#### Dohr, Respondent, vs. Wolfgang, imp., Appellant.

*October 10*

October *29, 1912.*

*Public lands: Homestead entry: Relinquishment: Improvements: Contracts: Validity: Public policy: Consideration: Statute of frauds: Sale of interest in land.*

1. A contract hy which a homesteader agrees, in consideration of a certain sum to he paid to him, to relinquish his homestead entry to the United States and surrender possession of the land, so that another may enter and acquire title under the homestead laws and incidentally obtain the benefit of improvements which have been made, is not contrary to public policy and is valid.

2. The promise to pay, in such a case, is based upon a sufficient consideration moving from the homesteader, whether, after he has relinquished his entry, the promisor secures the homestead or not.

3. Such a contract is not one for the sale of land or of any interest. therein, and is therefore not within the statute of frauds (sec. 2304, Stats. 1898). i

Appeal from a judgment of tire circuit court for Eau Claire county: James Wickham, Circuit Judge.

*Affirmed.*

Eor the appellant the cause was submitted upon the brief of *W. H. Frawley &■ T. F. Frawley.*

They cited, among other eases, 32 Cyc. 857, 1067; *Love v. Flahive,*205 U. S. 195, 27 Sup. Ct. 486; *Duncan v. Hall,*9 Ala. 128; *Welborne v. Spears,*32 Miss. 188; *Lipslcy v. Bergmann,*52 Wis. 256, 9 1ST. W. 158; *Kimball v. Adams,*52 Wis. 554, 9 1ST. W. 170; *Baringer v. Fvenson,*127 Wis. 36, 106 1ST. W. 801; *Pacific L. S. Co. v. Gentry,*38 Oreg. 275, 61 Pac. 423; *Sauerhering v. Rueping,*137 Wis. 407, 413, 119 ET. w. 184.

Eor the respondent there was a brief by *Sturdevant & Farr,*and oral argument by *L. M. Sturdevant.*

Barnes, J.

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 *96his sons secure title to certain land which plaintiff entered as a homestead in July, 1902, under the homestead laws of the United States, and agreed to pay the plaintiff the above named sum if he would relinquish his right to such homestead so that defendant’s son might make the necessary .application to enter the land as a homestead; that plaintiff accepted such offer and did relinquish and surrender possession of the homestead and one of the defendant’s sons attempted at least to enter the land as a homestead. The attempted entry by defendant’s son was made immediately after the plaintiff filed his relinquishment at the land office. The defendant denied making the contract. The disputed issues of fact were all found in plaintiff’s favor by the jury on sufficient evidence, and defendant appeals from a judgment entered on the verdict.

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*97ant’s son to enter tbe land under tbe homestead laws and ao-qnire title thereto on compliance with such laws, and give him tbe benefit of all improvements made on tbe homestead by tbe plaintiff. There was a valid consideration for such a contract, whether defendant or his son secured the homestead or not. Consideration may consist of a benefit to the promisor or an injury to the promisee. *Messenger v. Miller,*2 Pin. 60; *Eycleshimer v. Van Antwerp,*13 Wis. 546; *Hewett v. Currier,*63 Wis. 386, 23 N. W. 884. By performing his part of the contract plaintiff surrendered up the possession of the homestead and the improvements he had placed thereon, as well as his inchoate right to eventually acquire title to the land by complying with the homestead laws.

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 *98contract was made on June 28th, and so did Attorney Bradford, who drew the relinquishment. We think it is quite obvious that the witnesses were mistaken as to the date on which the transaction took place. Plaintiff’s evidence is to the effect that they dickered about the. price and finally reached an agreement,, and that thereupon he executed a relinquishment and went to the land office at Wausau to file it, and that defendant’s son accompanied him for the purpose of making an entry as soon as the relinquishment was filed. The jury found that plaintiff filed his relinquishment in reliance on the defendant’s promise to pay the sum of $300, and the evidence sustains the finding.

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.