
    Gully M. Brown vs. Philip Poindexter.
    A note given to a person occupying public land, with the purpose of becoming a preemptor, under the act of congress of June 22,1838, for the purchase of the land from such occupier when his right of preemption is perfected — to perfect which, the occupier agrees to occupy the land the prescribed time, and take the required steps, and then convey the title to the purchaser — is given for an illegal consideration, is in violation of the preemption act referred to, and is void.
    And if the maker of the note suffer a judgment at law to be rendered against him on the note, he cannot afterwards obtain relief against the judgment, in equity, on the ground that the intended preemptor, by his negligence, which occurred after the judgment at law, lost his preemption; the note being void, the defence at law was good, whether the other party carried out his contract, or not.
    
      On appeal from the vice-chancery court at Holly Springs; Hon. Henry Dickinson, vice-chancellor.
    Gully M. Brown filed his bill, to enjoin a judgment at law obtained against him by Philip Poindexter. He alleges that he and Poindexter entered into a written agreement (now lost) for the purchase by him, of Poindexter, of the latter’s preemption claim to certain public lands; that he gave Poindexter one hundred dollars in cash, and executed his note for another hundred, Poindexter agreeing to “ hold possession of the land, by himself or another, so as to secure a preemption right thereto, under the act of congress.” Poindexter had sued him, and recovered a judgment on the note; since which, by his negligence, Poindexter had forfeited and lost his right to a preemption, and a third party had obtained a certificate from the Grenada land office for the land, by which his claim was wholly defeated
    The bill prayed for an injunction, which was granted; but afterwards, on motion, dissolved by the vice-chancellor, and the complainant appealed.
    Watson, for plaintiff in error.
    The complainant could not have defended himself at law, from the fact that his defence has arisen subsequently to the judgment. The rule is, that relief will be granted, where the defence could not at the time, or under the circumstances, be made available at law, without any laches of the party. 2 Sto. Eq. sec. 894; 6 Paige, 622; 7 Cranch, 332; 4 S. & M. 358, 424.
    
      Chalmers, for defendant,
    contended,
    1. That the covenant set out in the bill, was in violation of the act of congress, and void; which provides, that all contracts for the sale or transfer of pr< emption rights, before the issuance of the certificate, shall be utterly void, and that no action thereon shall be maintained. See act of congress, passed 22d June, 1838; and Instruct, of Com. of Gen. Land Office, p. 1024, Pub. Lands; and also, Merrell v. Legrand, 1 How. Miss. Rep. 150; and Wooten v. Miller, 7 S. & M. 380.
    
      2. Defendant contends, that, as there was a total failure of consideration, complainant should have set up his defence at law; and having failed to do so, without excuse, and his remedy at law being full and unembarrassed, he cannot come into a court of equity for relief. See Green v. Robinson, 5 How. Miss. Rep. 80; Cowen v. Boyce, lb. 769.
   Mr. Justice Thachek.

delivered the opinion of the court.

Brown contracted with Poindexter for the purchase of his preemption right to a tract of land. Poindexter, on his part, agreed to sell the right, to keep possession of the land for the purpose of procuring the certificates, and then to convey title to Brown. In pursuance of the contract, Brown gave Poindexter his two promissory notes for $ 100 each, one of which'he paid, and upon the other of which Poindexter recovered a judgment against him. By the negligence of Poindexter, his right of preemption became lost, and certificates for the land were procured by another. The bill of complainant, filed in the vice-chancery court, sets forth the foregoing facts, and alleges, that the neglect of Poindexter to comply with his part of the contract, took place .-since the rendition of the judgment upon the promissory note.

Upon motion, the vice-chancellor dissolved the injunction upon .the judgment at law.

The contract, as described by the complainant, was illegal. The act of congress, to grant preemption rights to settlers on the publie lands, passed June 22, 1838, provides that “before any person, claiming the benefit of that law shall have a patent for the land, he shall make oath that he entered upon the land which he claims; in his own right, and exclusively for his own use and benefit, and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatever, by which the title which he might acquire from the government of the United States should enure to the use or benefit of any one except himself, or to convey or transfer the said land, or the title which he may acquire to the same, to any .other person or persons whatever, at any subsequent time, and any .grant or conveyance which any person may have made in pursuance of such agreement or contract shall be void, except in the hands of a purchaser in good faith, for a valuable consideration, without notice.” In consequence of this law, the contract was void, and could so have been shown in the trial at law. The negligence of Poindexter, charged, in the bill, not to have occurred until after the judgment, added nothing to the strength of the defence against the promissory note, which was full and ample at all times; moreover, and especially, a court of equity will not entertain a case based upon such grounds.

Decree dissolving the injunction, affirmed.  