is founded on new consideration, and is valid: Armstrong v. Soler, 11 Wheat. 258; Fidler v. Norton, 30 N. W. 135. The question of forfeiture by the illegal oral agreement is one for the government only to raise: Woodbury v. Dorman, 15 Minn. 272; Richards v. Snyder, 6 Pac. Rep. 186; Snow v. Flannery, 10 Iowa 318. The defendants are not in position to allege that the contract was against public policy: U. P. Ry. Co. v. Durant, 95 U. S. 576.
Messrs. Nickeus & Wilbur for the respondents: The written contract was simply the oral contract reduced to writing, hence tainted with the same disease: Lamb v. Davenport, 18 Wall 307; Greenhood on Public Policy, 574-5; Craig v. State, 4 Pet. 436; Hunt v. Kinckerbocker, 5 Johns. 327; Hall v. Coppell, 7 Wall. 542; Whett v. Buss, 57 Mass. 448; White v. Russell, 17 Mass. 257; Belding v. Pitkin, 2 Caines, 147; Holman v. Johnson, Cowper, 334; Gray v. Hook, 4 N. Y. 449; Woodworth v. Beimet, 43 id. 273.
Bartholomew, J. Plaintiff in his complaint alleged that on and prior to November 12, 1884, he was the owner in fee of certain real estate situated in Benson county, in the then territory of Dakota; that he held a patent for such land from the United States, and that on said November 12, 1884, entered into an agreement with defendants under the name of D. L. Wilbur, trustee, for the sale of said lands as follows: “This agreement made and entered into this 12th day of November, A. D. 1884, by and between Thomas J. Larison and Catherine A. Larison, his wife, of Benson county, D. T., of the first part, and D. L. Wilbur, trustee, of Stutsman county, and territory of Dakota, of the second part: That for and in the consideration of the sum of forty-two hundred dollars, to be paid as hereinafter mentioned, said parties of the first part agree to sell and convey, by good and sufficient warranty deed, to said second party, the east half of the south-east quarter and the east one-half of the north-east quarter of section sixteen, in township number one hundred and fifty-three north, and range number sixty-seven west, of the 5th principal meridian, D. T. The said deed shall be subject to a mortgage of three hundred dollars given
