Baitzb^l, Justice:
This is a suit on an agreement by Taylor to pay Baker $300, “ provided he complies with an agreement made with me for his portion of land, which he is to receive from Government as an actual settler.”
The defence was, a failure of consideration, established, it is alleged, by a deed, the provisions of which are claimed to be in violation of an act of 'Congress. This deed (being the agreement referred to in the note sued on,) is first asserted to be in violation of the act of Congress, approved 4th August, 1842, “providing for the armed occupation and settlement of the unsettled part of the peninsula of East Florida”; but it was not in existence at the date of the deed, and can scarcely be construed to operate on a contract made prior to its passage.
The terms of the deed very clearly refer to an act in force at its date, and as the law granting pre-emption rights, approved 4th September, 1841, is the only one, to which we have been referred, as then in existence, its provisions must be regarded as having been in contemplation of the parties. The tenth section of that law provides, that “all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void;” and the question is presented, Whether the deed above alluded to, is in violation of this provision ? The law declares, “ assignments of rights secured to be void.” Now, such a right was only to be secured by a corn-[252]*252pliance with the 10th and 12th sections, declaring, that “the person who has made, since the 1st of June, 1840, or shall make, a settlement on the public lands, &c., and inhabit and improve the same, and who has, or shall, erect a dwelling, such person shall be entitled to enter any number of acres, not exceeding 160, upon paying to the United States the minimum price of such land” — and, “prior to such entry, proof of the settlement and improvement, thereby required, shall be made to the satisfaction of the Register and Receiver, agreeably to such rules as shall be prescribed by the Secretary of the Treasury, who shall be entitled to receive fifty cents from each applicant for his services; and all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void.”
The fair construction of the act would seem to be, that the assignment of the certificate of the Receiver, made after payment of the purchase money and proof of pre-emption, would be void: this would be the assignment of a right secured under, or by virtue of the act, and such the law invalidates.
But this is not the case under consideration. Here, there was no right secured; no money paid to the Government; and no proof of pre-emption. The subject was a bounty, not a right — a thing in ex-. pectancy, which the party agrees not to prosecute, but relinquishes and abandons, leaving it to his vendee to obtain it, if he chooses, for himself. An assignment of a pre-emption certificate, or a right secured under the pre-emption law, is usually very concise and simple, as, indeed, are generally most acts of assignment. Thus, “ for value received, I assign and transfer the within to A. B.” “ The words required in assignments are, grant, assign, and set over.”— 1 Jacob’s Law. Die. 140. 1 Inst. 301.
The deed, under consideration, has not the words “ assign, nor grant, nor set over”: its terms are, “remised, released, and quit claimed, that parcel of land due me, under an act giving a bounty, which bounty I relinquish and convey,” &c. The terms of the deed are appropriate to the transfer of a claim and improvement on the public lands, held under expectancy of a pre-emption, a relinquishment of the right, and a transfer of the possession and occupancy.
This view is confirmed by the 13th section, which provides, “that before any person claiming the benefit of this act, shall be allowed [253]*253io enter such lands, he shall make oath before the Receiver or Register, that he hath not settled upon and improved the land to sell the same on speculation, but, in good faith, to appropriate it to his own exclusive use or benefit, and that he has not directly, or indirectly, made any agreement or contract with any person or persons whatsoever, by which the title he might acquire from the Government should enure, in whole or in part, to any person except himself.” It would have been the heighth of folly to have made a transfer or assignment in the hope of obtaining a pre-emption in defiance of this provision; nor can we intend that there was such design, whilst the instrument is capable of a different construction. It must be sustained, if possible: “ nt res magis valeat quam pereat” “ The construction shall be favorable; and, therefore, if words are susceptible of two senses, one agreeable to, and another against law, the former shall prevail. The Courts will, if possible, so construe an instrument that it may have some operation, rather than invalidate it on the ground of illegality.” 2 Black. Com. 279 — 380. Coke Litt. 42. Chitty on Cont. 20. Cowper, 714.
This view is also confirmed by the fact, that there is no evidence in the record showing that there was any application for a right of pre-emption by either of the parties, or that Taylor expected or relied, in any way, upon obtaining a pre-emption through the cultivation and improvement of Baber. Whilst coming to this conclusion, wé are free to declare, that if there had been proof of anything approaching to turpitude in the transaction, it would have produced a different result.
By the law of the Territorial Legislature, as early as 1822, the sale of improvements on the public lands was allowed and rendered valid, nor was there ever a disapproval by Congress, of this action of the Territorial Government. Duval Comp. 45.
Whilst we admit that there is a difference of opinion in some of the States of the Union, as to the validity of such sales, we desire to express our hearty concurrence in the sentiments expressed by the Supreme Court of Missouri, in the case of Clark vs. Shultz. The objection there, was, that the contract was not in writing, — an objection not prevailing here, — and the Court say, “ We feel the more inclined to .follow the New York decisions, and to leave the settlers free to dispose of their improvements, as of their horses and cattle. [254]*254In truth, the very offer to sell the improvement, and give up accommodation and comfort, which the squatter has obtained for himself by his labor on the public lands, excludes altogether the idea that he intends, by the sale, to pass away any title or interest in the soil.— These improvements are often of much value to the new settler, and thb person making the improvement in building the cabin and clearing the field, is regarded by the Government as entitled to remuneration therefor, rather than as a trespasser, &c. It forms then, a good and sufficient consideration for any contract or price the purchaser may agree to pay for the possession of such improvements.” 4 Missouri, 235. 9 Missouri, 866. 5 John. 272.
“A man may renounce his possession, and such abandonment in favor of another, is a sufficient consideration to support the contract growing out of such renunciation or abandonment.” 9 Missouri, 866.
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Baitzb^l, Justice:
This is a suit on an agreement by Taylor to pay Baker $300, “ provided he complies with an agreement made with me for his portion of land, which he is to receive from Government as an actual settler.”
The defence was, a failure of consideration, established, it is alleged, by a deed, the provisions of which are claimed to be in violation of an act of 'Congress. This deed (being the agreement referred to in the note sued on,) is first asserted to be in violation of the act of Congress, approved 4th August, 1842, “providing for the armed occupation and settlement of the unsettled part of the peninsula of East Florida”; but it was not in existence at the date of the deed, and can scarcely be construed to operate on a contract made prior to its passage.
The terms of the deed very clearly refer to an act in force at its date, and as the law granting pre-emption rights, approved 4th September, 1841, is the only one, to which we have been referred, as then in existence, its provisions must be regarded as having been in contemplation of the parties. The tenth section of that law provides, that “all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void;” and the question is presented, Whether the deed above alluded to, is in violation of this provision ? The law declares, “ assignments of rights secured to be void.” Now, such a right was only to be secured by a corn-[252]*252pliance with the 10th and 12th sections, declaring, that “the person who has made, since the 1st of June, 1840, or shall make, a settlement on the public lands, &c., and inhabit and improve the same, and who has, or shall, erect a dwelling, such person shall be entitled to enter any number of acres, not exceeding 160, upon paying to the United States the minimum price of such land” — and, “prior to such entry, proof of the settlement and improvement, thereby required, shall be made to the satisfaction of the Register and Receiver, agreeably to such rules as shall be prescribed by the Secretary of the Treasury, who shall be entitled to receive fifty cents from each applicant for his services; and all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void.”
The fair construction of the act would seem to be, that the assignment of the certificate of the Receiver, made after payment of the purchase money and proof of pre-emption, would be void: this would be the assignment of a right secured under, or by virtue of the act, and such the law invalidates.
But this is not the case under consideration. Here, there was no right secured; no money paid to the Government; and no proof of pre-emption. The subject was a bounty, not a right — a thing in ex-. pectancy, which the party agrees not to prosecute, but relinquishes and abandons, leaving it to his vendee to obtain it, if he chooses, for himself. An assignment of a pre-emption certificate, or a right secured under the pre-emption law, is usually very concise and simple, as, indeed, are generally most acts of assignment. Thus, “ for value received, I assign and transfer the within to A. B.” “ The words required in assignments are, grant, assign, and set over.”— 1 Jacob’s Law. Die. 140. 1 Inst. 301.
The deed, under consideration, has not the words “ assign, nor grant, nor set over”: its terms are, “remised, released, and quit claimed, that parcel of land due me, under an act giving a bounty, which bounty I relinquish and convey,” &c. The terms of the deed are appropriate to the transfer of a claim and improvement on the public lands, held under expectancy of a pre-emption, a relinquishment of the right, and a transfer of the possession and occupancy.
This view is confirmed by the 13th section, which provides, “that before any person claiming the benefit of this act, shall be allowed [253]*253io enter such lands, he shall make oath before the Receiver or Register, that he hath not settled upon and improved the land to sell the same on speculation, but, in good faith, to appropriate it to his own exclusive use or benefit, and that he has not directly, or indirectly, made any agreement or contract with any person or persons whatsoever, by which the title he might acquire from the Government should enure, in whole or in part, to any person except himself.” It would have been the heighth of folly to have made a transfer or assignment in the hope of obtaining a pre-emption in defiance of this provision; nor can we intend that there was such design, whilst the instrument is capable of a different construction. It must be sustained, if possible: “ nt res magis valeat quam pereat” “ The construction shall be favorable; and, therefore, if words are susceptible of two senses, one agreeable to, and another against law, the former shall prevail. The Courts will, if possible, so construe an instrument that it may have some operation, rather than invalidate it on the ground of illegality.” 2 Black. Com. 279 — 380. Coke Litt. 42. Chitty on Cont. 20. Cowper, 714.
This view is also confirmed by the fact, that there is no evidence in the record showing that there was any application for a right of pre-emption by either of the parties, or that Taylor expected or relied, in any way, upon obtaining a pre-emption through the cultivation and improvement of Baber. Whilst coming to this conclusion, wé are free to declare, that if there had been proof of anything approaching to turpitude in the transaction, it would have produced a different result.
By the law of the Territorial Legislature, as early as 1822, the sale of improvements on the public lands was allowed and rendered valid, nor was there ever a disapproval by Congress, of this action of the Territorial Government. Duval Comp. 45.
Whilst we admit that there is a difference of opinion in some of the States of the Union, as to the validity of such sales, we desire to express our hearty concurrence in the sentiments expressed by the Supreme Court of Missouri, in the case of Clark vs. Shultz. The objection there, was, that the contract was not in writing, — an objection not prevailing here, — and the Court say, “ We feel the more inclined to .follow the New York decisions, and to leave the settlers free to dispose of their improvements, as of their horses and cattle. [254]*254In truth, the very offer to sell the improvement, and give up accommodation and comfort, which the squatter has obtained for himself by his labor on the public lands, excludes altogether the idea that he intends, by the sale, to pass away any title or interest in the soil.— These improvements are often of much value to the new settler, and thb person making the improvement in building the cabin and clearing the field, is regarded by the Government as entitled to remuneration therefor, rather than as a trespasser, &c. It forms then, a good and sufficient consideration for any contract or price the purchaser may agree to pay for the possession of such improvements.” 4 Missouri, 235. 9 Missouri, 866. 5 John. 272.
“A man may renounce his possession, and such abandonment in favor of another, is a sufficient consideration to support the contract growing out of such renunciation or abandonment.” 9 Missouri, 866.
We are of opinion, then, that the relinquishment by Baker, of the expected bounty of the Government, the abandonment and surrender of his improvements, and the possession taken by Taylor, of themselves formed a good and valid consideration for the agreement, and were not prohibited by the act of Congress alluded to.
Another ground assumed, is, that plaintiff did not prove that he had fully complied with the agreement. This must allude to the provision, that “Baker shall serve out the time required of settlers bylaw, which entitles them to either donation or pre-emption”: but this provision would seem to be superseded by another engagement attached to the deed, and which is incorporated in the agreement sued on, that Baker was to work for the term of one year, and Taylor was to pay him f 300 for his year’s services and his share of the land, which is considered full payment for the whole.”
The first provision, left the time of service indefinite; the latter, made it certain, and was more favorable to Taylor, as by the preemption law, only a few weeks service was required to entitle a party to'its benefits. But, supposing the first provision in force, we are not prepared to say that there is no evidence to prove a performance; on the contrary, we see little room to doubt the sufficiency of the proof in this respect.
Again, it is maintained, that there was a plea to the second and third counts, which was demurred to; and, as the demurrer was not disposed of, these counts, referring alone to the land, must be regard[255]*255ed as not in issue. The plea alluded to is, in effect, the general issue, which had already been filed, and gave to defendant no new advantage which he had not secured by that plea. It seems not to have been relied upon by the parties, and was properly treated as a nullity. And here we take occasion to say, that it is not enough in this Court, to shew that a plea was on file in the Court below: the party complaining, must go further, and shew that that Court either refused to act upon the pleading, or decided it wrongfully; otherwise, this Court would lose its appropriate office of an appellate tribunal, by deciding, originally, questions never raised in the Court below, and which, if presented, would probably have been correctly decided there.
The view we have taken of this case, is so strongly fortified by the other testimony in the record, as. to leave us entirely satisfied with the justice and equity of the verdict and the decision of the Court.
The services of Baker for the year, are estimated by one witness at $300, and by one of the defendant’s witnesses at $200 and his clothes, and $300 is the entire1 consideration for the improvement and services, both.
Upon the whole case, we are of opinion, that the judgment be affirmed with costs.