
    Daniel McTaggart v. T. M. Harrison and others.
    
    July Term, 1873.
    1. Town-Sites: Entry of: Duty of Probate Judge. Whenever any public land of the United States has been settled upon and-occupied as a town-site, and the town is not incorporated, it is the duty of the probate judge, upon being furnished with the entrance-money, to enter such land for the benefit of the occupants of such town-site, according to their respective interests.
    
      
      2. -: Void Contracts. And any contract made by one of the occupants of said town-site with a third person that the probate judge shall not so enter said land is illegal and void.
    3. -: Consideration: Illegal Contract. And an agreement on the part of said third person in consideration of said illegal contract, that he will enter said land and then deed a portion thereof (to-wit, that portion occupied by said occupant) to said occupant, being founded on an illegal consideration, is also illegal and void.
    •4. -: Equity Will Not Aid. And therefore where such an illegal contract is made, and the probate judge does not enter said land, but said third person does, and then refuses to further fulfill his contract, a court of equity will not specifically enforce the performance of said contract as against said third person and in favor of said occupant. [Brake v. Ballow, 19 Kan, 401.J
    Error from Montgomery district court.
    Action by McTaggart against Harrison and wife, to compel the ■specific performance of a contract to convey certain real estate. The petition alleges that on the twentieth of June, 1871, the N. E. ^ of the N. E. £ of sec. 14, township 33 south, range 16 east, in Montgomery county, was public lands of the United States; that previous to that time it had been and then was settled upon and occupied as a town-site, the town of Liberty being situate on said land; that plaintiff was one of the occupants thereon; that he had a frame, dwelling-house on said land, in said town of Liberty where he resided with his family; that said town-site was subject to entry by the probate judge of said county; that plaintiff on said twentieth off June furnished the necessary entry-money to said probate judge, and requested him to enter said lands as authorized and required by the laws of the United States and this state; that said judge made. application to enter said town-site, and *was informed that defendant Thomas Harrison, who was also an occupant on said land, and an inhabitant of said town of Liberty, had filed his declaratory statement as a settler, and claimed the right to enter said land as a pre-emptor; that the probate judge caused notice of contest to-be duly issued and served on Harrison, etc. And the petition further states — “That while said contest was yet pending in said land-office the said Harrison entered into a parol agreement with this plaintiff as follows: that if this plaintiff would have the probate judge withdraw from said land-office his said application to enter and purchase the tract of land hereinbefore described, and would have the said contest thereon pending by said probate judge wholly and entirely abandoned, so that said Harrison could and would be permitted to make the entry and purchase of the said land, then and in that event, the said Harrison would make the entry and purchase of said land, and would convey to this plaintiff by a good and sufficient deed of warranty the following described piece and parcel of land, being the same piece of land upon which plaintiff had his dwelling-house and improvements, and upon which said plaintiff has had a continuous-residence with his family from said twentieth day of June, 1871, to-the present time, to-wit, [describes eight acres, alleging that the boundaries and place of commencement were given by defendant Harrison;] and plaintiff further avers that, relying upon the aforesaid promises-. of said Harrison, plaintiff had the said probate judge withdraw from said land-office his said application to purchase as aforesaid, and had said judge wholly abandon the said contest then pending between said Harrison and said probate judge, acting as aforesaid; that said Harrison then made his entry and purchase of said land, as by the terms-of said agreement he was to do, but that he afterwards refused and still refuses to convey to plaintiff the tract of land he so agreed to convey, although often by plaintiff requested so to do.”
    To said petition Harrison demurred, on the ground that the facts-stated therein did not constitute a cause of action. The district court, at the August term, 1872, sustained the demurrer, andgave judgment, for the defendants.
    
      *J. D. McCue, for plaintiff in error.
    The land in controversy was not subject to entry under the- , pre-emption laws, and hence the restrictions contained in the preemption laws are not applicable to the ease at bar. The land was subject to sale under section 12 of the act of congress of July 15, 1870, and this does not restrict the right of alienation. But contracts-similar to the one at bar have been held valid under the pre-emption law's. Snow v. Flannery, 10 Iowa, 318; Kay v. Watson, 17 Ohio, 27. The case is not within the statute of frauds. The rule is that where there has been such part performance of a parol contract upon the part of one of the parties thereto that it would operate as a fraud to allow the other party to repudiate it, such case will not be held as within the statute. Edwards v. Fry, 9 Kan. *417; Fisher v. Moolick, 13 Wis. 321; Daniels v. Lewis, 16 Wis. 140; Paine v. Wilcox, Id. 202.
    There is' a sufficient consideration for the contract. The giving up of a suit, or any equivalent proceedings to try a question of which the legal result is doubtful, is a good consideration for a promise to pay money, (1 Pars. Cont. 439;) and it wras held sufficient in a proceeding in equity to compel the specific performance of a parol contract to convey land. Daniels v. Lewis, Paine v. Wilcox, supra.
    
    The contract was mutual. The undertaking was not impossible of performance. The plaintiff having performed his part of the contract, the defendants should now be compelled to perform their part. Waterman v. Dutton, 6 Wis. 265.
    The rights of others may have been affected by this compromise, but the defendants should not be permitted to avail themselves of this fact in order to avoid their contract. If others have been affected, they do not complain. The defendants cannot avail themselves of an injury which another may have suffered, when the injured party does not complain. Fackler v. Ford, 24 How. 322; Boot v. Shields,. Woolw. 354.
    Upon the abandonment of the contest before the register and receiver, Harrison was permitted to and did enter the land then in contest. The contest was abandoned at the instance *of plaintiff, he relying upon the contract set forth in the petition,, and a performance thereof by the defendants. The defendants availed themselves of the act of the plaintiff, and now refuse to convey the-land, which is nowin the actual possession of the plaintiff, and upon which he has valuable improvements. Defendants have gained by this transaction, and unless plaintiff can have the relief he now seeks he has lost a valuable right. Equity and good conscience demand that he be granted the relief prayed for in his petition.
    The petition does not disclose any attempt upon the part of plaintiff to have the probate judge violate any legal or moral duty. The-statute does not compel the probate judge to act until the funds necessary to perfect the entry are furnished him; nor does it make it obligatory upon the plaintiff to furnish this fund. Neither are compelled to assume any personal liability, and if the plaintiff has furnished any portion of this fund, it is his right to withdraw the same,. and abañdon all claim to enter and purchase the land whenever he may think proper. There was no moral or legal obligation on the part of plaintiff to furnish the fund, nor was there any moral or legal obligation violated upon the part of the probate judge in abandoning the contest when the funds were not supplied.
    
      Harrison & Willis, for defendants in error.
    The alleged contract is contrary to the laws of the United States in relation to the pre-emption of public lands, and is against public policy, and is therefore void. Section 13, Pre-emption Law 1841. The pre-emptor on. the Osage Diminished Eeserve is required to take the oath prescribed in this section, and enter his land under this law .as well as under the twelfth section of the act of congress of July 15, 1870, regarding the sale of said lands. The illegality of a contract is a bar to the enforcement of its specific performance. Fry, Spec Perf. 208; 2 Pars. Cont. 673.
    A contract to be specifically enforced must be mutual at the time it is entered into; that is, it must be such a contract *that either party might enforce it against the other. Fry, Spec. Perf. 284. In this case defendants could not compel plaintiff to procure the probate judge to withdraw his filings and abandon the entry of the town-site of Liberty. No court could enforce the specific performance of such an agreement; hence the contract ■as set forth was entirely without mutuality, and void.
    
      
       When probate judge to appoint commissioners for division of town-site. Allen v. Houston, 21 Kan. 194; see Emmert v. De Long, post, *67.
      Streets and alleys cannot be dedicated to public forever by act of legislature and survey of probate judge; and acceptance of his plat by the county commissioners will not divest the rights acquired under the original platting of town-sites into lots, streets, and alleys. Parcher v. Ashby, 1 Pac. Rep. 204. The town-site application and entry not being applicable to or in any manner affecting a prior mining claim located according to law, there is no obligation upon the owner of the mining claim to file an adverse claim to the entry of the town-site. Silver Bow M. & M. Co. v. Clarke, 5 Pac. Rep. 570. The land department is only authorized ■to issue patents to the probate judge for town-site purposes on the public lands, not lands previously granted and sold or reserved from sale; and the act authorizing the issue of such patents forbids the department to include in the patent any'mines, mining claim, or possession. Silver Bow M. & M. Co. v. Clarke, 5 Pac. Rep. 570; Town-site act, Taxes, Tax-deed, How., etc. Doster v. Sterling, 6 Pac. Rep. 556. Mandamus will not lie to compel a probate judge to execute deeds to tracts of land occupied and claimed under the town-site act of 1881 after a • decision by him adverse to the claimants. Territory v. Nowlin, 20 N. W. Rep. 430. Streets and lots, as intended to be laid out, are indicated by monuments which the proprietor of a town-site has placed at the corners, and by his conveyance of the streets to the public, etc. Holst v. Streitz, 20 N. W. Rep. 307. An occupant • of lands under the town-site act of May 23, 1844, has an interest in such land, within the meaning of the recording act, and a subsequent deed of his interest to .a bona fide purchaser, for a good consideration and without notice first recorded, will take precedence over a prior unrecorded conveyance of the same estate, Davis v. Murphy, 3 Minn. 119, (Gil. 69.) Land officers — -what acts sole judges of, Leech v. Rauch, 3 Minn. 448, (Gil. 332;) entry of town-site, Leech v. Rauch, 3 Minn. 448, (Gil. 332;) occupants — rights when fixed, Castner v. Gunther, 6 Minn. 119, (Gil. 63;) Castner v. Echard, 6 Minn. 149, (Gil. 92;) proofs — action by to enforce conveyance, Cathcart v. Peck, 11 Minn. 45, (Gil. 24;) occupant — who is, Carson v. Smith, 12 Minn. 546, (Gil. 458;) evidence of settlement and occupancy, occupancy essential, Castner v. Gunther, 6 Minn. 119, (Gil. 63;) Weisberger v. Tenny, 8 Minn. 456, (Gil. 405;) execution of trust, Castner v. Gunther, 6 Minn. 119, (Gil. 63;) abandonment, Weisberger v. Tenny, 8 Minn. 456, (Gil. 405;) entry by corporate authorities —contribution to expense, Cathcart v. Peck, 11 Minn. 45, (Gil. 24;) town-plat— dedication, City of Winona v. Huff, 11 Minn. 119, (Gil. 75;) land must be actually settled upon, Carson v. Smith, 12 Minn. 546, (Gil. 458;) streets — dedication, Village of Mankato v. Willard, 15 Minn. 13, (Gil. 1;) estoppel of trustee by deed, Morris v. Watson, 15 Minn. 212, (Gil. 165;) on unsurveyed lands, Wood v. Cullen, 13 Minn. 394, (Gil. 365;) title to streets, Harrington v. St. Paul & S. C. R. Co., 17 Minn. 215, (Gil. 188;) judge as trustee, Mankato v. Meagher, 17 Minn. 265, (Gil. 243;) minors heirs — failure to claim within sixty days, Coy v. Coy, 15 Minn. 119, (Gil. 90;) municipal corporation, as beneficiary, Blue Earth Co. v. St. Paul & S. C. R. Co., 28 Minn, 503; S. C. 11 N. W. Rep. 73.
    
   Valentine, J.

This was a controversy about a portion of the town-site of the town of Liberty, Montgomery county. Under the laws of' the United States and of this state, whenever any public land of the United States has been settled upon and occupied as a town-site, and the town is not incorporated, it is the duty of the probate judge, upon being furnished with the entrance money, to enter such land for the benefit of the occupants of such town-site, according to their respective interests. 14 U. S. St. at Large, 541; Gen. St. Kan. 1073; Sherry v. Sampson, 11 Kan. *611; Winfield T. Co. v. Maris, 11 Kan. The laws of the United States make it lawful for the probate judge to so enter said land, and our own laws make it his duty to do so. And any contract made by one of the occupants of such town-site with a third person, that the probate judge shall not so enter said land, is illegal and void. If all the occupants of said town-site should unite in said contract with said third person, whether the contract would be void or not, we express no opinion. And an agreement on the part of said third person, in consideration of said illegal contract, that he will enter said land and then deed a portion thereof (to-wit, that portion occupied by said occupant) to said occupant, being founded on an illegal consideration, is also illegal and void. 1 Pars. Cont. (5th Ed.) 456-459, and cases there cited. Sedgw. St. & Const. Law, 84 et seq., and cases there cited. Dolson v. Hope, 7 Kan. *161, And therefore, where such an illegal contract is made, and the probate judge does not enter said land, but said third person does, and then said third person refuses to *further fulfill his contract, a court of equity will not specifically enforce the performance of said contract, as against said third person and in favor of said occupant.

The judgment of the court below is affirmed.

(All the justices concurring.)  