murrer. An inspection of the pleadings show clearly that the two contracts, while pertaining to the same subject-matter, and seeking to reach substantially the same result, are, nevertheless, distinct and separate contracts.. The original parol contract, made on the 3d day of June, 1883, at a time when plaintiff had no title to the land, but simply contemplated filing upon it as a pre-emption, was clearly a violation of § 2262, Rev. St. U. S., and as such was void. Mellison v. Allen, 30 Kan. 382, 2 Pac. Rep. 97, and cases cited. It was void not because it was wrong in itself, or involved any moral turpitude, but because it was prohibited on grounds of government policy. The prohibition was temporary in its nature. When the pre-emption right should ripen into patent title, the prohibition would be swept away. The parties to that parol contract evidently comprehended their legal rights and disabilities perfectly. They must have understood that the parol contract was of no binding force, because when plaintiff had procured the patent title, and thus removed the inhibition of the statute, the parties again met plaintiff in person, and D. L. Wilbur, trustee, representing the defendants, (and his authority to do so is not questioned) and executed the written contract of November 12, 1884, on which plaintiff bases his right of recovery. The contention of the parties involves the one question, whether or not this written contract is so connected with the former contract, so impregnated with that illegality, as to bring it within that class of cases which a court of equity refuses to lend its aid in enforcing. The learned judge of the district court evidently thought that it was, and so held the answer good. We are unable to reach the same conclusion. We recognize the doctrine contended for by respondent that if this written contract is based upon any promise growing out of the illegal contract, or if the illegal contract is in any way or to any extent the consideration for the written contract, or if the written contract cannot be enforced without connecting it with, or calling to its aid, the illegal contract, then it should not be enforced in a court of equity.
In our view it is idle to say that the parties never made but one contract, that their minds never met after June 3, 1883. When the parties voluntarily and understandingly executed and
