151 Wis. 95 | Wis. | 1912
The plaintiff sued to recover the sum of $300, which he alleged the defendant owed him on an oral contract. Plaintiff claimed that the defendant desired to have one of
The appellant assigns four errors: (1) the alleged contract was void because contrary to public policy; (2) there was no sufficient consideration to support the contract; (3) the contract was void under the statute of frauds; and (4) the court should have submitted certain questions to the jury propounded by the defendant.
1. On the first point it is urged that a homesteader cannot sell his homestead before final proofs are made and a receiver’s receipt is issued, and that in the event of a relinquishment the improvements belong to the United States, and that the contract was one that either contemplated the sale of an interest in the land or of the improvements made thereon and that it is against the policy of the law to sanction such an agreement.
While there was some loose talk between the parties about selling the homestead and selling the relinquishment, the evidence was ample to warrant the jury in finding that what the plaintiff agreed to do was to relinquish his homestead entry to the United States and surrender up the possession thereof and the improvements thereon. This would enable the defend
Obviously the plaintiff did not attempt to sell or convey the homestead itself. He had a perfect right to relinquish his homestead entry. Act of Congress of May 14, 1880 (21 U. S. Stats, at Large, 140, ch. 89, 6 Fed. Ann. Stats. 300); Love v. Flahive, 205 U. S. 195, 202, 27 Sup. Ct. 486. Our attention has not been called to any case holding that such an agreement as the one under consideration is in contravention of public policy. There are a number of cases which hold such a sale to be valid and which also recognize the right of the homesteader to sell certain hinds of improvements. Lindersmith v. Schwiso, 17 Minn. 26; Paxton C. Co. v. First Nat. Bank, 21 Neb. 621, 33 N. W. 271; and Tarrance v. Hatfield, 71 Ala. 234. Moore v. McIntosh, 6 Kan. 39; Hooker v. McIntosh, 76 Miss. 693; and Coleman v. Allen, 5 Mo. App. 127 (affirmed 75 Mo. 332), so hold. Under these cases we hold the contract here made was valid.
2. It is further urged that there was no consideration for the promise to pay because the testimony showed that it was not made until June 28, 1909, whereas the relinquishment was filed in the land office on June 16th, so that plaintiff had nothing to give in return for the promise when it was made.
Plaintiff did testify that according to his recollection the
3. It is urged that the contract was void under see. 2304, Stats. (1898), which provides that every contract for the sale of lands or of any interest therein shall be void unless the contract or some note or memorandum thereof expressing the consideration be in writing. It is sufficient to say in answer to this contention that the contract did not contemplate the sale of any land or of any interest therein.
It is further said that the contract was void under subd. 2 of sec. 23 0Y, Stats. (1898), because the promise was not in wilting and was one to answer for the debt, default, or miscarriage of another. The jury found that the debt was that of the defendant. Such finding is suppoi’ted by the evidence.
4. Complaint is made because of the failure of the court to submit certain questions to the jury as requested by the defendant. The verdict as submitted sufficiently covered the issues in the case.
By the Court. — Judgment affirmed.