the arrangement which had been entered into between him and Alexis Bailley ? If not, was he prevented by Bailley’s acts from performing on his part the terms of the contract?
Ve have carfully examined all the testimony which would tend to elucidate the truth in regard to this part of the controversy, and have come to the conclusion that although there appeared an evident anxiety upon the part of Foster to secure his interest in this property, and for that purpose he did personally occupy the “ Eastern Claim,” as it is called, a sh oró
The charge preferred by Foster that Bailley was instrumental in bringing about the loss of the Eastern Claim, and conspiring to prevent his obtaining it, .we do not think is sustained by the testimony.
It is of such a serious character and involves to a certain extent his success in this suit, that he should have affirmatively and clearly established the fact. This has not been done, and it seems very strange that Parker, who of all others, ought to have been an important witness to throw light upon this point of the transaction, and whose testimony should have sustained' the charge of collusion or conspiracy to keep him out of the “ Eastern Claim,” was not introduced as a witness. He bore a conspicuous part in many of the important proceedings connected with these claims, and we are at a loss to account for his silence.
Foster was the only material witness to sustain his claim below, and he in noway seeks to introduce corroborative testimony. We cannot undertake to reverse the judgment upon this state of facts, and therefore must affirm the decision of the Court below.