Vines M. Lindsey v. John W. and Hardy Sellers, 26 Miss. 169

Mr. Chief-Justice Smith delivered the opinion of the court. This was a writ of error to a decree rendered in the circuit court of Yalobusha county. The plaintiff in error filed his bill on the equity side of said court, for the purpose of obtaining a new trial in an action at law, decided in said court, wherein Vines M. Lindsey, the complainant in the court below, was plaintiff, and John W. and Hardy Sellers were defendants. The general question, whether the allegations of complainant’s bill, and the proofs taken in the cause, show that he is entitled to relief, covers the whole case.

It is a maxim from which courts of equity are studious not to swerve, that they will never do an useless thing. Applying this principle, the question arises, whether, if the judgment at law were set aside and a new trial granted, the complainant upon the showing made, would be entitled to a recovery. The evidence is distinct as to the consideration of the note, upon which the action at law was based. One witness proves, that the note was given for improvements made upon public laryi.

That witness states that a note was first given for the improvements and corn which the defendants have purchased from Thomas, the original holder of the note. The corn was afterwards paid for, and a new note made for the improvements. Of this witness was informed by both parties. This evidence is direct and positive as to the consideration of the note, and is not necessarily in conflict with the testimony adduced by the complainant. Assuming; then, that the consideration of the note was improvements made on public land, was it such a consideration as to entitle the complainant to a recovery upon it ?

It is not sufficient that a consideration to uphold a note should be beneficial or prejudicial to either party to the contract. It is essential that it should arise out of a legal act. In this case, as we have seen, the consideration of the note was improvements made upon public land. The precise question here was decided by this court in the case of Murrill v. Legrand, 1 How. 150, in which it was held, that a note given for an improvement on public land, where there is no right of preemption, was for an illegal consideration, and void.

The note on which the suit at law was brought being thus proved to be invalid, it would have been useless and improper to have granted the relief prayed for, unless the promise made by the defendants subsequent to the assignment of the note to plaintiff, to pay the note if he would indulge them, would estop them from setting up the illegality of the consideration. But this, we think, was not the result. It is not pretended that there was'any other consideration for the promise to pay, than forbearance.

And, admitting that it was distinctly proved that the complainant forbore to sue in consequence of the promise, he was not thereby injured, for the note being void, and, consequently, the party having no right to recover upon it, he could not be injured by the delay. We think the decree was correct, and, therefore, order it to be affirmed. FisheR, J., having been counsel in the court below, gave no opinion.