76 Miss. 693 | Miss. | 1899
delivered the opinion of the court.
The arrangement between Newsom and Hooker whereby the former agreed with the latter to relinquish his claim to and abandon the land, and to cancel his entry at the land office, in order that the latter might enter the land and ultimately secure a patent therefor, was not illegal, and constituted a sufficient consideration for Hooker’s notes given to Newsom. It was simply the relinquishment of Newsom’s possessory right in the premises, with the improvements made thereon by him. The authorities on the subject are collated in the 19 Am. & Eng. Ene. L., 323, 32i and notes, and 332-331, with notes.
The case must, however, be reversed because of erroneous instructions. The first instruction given for the plaintiff confined the jury to a question of payment of the notes. That -was not really the defense offered. No one pretended that the notes had been paid. The question was, had there been nova-. tion of the original indebtedness. The second instruction given for the plaintiff and instruction given for the defendant, marked No. 3 in the transcript, are not harmonious.
Reversed.