| Neb. | Jul 15, 1878
The evidence shows that the consideration for giving the promissory note in question, was the saie and surrender by Daniel A. Bishop of his unperfected homestead claim upon the public lands, together with the improvements thereon, consisting of a small dwelling house, or shanty, about twenty-five acres of breaking, and a lot of forest trees.
Previous to the purchase, McWilliams went upon the land, examined it, as he himself swears, and knew perfectly well the condition of the property he was purchasing. Indeed, it is not even alleged that any deception was practiced either by Bishop, or by his brother who negotiated the sale. The trade seems to have been a fair one as to all concerned in it. McWilliams got just what he stipulated to receive, and we see no reason why he should not be compelled to do as he agreed.
It is true that, as to the land itself, the legal title to which was still in the United States, the contract could confer no right whatever upon McWilliams which the law would respect. Dawson v. Merrille, 3 Neb., 458" court="Neb." date_filed="1873-01-15" href="https://app.midpage.ai/document/dawson-v-merrille-6641938?utm_source=webapp" opinion_id="6641938">3 Neb., 458. But the improvements made on the land were subjects of legitimate bargain and sale, being declared such by an express enactment of our legislature, chapter 30, Gen. Statutes, 409, the first section of which provides that: “All contracts, promises, assumpsits, or undertakings, either written or verbal, which shall be made hereafter in' good faith and without fraud, collusion, or circumvention, for sale, purchase, or payment of improvements
Holding as we do that these improvements, either alone, or together with the abandonment of the land to McWilliams, were a .good and valid consideration for the promissory note, there only remains for consideration the single question of the right of the defendant in error to bring action upon it, on which some reliance seems to be placed by counsel as ground for reversal. But on this point we see no difficulty. That Bridges was the lawful bearer of the note from the payee named therein was not denied by the answer; it was merely alleged “ that he gave to said Bishop no value or consideration whatever for the assigning and delivery of said note to him * * * and that he took the assignment and delivery for the express purpose of bringing suit upon the same in his own name with the understanding and agreement * * * that if he recovers upon said note and collects the same, then in that case he is to pay something to.said Bishop for said note; but if he does not recover, then he is to pay nothing to said Bishop for the same.”
Had the principal defense, the want of a valid consideration for the note, been sustained, these facts would have become important as showing that Bridges was not entitled to the protection which the law affords to an. innocent holder for value of negotiable .paper. But that defense failing, they become wholly immaterial, for the reason that, under the facts of this Case, the consideration for which Bishop saw fit to dispose of his'interest in the note was a matter in which the makers could have no possible interest, and entirely within his own discretion.
Judgment affirmed.