| Iowa | Jul 15, 1840
By the Court.
This was an action on a promissory note. The error alleged is that the court refused to instruct the jury that if they believed that the note in controversy was given prior to October 1836 in consideration of a .valuable improvement on the public lands of the United States, that such improvement is not a good consideration for said note. The whole question is as to whether the sale of an improvement on the public lands does independent of statute constitute a legal consideration.
The consideration for a promissory note is always deemed sufficient whenever in consequence of the contract the maker has derived a benefit or the payee suffered detriment. The case of a purchaser of lands belonging to the United States who executes a promissory note for improvements previously made thereon, is in neither of these predicaments.' The title to the improvements would have vested in the purchaser previous to the execution of the note. No-benefit would accrue to him, or injury to the payee, in consequence of the contract for the improvements. The cases cited from the reports of Indiana and Illinois are of this character, and are clearly correct.
But the case at bar is different from these. The purchaser of the improvements was not previously the owner of the freehold, and consequently was not, as in those cases, purchasing his own property. If he acquired any thing by the purchase, there was a sufficient consideration.
The owner of the freehold is also the owner of all improvements made thereon. As against the United States therefore the seller in this case had no rights which he could enforce. It does not follow, however, that he had no valuable transferable interest. The physician or the school-master who sells out what is termed his good will, sells nothing to which he has an absolute right. The purchaser in that case cannot compel the patrons of his predecessor to employ him. Still the probabilities are jn his favor. By making the purchase and removing the former incumbent out of the way, his chances of success are increased — to what extent he must be the judge. For the estimated value of his new acquisition he executed his promissory note. It can doubtless be collected. The transfer of an absolute property is not therefore necessary to constitute a valuable consideration. The acquisition of a probable and customary advantage is sufficient for this purpose.
We think such was the case in regard to the sale of improvements on public lands. These constituted our only titles at the date of the note on which this suit was brought. These titles secured to the possessor the undisturbed possession of the land until the fee simple was acquired from the United States. This has been one of our general customs, coeval with our political existence,.
As to tlje illegality of the consideration contended for by the plaintiff in error, the state of the pleadings does not seem to be such as to let in this defence were it valid. The ease of Hill vs. Smith however, decided at this term of the court, settles that question, so far as the decision of this court can go, in favor of the legality of the consideration. We entertain no doubts of the correctness of that decision.
The judgment of the court below will therefore be affirmed.