Spry v. Sleppy

Wright, J.

Not without much doubt upon the part of one member of the Court, we conclude that this judgment should be affirmed. Except- to the immediate parties in this case, the question involved, in view of the present condition and settlement of our State, is of but little practical importance. We, therefore, without entering at length into its discussion, shall state generally the grounds upon which we base the decision.

We find nothing in the cases cited by counsel from our earlier reports, justifying the conclusion that a party who has sold a “ claim ” right, made and held in good faith, between the time of marking out-and defining its boundaries and the making of what are styled “ improvements,” may not recover for the same. In other words, while the law and cases speak of “ improvements,” and while the cases uniformly hold that “improvements ” upon the public lands furnish a valid consideration for a promise, they do not-sustain the proposition that a “claim” held, and transferred, and afterwards enjoyed as this one was, would not have a like value in any contract made for its purchase. Ordinarily, we know that in the absence of fraud, if a party acquires anything by his purchase, or if, in consequence of the contract, the promisor has derived a benefit, or the payee suffered a detriment, there is a sufficient consideration. And, therefore, as it appears that plaintiff had marked or staked out his “ claim ” in good faith, and in like manner had the same recorded according to the custom of the neighborhood; that he surrendered the possession to defendant, who took and held the same, until he entered the land; we think there was, within the meaning of the law, work done thereon by plaintiff and benefits accruing to defendant, which were sufficient to sustain the promise. It does not appear to have been a mere barren claim, without right, but one made, held and recognized by the local law, a custom sanctioned by statute. Laws of 1848, p. 457. And as defendant obtained and enjoyed all that was sold him under a contract not, as far as we know, in contravention of any statute, we think he should pay for it.

Affirmed.