rected to modify its judgment accordingly. The respondent will recover his costs. Modified and affirmed. All concur.
Corliss, C. J., having been of counsel, did not sit upon the hearing of the said case; Judge Morgan, of the second judicial district sitting by request.
Thomas J. Larison, Plaintiff and Appellant, v. Dwight L. Wilbur and Johnson Nickeus, Defendants and Respondents.
1. Written Contract Not Invalidated by Prior Void Parol Contract.
Where plaintiff, who held the patent title to certain real estate acquired by him under the pre-emption laws of the United States, entered into a contract, otherwise valid, for the sale and conveyance of such real estate, such contract was not invalidated by the fact that prior thereto, and not before plaintiff acquired his title, or filed his declaratory statement, a parol contract had been entered into by the same parties to the same effect.
2. Pre-Emption; Question of Forfeiture Can Only be Raised by United States.
As against all the world, except the United States, plaintiff had perfect title to said land, with good authority to sell and convey the same, and the question of forfeiture, by reason of the existence of said prior parol contract, under § 2262, Rev. St. U. S., can be raised only by the United States. Such forfeiture may be waived. This court cannot anticipate the action of the federal officers in that respect.
(Opinion Filed November 29, 1890.)
APPEAL from district court, Stutsman county; Hon. Roderick Rose, Judge.
S. L. Glaspell and John S. Watson, for Appellant.
The oral contract made before the plaintiff made final entry was confessedly void, but the written contract made afterwards entirely supersedes the former: § 3545 Compiled Laws. The inhibition of the United States Statutes applies only while the land belongs to the government: Sutphen v. Sutphen, 2 Pac. Rep 1060. The second contract is not connected with the illegal act,
