
    Smith vs. Rankin.
    An agreement, in parol, to convey vacant and unappropriated land, the title to which is in the government, is a nude pact, and cannot he enforced by law.
    When a person has by possession and occupancy acquired a preference to enter lands by virtue of the laws of Tennessee, he has authority to transfer his right of entry, in exclusion of other citizens.
    The purchaser or assignee of an occupant, is clothed by the purchase or assignment, with the same right and preference to enter the lands, against other citizens, that belonged to the occupant.
    The right of an occupant acquired under the laws of Tennessee, is a good consideration for a promise.
    This cause came up on appeal from the circuit court of M’Nairy county. The record shows that the plaintiff in error, who was the plaintiff below, declared in assumpsit against the defendant, alleging in his declaration that the defendant, Rankin, in consideration that he, the plaintiff, would sell to Mm the right of possession and good will, .. . T , ., , r • » 0 11 which he, the plaintiff, had to a certain tract of vacant land on Huggin’s creek, in M’Nairy county, would do and perform for the plaintiff one hundred and fifty dollars worth of carpenter’s work, and that he, the plaintiff, did thereupon sell and deliver to said defendant his good will and right of possession to said vacant land, but that the defendant, when requested', refused to do sard work. The second count in the declaration alleges, that the- defendant promised the plaintiff, in consideration that he had sold to him all the right which he, the said plaintiff, had to the possession of said vacant land, which he bad purchased from William L. Wisdom, that he would do and perform one hundred and fifty dollars worth of carpenter’s work, when requested. But that, being requested, he refused,, &c. To this declaration the defendant pleaded non-as-sumpsit, upon which issue was taken. Upon the trial of the cause before the jury, the proof was, that William L. Wisdom had sold to the plaintiff Smith, his right or good will to a piece of land in M’Nairy county, which he, Wisdom, had purchased from one Cherry, who had lived upon it in a camp some two or three days; that Wisdom had laid the foundation of a house, but never lived on the land; that the land was vacant; that the plaintiff Smith had sold his right to the possession or good will of said land to the defendant, who promised to pay $1215 in carpbnter’s work for the claim or good will of the plaintiff to said vacant land; that neither Cherry, Wisdom or plaintiff Smith, were entitled to an occupant claim on said land, and that Rankin knew this, and made the contract with a full knowledge of Smith’s claim, and that the land was neither granted nor occupied by any one at the' time; that Ranldn refused to do the carpenter’s work when called on by Smith; that one Woodbun had entered an occupant claim upon about one hundred acres of the land contracted by Smith to be sold to Rankin. The court charged the jury, that the land being vacant and unappropriated, belonged to the general government, and plaintiff not being in possession had nothing in the premises to sell, and that the contract between him and the defendant was a nudum, pactum, and could not be enforced by law. Upon which die jury found a verdict for the defendant. The plaintiff moved for a new trial, which motion the court overruled, and the plaintiff excepted to the opinion of the court, and filed his.bill of exceptions setting out the above facts, and appealed to this court.
    
      áLustin Miller, for the plaintiff in error.
    
      V. D. Barry, for the defendant in error.
   Catron, Ch. J.

delivered the opinion of the court.

The court charged the jury that the land being vacant and unappropriated, belonged to the general government, and the plaintiff not being in possession had nothing in the premises to sell, and that the contract between him and defendant was a nudum pactum, and could not be enforced by law.

This is the law beyond doubt. But in a case where a party has, by possession and occupancy, acquired a right of preference to enter a certain spot of land, and obtain a grant therefor, by virtue of the laws of Tennessee, he in such case has authority to transfer his right of entry, in exclusion of other citizens, and the assignee is clothed with the same right to enter. This would be a good consideration for a promise, because in conformity with the laws of Tennessee passed for the satisfaction of North Carolina land warrants. But a bargain concerning unoccupied public lands, is wholly void; just as much so, as if the plaintiff had sold the defendant part of his neighbor’s land already granted.

Judgment affirmed.  