Decided 8 July, 1901.
On Rehearing.
Mr. Justice Mooredelivered the opinion of the court.
A rehearing of this cause having been had upon appellant’s petition therefor, we conclude, after a careful re-examination of the testimony, that the inference spoken of in the former opinion, so far as it relates to any agreement of the defendant to convey the Rinehart Springs Ranch to plaintiff .upon securing a title thereto, is not deducible therefrom. The testimony of Gilchrist, plaintiff’s superintendent, • that no agreement was ever entered into with Gentry, by the terms of which he was to prove up on the land and give the company the first chance to buy it, is corroborated by Gentry, who testifies that he never promised to deed the land to anybody; that Charles Jones, the plaintiff’s assistant superintendent, placed him in possession, telling him to stay on the place until it ivas surveyed, and then to file on it as a homestead. This latter statement is corroborated by E. Mefford, who testifies that Jones told him Gentry owned the place, and by Maurice Fitzgerald, who says that Jones told him Gentry was to file on the land when it should be surveyed. The defendant’s testimony in this particular would seem to be corroborated also by Gilchrist, who states that he instructed plaintiff’s employees to recognize Gentry’s authority, as be*292ing in charge of the premises, and by the circumstance that Gilchrist promised to pay him the sum of $200 in addition to his wages when the company should secure the title. P. Madison, C. C. Kilbourn, and Gilchrist, plaintiff’s employees, testify that Gentry agreed to hold the land for the company until it could prove up thereon, the latter witness saying: “We never dreamed that Gentry was going to be there five or six years”; and J. C. Foley, plaintiff’s witness, “that the company owned the improvements on that land, and they proposed to acquire title to it through somebody else.” We think the preponderance of the testimony shows that Gentry was the person selected by the plaintiff’s agents for this purpose, and while, perhaps, no express contract was ever entered into whereby it was stipulated that he would convey the land to the plaintiff when he should secure the title, it was understood that he would do so, and he was sent tO' the place to hold it for the company, whose agents reasonably expected him to .convey the land to it when his title should have been perfected. This conclusion seems to be borne out by the testimony of the defendant, who, in speaking of such expectation of plaintiff’s agents in sending him to the ranch to hold it for them, said, “I expect they thought they would take chances on it,” and is fairly inferable from the attempt made by Gilchrist to have him make a filing on the ranch under the acts of congress providing for the sale of desert lands in certain states and territories : 19 Stat. 377, c. 107; 26 Stat. 1096, c. 561.
The Rinehart Springs Ranch having been unsurveyed public lands of the United States when James Sullivan, the plaintiff’s predecessor, settled thereon, his claim thereto was that of a “squatter,” in speaking of which Mr. Justice Miner, in Rio Grande W. Ry. Co. v. Telluride Power Transmission Co.; — Utah, — (63 Pac. 995), says: “A homestead or squatter’s right is a personal right, and the possession under it must be personal:” The plaintiff, being a private corpora*293tion, was, by reason of its intangibility, incapable of taking personal possession of the premises, and in order to secure the title, under the ordinary acts of congress in relation thereto, the necessity of securing some one who' would do> so for it is apparent. It was believed that Gentry possessed such a determined disposition that he was capable of resisting all encroachments upon the land, and that his reputed honesty would not permit him to retain the title to the very valuable property intrusted toi his keeping. Gilchrist as a witness says Jones had no authority to give this ranch to Gentry, and it cannot be supposed that he intended to donate the improvements to him. By reason of Gentry’s bravery he was sent to the land in question to prevent trespassing thereon, and in consequence of his supposed probity he was instructed to file his homestead claim on it, under the very reasonable expectation that when he secured a title thereto' he would, in consideration of the wages received and of the further sum of $200 which had been promised, convey the land to the plaintiff. If an express agreement had been entered into whereby the defendant was to convey the premises to' the plaintiff after he had secured a title thereto, under the homestead laws of the United States, such contract could not have been enforced, after the entry was consummated, because it would have been for the commission of a fraud upon the general government, as being violative of Section 2290, Rev. Stat. U. S., which requires a homestead claimant to take an affidavit that the entry is made for his exclusive use and benefit, and not, either directly or indirectly, for the use or benefit of another: Clark v. Bayley, 5 Or. 343; Moore v. Moore, 130 Cal. 110 (80 Am. St. Rep. —, 62 Pac. 294). Public policy must necessarily be as much violated by the exercise of an unlawful intent, manifested by surrendering the possession of unsurveyed land, under the reasonable expectation thal the person to whom the possession is delivered will secure a title to the premises under the homestead laws of the United States, and convey the land to the beneficiary, as though, an *294express contract to that effect were entered into between the parties. That the plaintiff’s agents reasonably expected Gentry to make a homestead filing upon the land when it was surveyed, and to convey the premises to the plaintiff when he secured the title thereto, is clearly established, we think, from the testimony, and, though no defense on the ground of an infraction of public policy was interposed, it is the duty of the court to refuse to lend its aid whenever a transaction, in terms or by reasonable intendment, conclusively appears to be contra bonos mores. Mr. Chief Justice Ryan, in Wight v. Randskopf, 43 Wis. 344, in speaking of the obligation of a court in cases of such character, says: “If the objection be not made by the party charged, it is the duty of the court to make it on its own behalf. Courts owe it to public justice and to their own integrity to- refuse to become parties to- contracts essentially violating morality or public policy, by entertaining actions upon them. It is judicial duty always to turn a suitor upon such a contract out of court, whenever and however the character of the contract is made to appear.” The defendant having attempted to perform the very service for which he was employed, a court of equity, in view of the circumstances, will not become a party to the transaction by enjoining him therefrom. We are compelled, therefore, to adhere to the former opinion. Affirmed on Rehearing.