The opinion of the court was delivered by
Sarrord, J.:ti°endo“° pi00f *43cannot^fresume silence. *42This was an action upon an ordinary promissory note, and the questions here presented, involve to some extent a consideration of the answer of the defendant, and the facts relating *43thereto, which appear to have been found by the court. Several defenses were interposed, but of these, it will be necessary to call attention to the first only, and that is the plea of a want of consideration. The other defenses are to be laid out of the case, for the reason, that there are no findings in respect thereof, and there is no showing that any testimony relative thereto was introduced on the trial below. This last not appearing, this court is unable to say that the court trying the cause failed of any duty by reason of not finding upon the whole case, as made upon the issues joined and the testimony taken together. If no evidence applicable to any particular defense was offered, it is hardly necessary to say, that all that could have been done by the court was to declare that such defense had not been sustained, and this could as well be drawn from the conclusions which were stated.
3 contbact. He-a “claim- i3 a siueration. II. The judgment below was for the plaintiff — thus denying the defense first above referred to. It appears from the findings of the facts of the case, that the transaction m respect oi which the note SUed upon was given, was concerning the transfer of the possession and occupancy of a certain portion of the public lands, upon which the plaintiff below and another party had claims under the law commonly known as the “Homestead Act.” It is not shown just what acts were done by them as furnishing a foundation for their said claims, though “ it does not appear but what they (or one of them) had complied with the said act, so as to be entitled to the land under it.” There had been placed upon the said land a log dwelling-house, and the only inference that can be reasonably drawn from the ease stated is, that it was put there by these *44parties, and was in their possession at the date of the negotiations between them and the defendant; and to this effect must have been the conclusions of the court. It further appears that they relinquished their claims, whatever they were, to the said defendant, (now plaintiff in error,) who went into possession; and in doing so, they guarantied the right of a homestead upou said land to said party. This right, the case shows, was secured as contemplated by the contracting parties, and without any interference or trouble from or by any person. It seems to be unnecessary to inquire as to the point made for the plaintiff here, that there was in the transaction stated an attempted “ sale of a homestead right,” which would be void under the laws applicable to such right; because, if there were, there was yet enough (outside of such right) which was evidently the subject of contract between the parties, and as it is believed lawfully so, to furnish a good consideration for the promise to pay. The possession of the land and the house situate thereon, (¡which for aught that appears may have been worth all that was agreed to be paid by the purchaser,) was acquired by Moore pursuant to the agreements of the parties, and was vested in said purchaser, as has been already remarked. And that such possession, and the right thereof, was and would be a lawful subject of contract and sale — chap. 39, Comp. L. 1862; and chap. 21, section 9, GenT St. 1868. This of course is upon the supposition that no fraud intervened in the premises; and fraud, as has been seen, does not figure as a question in the case here. Fraud is not to be presumed, but must always be shown.
*45N^»í?ST"í£tion. *44III. But the right to’ occupy the house and premises, which passed from the plaintiff below and his co-com *45tractor to the defendant, was not all the consideration moving' from the said parties to the said defendant. They guarantied to him over and beyond such right, the right to a homestead on the same premises. This guaranty was certainly of some value to the guarantee, and he evidently was of a like opinion when he secured it; and the presumption would be deducible from the facts found that, if such guaranty had not been given, and if they who gave it, had not acted in accordance therewith, at least to the extent of their own claims upon the possession named, the said guarantee might not have been able to secure any right whatever to the la'nd. In this view of the transaction there seems to be ample foundation for the application.of the principles that an inconvenience or loss on the one side and a corresponding benefit on the other, appearing to have resulted to the parties respectively, it is a sufficient showing that there was at least not an entire failure of consideration'. It seems to us that in view of all the facts of the case, there was a good consideration for the note in question, and' hence that the decision of the court below should be sustained.
It may also be remarked before leaving the case that the courts of Missouri have, in instances like the present, held a similar doctrine to that above expressed, and have gone even further. 20 Mo., 302; 24 Mo., 216; 28 Mo., 30.
The judgment is affirmed.
All the justices concurring.