Persons v. Persons , 113 Iowa 745 ( 1900 )

Waterman, J.

The contest is over a single item of the counterclaim which was disallowed by order of the trial court. This was a charge of $600, as the consideration of a sale by H. H. Persons to plaintiff of a timber claim, so called, in Dakota. The undisputed evidence shows that the claim was originally taken up by one E. J. Scott. H. H. Persons, it is argued, bought of Scott and sold to plaintiff. There is no evidence, however, that decedent ever procured any relinquishment to be filed by Scott, or ever went into possession. It is conceded that the claim has now passed into the hands of another. The only way Scott could dispose of his rights in the land was by filing a written relinquishment. Act Congress, May, 1880 (21 Statutes at Large, 140); Palmer v. March, 34 Minn. 127 (24 N. W. Pep. 374). H. H. Persons, then, never had the title to this claim nor possession thereof. If he had a contract with plaintiff by which the latter was to purchase, it was wholly without consideration. Counsel for appellant argue that the contract was for the purchase of the improvements on the land, and not for the land itself. This is not in accord with the evidence they introduced. Furthermore, there is no showing that there were any improvements on the land save a few acres of plowing, and it is difficult to see how this could have been transferred distinct from the land.- — -Aeeirmed.