The judgment of the court was pronounced by
Preston, J.This suit is brought on a promissory note, given by the defendant to Gi-een Allen, l'or'an improvement on the public land. The improvement consisted of good log cabins and a hundred and fifty acres of cleared land. Allen had lived upon the land until he had lost the right of purchasing it from the United States by preemption. Still, the improvements were valuable to him. It was a home for his family, established by his labor. The quantity of cleared land was sufficient, also, to enable him to support a family, and no one could dispossess him except the United States, or their vendees. It is to be presumed, too, until the contrary appears, that he made the improvements, not as a trespasser, but with the laudable and lawful purpose of entering it, and may have-been prevented, by his poverty, from purchasing it from the government.
We have no reason to believe that the defendant purchased the improvement, with a view to trespass on the public land,but, on the contrary, are bound to presume that, being in a situation to enter the land, the defendant not only bought the improvements, but intended to purchase, and did purchase, the right of occupancy, with a view to acquire the land by preemption, upon his own possession. The improvement was, therefore, valuable also to the defendant, and he enjoyed that value for a year, and might have entered the land; but changing his mind, or being unable to enter it, he offered it for sale, to afford others the opportunity to enter government land, already improved, without appropriating to himself the result of another’s labor, which, in morals, belongs to him, although not protected by law.
The purchaser of the improvements, in this case, being, as we presume, entitled to enter the land, and having purchased them for that purpose, they afforded a valuable and legal consideration for the note sued upon. And in this respect, the case differs from those relied upon, in which the purchaser of the improvements could not have entered the land.
The judgment of the district court is reversed; and it is decreed, that the plaintiff recover from the defendant the- sum of five hundred dollars, with interest at the rate of eight per cent from the first day of January, 1849, until paid, and costs in both courts,