28 Minn. 484 | Minn. | 1881
Prior to April 6, 1878, one Holm had a valid and subsisting entry, at the United States land-office at Worthington, of a certain quarter-section of land, under the timber-culture acts of congress. He had delivered his certificate of entry to the plaintiff, with his surrender written thereon; and on April 6, 1878, plaintiff, with his consent* filed the same in said land-office. Under the rules of the general land-office at Washington, the officers of the Worthington land-office were required to notify the plaintiff when the entry was cancelled. In this instance the entry was cancelled July 1, 1878. On June 13, 1878, defendants, Hanson and Johnson, entered into ah agreement with plaintiff, by the terms of which he was to procure a cancellation of Holm’s entry, and then enter the land under the timber-culture acts for the benefit of Hanson. In consideration of this agreement upon the part of plaintiff, defendants executed-' a nóte -for
Defendants insist, first, that upon the findings of fact, the note was without consideration. The state of facts out of which the note arose we take to have been in legal effect this: The plaintiff, having filed Holm’s certificate of entry; and his surrender, in the proper local land-office, was entitled, under regulations made.by the general land-office, in accordance with U. S. Rev. St. § 2478, to notice of the cancellation of the entry. The right to this notice gave the person filing the surrender an opportunity to secure a priority or preference as to a new filing upon the land, for himself or such person as he might direct. Before a new filing could take effect, it was necessary that the former entry should be cancelled. The plaintiff, being entitled to the notice mentioned, and to the consequent opportunity to secure a priority and preference, agreed, first, to procure the cancellation of Holm’s entry, his certificate having been surrendered, but his entry not cancelled. The court below has expressly found that, at the time of making the note and agreement, Hanson knew that Holm had “surrendered his certificate of entry * * * for eancéllation, on April 6, 1878.” This; although the defendants’ counsel think otherwise, cannot mean less than that the surrender had been filed in the local
Upon the facts found, we perceive no basis for defendants’ second position, viz., that the plaintiff’s agreement was illegal. So far as we discern, it was not forbidden by any provision of law, either expressly or by implication, or by any consideration of public policy. We have looked at the cases cited by appellants, but found nothing there to impeach the agreement.
Defendants’ third and last point is that the judgment cannot be sustained “under the pleadings.” This has special reference to the allegation in plaintiff’s reply. As there is no settled case or bill of exceptions presented, the evidence and the proceedings upon the trial are not before us. Hence, we are in no position to inquire whether, in the respects in which the findings vary from the allegation of the plaintiff’s pleadings, there was error or not.
Judgment affirmed.