Tenison v. Martin. gress, passed the first day of June, 1840, at the request of the defendant, relinquished his pre-emption right to the government of the United States, in consideration of which relinquishment, defendant agreed to pay him $1,000 therefor. The second count avers the promise on part of defendant, to pay one thousand dollars to plaintiff in consideration of the plaintiff's relinquishment of his right of pre-emption to said land to the government, and his valuable improvements made thereon to one Matthew Tenison, the brother of the defendant, and permit him, the said Matthew, to enter upon and improve said land, that he might enter the same under the act of congress of 4th September, 1841-avers a compliance on part of plaintiff, and that said Matthew Tenison took possession, and entered the land in the land office under the said act of congress. The third count is a quantum valebant, for the pre-emption right relinquished at defendant's request, by the plaintiff, to the government; the fourth, a similar count, in consideration of a relinquishment of plaintiff's pre-emption right to the government, and of his improvement to one Matthew Tenison, and consent that he might enter upon the same and improve it, and finally enter it, under the act of 4th September, 1841. The fifth count, without averring the plaintiff's right to a pre-emption on the land, declares defendant's indebtedness in consideration of plaintiff's surrender to Matthew Tenison, at defendant's request, of improvements made on the land by plaintiff, and of his consent that Matthew T. might enter the same under the act of 1841. The declaration contains several other special counts, stating the consideration for the promise on part of defendant variously-such as "the abandonment by plaintiff of his possession, so that Matthew Tenison might improve and enter the land;" "that plaintiff would not assert his right to pre-emption," &c. To each of the counts (twelve in number) a demurrer was interposed, which being overruled by the court, the defendant below pleaded the general issue, with leave to give any matter in evidence which might be specially pleaded. The proof, which was demurred to, was in substance this: The said quarter section of land had been occupied by Samuel Martin from the year 1833 to 1839 or 1840, when he de Tenison v. Martin. parted this life, leaving several children. The plaintiff below was the son of said Samuel, and was himself a man of family, and resided on the land. That he agreed with defendant to waive his right to a pre-emption on the land, by becoming a witness to prove the pre-emption of Matthew Tenison, who, by the contract, was to take possession and make improvements, so as to entitle him to a pre-emption under the act of congress of 1841. The proof further showed that plaintiff below did become a witness to prove the preemption for M. Tenison, which, by the rules of the land office, amounted to a waiver of his claim; and after the entry was made, plaintiff, in a conversation with Thomas Tenison, the defendant, stated that he had agreed to take $650 for his claim, but to avoid difficulty, he would take $600. Tenison refused to pay this sum, but stated he had offered a certain amount in money and a certain amount to be secured by note due at Christmas then next, but that he did not then consider that he owed the plaintiff any thing. The land was proven to be worth $1,000, the waiving of the right of pre-emption was shown to have been worth six or seven hundred dollars. There is no proof fixing the exact amount which defendant below was to pay the plaintiff. One witness states, that defendant acknowledged the contract to be that he was to pay one hundred dollars down, and more if he could, and was to give his notes for the remainder due at Christmas, but that he added at the same time (having then made the entry) that he did not consider then that he owed the plaintiff any thing. The plaintiff joined in the demurrer to the testimony, which demurrer was overruled, and the damage being uncertain, it was ordered that the jury assess the same, who returned as their verdict that they assessed the damage at the sum of $826 71, whereupon, the court gave judgment for this sum. It also appears by a bill of exceptions taken at the trial, that defendant below moved the court, before demurring to the declaration, to strike out each count in the declaration because of a variance between the several counts and the cause of action as indorsed on the writ. The cause of action so indorsed, is, to recover $1,000, the price agreed to be paid by defendant below, in consideration that the plaintiff would abandon his pre-emption right on the S. W. quarter of Sec. Tenison v. Martin. 36, T. 9, R. 10, and permit Matthew Tenison to improve it, and entitle himself to a pre-emption thereon. The motion to strike out was overruled, and the plaintiff in error now assigns for error— 1. The overruling his motion to strike out the counts. 2. The overruling the separate demurrers to each count in the declaration. 3. The overruling the demurrer to the testimony. 4. The court erred in rendering final judgment upon the verdict of the jury, who do not appear to have been sworn to assess the damages, &c. SAMUEL F. RICE, for plaintiff in error, made the following points: 1. Any agreement opposed to public policy, the provisions of a statute or of an act of congress, is void, and cannot be made the ground of a recovery. 2. A promise by the purchaser of public land, (or by a third person,) to pay for improvements made thereon previous to the purchase, will not support an action. Nor will a promise made to a settler on public land, in consideration of his waiving his right of pre-emption thereon, be enforced. Duncan v. Hall, 9 Ala. Rep, 128; Kirksey v. Kirksey, 8 Ala. R. 131; Cromelin v. Minter, et al. 9 Ala. R. 594; Hudson and Hudson v. Milner, 12 Ala. 667. 3. An agreement entered into on Sunday, is void: and so is an agreement for the sale of any interest in land, if not reduced to writing. 4. If the sale of a right of pre-emption is valid, and an action is brought to recover on a verbal promise made in consideration of such sale, the seller cannot recover without proving that he had a right of pre-emption; and in such case, if the counts are special, the proof must show the contract to be such as is set forth in those counts. 5. Even against a party demurring to evidence, it will not be intended, in the absence of all proof, that a plaintiff has proved matters, which the law has made pre-requisites to his right to recover. Woodward v. Harbin, 4 Ala. R. 534. 6. The effect of a joinder in a demurrer to evidence, is to discharge the jury from the further consideration of the issue Tenison v. Martin. submitted in the first instance to them. And in such a case, it is erroneous to leave it to that jury to assess the damages for the plaintiff, unless the record shows that a writ of inquiry was awarded, and that the jury were sworn to assess the damages. Hall v. Browder's adm'r, 4 Howard's (Miss.) R. 224. L. E. PARSONS, contra. The proof shows that Martin, by agreement with defendant, abandoned the possession of the S. W. fractional quarter Sec. 36, T. 9, R. 10, and that defendant's brother went into possession, and entered the land in his own name. 1. Is this a sufficient consideration for the promise to pay? 2. Is there any legal prohibition of the agreement, or any thing in the policy of the law which forbids it? 1. Is this a sufficient consideration? This court has held that an agreement to lease the reservation allowed to an Indian under the treaty of Fort Jackson, is a valuable consideration and will support a conveyance; yet the court acknowledge, the moment the reservee abandons the possession, the land becomes the property of the United States, and decide the case upon that state of facts. But they sustain the transaction. James v. Scott, 9 Ala. 579. In what does that case differ from the one at bar? The reservee had no interest which he could convey, neither had Martin. But the Indian let James into possession, and that was held sufficient. So did Martin let Matthew Tenison into possession. This, then, must be sufficient in this case, if the same rule is recognised, unless there is something in the policy of the law which forbids such a transaction as this. It will be borne in mind that he (Tenison) has acquired a title. 2. Does the policy of the law forbid it? The facts show that M. Tenison has entered the land. By reference to the acts of congress, it will be seen that no person can enter lands as a pre-emptioner, unless he is a citizen of the United States, twenty-one years of age, has resided four months previous to the first January, 1840, on the land, and is the head of a family. This court will presume that this proof was all made when he made the entry in the land office; because the register Tenison v. Martin. and receiver constitute a court for the purpose of deciding all these questions-and their action will not be inquired into in a collateral proceeding. Matthew Tenison, then, must have been one of that class of persons, which was to be benefited by the operation of the pre-emption laws, or he could not have entered the land in his own name. The only restriction upon the settler is contained in the act of June 22, 1838, which prescribes an oath that he shall take before claiming the benefits of this law. This oath, it will be seen, only prevents him from entering for another directly or indirectly, &c. &c. There is nothing in the acts of congress which forbids the party who is in possession to leave it generally, without consideration, or with the purpose of letting another of the same class of persons enter, who will be able to assert a pre-emption in his own name, when he is in possession. Act June 1, 1840-June 22, 1838-May 29, 1830-June 19, 1834-Jan. 23, 1832. It has been the practice to recognize these transfers by the general land office, and even the assignment of the certificate of entry. The instructions of the department gave the form for the assignment; and this court recognized them. 2 Por. 148, and Falkner v. Jones and Leith, 12 Ala. 165. If this were an attempt to convey a right of pre-emption, so that one might enter who never could be permitted to enter lands, by reason of his not possessing the requisite qualifications, there would be some degree of foundation for the argument. But that is not this case. Martin merely abandoned the possession. dertake to convey any thing to Tenison. his entry on his own qualifications alone. He did not unThe latter made Upon the question of consideration see 9 Ala. 579; 1 Sug. Vend. 6 Am. ed. p. 10; Eng. ed. 142, note; also top page 148, note 1; also 104, § 14. The court will presume the jury were sworn in support of the record, especially as the parties were in court, and made no objection. CHILTON, J.-In ex parte Ryan, 9 Ala. R. 90, it is said, the act of 1807, (Clay's Dig. 321, § 50,) which directs the |