| Mo. | Jul 15, 1859
delivered the opinion of the court.
The instruction given by the court, which caused the plaintiff in this case to take a nonsuit, does not disclose the grounds upon which it proceeded. Whether it was based upon a construction of the statute of frauds, or upon the act of Congress under which the land was entered, does not appear.
The statute of frauds does not embrace resulting or im
There is nothing in the bill of exceptions to show under what act of Congress the .land was entered. It may be conjectured that the graduation law of 1851 was the act under which the entry was made, and it is possible that the restrictions of that law occasioned the instruction which the court gave, though this is mere conjecture, for there is nothing in the record or in the brief filed by the counsel to throw any light upon the subject. We do not perceive any thing in the agreement between the plaintiff and defendant which violates the spirit of the act of Congress. Whether the defendant could with propriety take the oath required by that act is a matter not involved in the present controversy. The land was entered; it adjoined both plaintiff and defendant, and under the act either could have entered the entire tract. The agreement was to contribute equal portions of the purchase money and to divide the land, each retaining the half adjoining his farm. There was nothing in such an arrangement calculated to defraud the government or to evade any restriction in the graduation act. It was equitable and just to both parties and did no injury to the government. Whether such an entry could be made consistently with a literal construction of the provision of the act of Congress is a matter, as we have said, which concerned alone the defendant’s conscience and the government; though it is plain that, .so far as the government was concerned, her interests could not be affected by the agreed division of the land between the two, either of whom might, by a literal compliance with the law, have entered it all.
The instruction of the circuit court was merely a general one, that the plaintiff was not entitled to any relief. No proposition of law was decided, and it is merely a matter of conjecture as to what was the view entertained by the court. Under these circumstances, we shall reverse the judgment and remand the case.