Duncan v. Hall , 9 Ala. 128 ( 1846 )

COLLIER, C. J.

A mere settler upon the public lands, even if he makes improvements thereon, is not entitled to retain the possession against a purchaser from the government. But as he entered and improved the land for his own benefit without an assurance, either express or implied, that his labor and expenditure of money, if any, would be compensated, he is under a moral obligation to yield the possession to the rightful proprietor, whenever required. And as he is not permitted to dilapidate or remove buildings, or otherwise lessen the value of the land, he must give it up in the condition in which it was, when appropriated by the individual purchaser.

There is no moral obligation upon a purchaser, under such circumstancas, to pay the settler for his improvements. They were made, not at the solicitation of the former, or under an intimation that-he would remunerate the settler ; but as we must infer from the record, at the suggestion of the latter, and solely with a view to his own benefit. This being the case, there is no consideration founded either in legal or moral duty, which will sustain* an express promise to pay.

Shaw v. Boyd, 1 Stew. & P. Rep. 83, is a case strikingly analagous to the present. It was there held that a promise by the purchaser of a part of the public land, to pay for improvements made thereon previous to his purchase, though ‘beneficial to him, would not support an action at the suit of the promisee. The court placed its opinion upon the ground that the consideration was past, that the improvements were not made at the purchaser’s request, and consequently the promise was gratuitous.

We can conceive of no difference in principle between the case of a verbal promise, and an undertaking to pay by promissory note, or specialty ; for even in the latter case, the consideration may be inquired into, under the authority of the statute.

The law was correctly ruled by the Circuit Court — its judgment is consequently affirmed.