(L. K. Church, J., concurring.) I concur in the judgment in this case, upon the following grounds:
1. ‘ The relinquishment obtained by Fideler from Mrs. Adamson, and for which he paid her $85, was not only a thing of value, but it was an instrument designed by her to transfer to Fideler her rights in the land. Without it no person could have acquired the government title except Mrs. Adamson, and she only by jjerpetrating a fraud. Clearly, then, when Fideler furnished this instrument to defendants for the purpose of ena*277bling them to procure the title, he supplied that without which they could not have acquired such title, and which represented, in fact, so much of the purchase price of the property. By the use of this instrument they did obtain the title; but instead of procuring it in the name of their principal, fraudulently took title themselves. This clearly, created a trust, and rendered them liable to an action to compel the performance by them of their contract to place the title in the name of their principal.
2. It is alleged that the contract was void as against public policy. I am of the opinion that the statute of 1880 created between the government and those embraced within its provisions a quasi contract of sale, which entitles the settler to purchase the land merely on payment of the price. It must be conceded that Mrs. Adamson was one of those thus entitled. Either the relinquishment executed by her was such an instrument in writing as the statute expressly'contemplates, in which case her transferee, Pideler, was legally entitled to complete the purchase, or it operated to transfer her equitable interests, and thus, at least, give her a right to complete the purchase for h'is benefit. I am unable to dircern in this aspect of the contract anything immoral or against public policy. Nor do I think there is any greater force in the contention that the affidavit filed by ter at the time of making her settlement in anywise precluded her from making this transfer, or affect it in any way. If it was essential to her obtaining a settlement, it must have been within the contemplation of the act which expressly recognizes transfers made notwithstanding such affidavits.
3. If the contract was against public policy, defendants cannot be heard to allege it. Union Pac. R. Co. v. Durant, 5 Otto, 576.
For these reasons, I think the judgment should be reversed.
Palmer and McConnell, JJ., dissenting. Tripp, C. J., not sitting.