28 mnmiur. imromm.
same day said defendant executed a contract to convey an undivided half
· interest in the property within 30 days after acquiring title from the gov-
ernment. Both instruments were dated the first of January, 1876. The
deed was immediately placed on record, but the contract was kept secret
until after the acquisition of title from the government. Both deed and .
contract recite a consideration of $400. The execution of both deed and
contract and the acquisition of title are admitted, but the defendants
plead both want and illegality of consideration. Of course, in face of the
recitals in the contract, the burden of proof is on them to make good
their defenses. The following facts are admitted by the defendants or
are beyond dispute: J U
Both deed and contract were executed after the decision of the supreme
court deciding that the title tothe Hot Springs reservation was in the
United States government, and not in either of the three existing claim-
ants} The land in controversy was within the limits of a tract of about
20 acres, which said plaintiff had purchased years, before from one Mrs.
Sabin, which tract had been inclosed and cultivated by him for aseries
. of years. The defendant Joseph Molen had obtained permission, first
_ from plaintiff Mrs. Gaines, and then from her husband, the other plain-
tiff', to occupy the ground in controversy, and build upon it, and he had
a few months prior to these transactions built thereon a small house.
Plaintiff William H. Gaines agreed to furnish the evidence to enable said
defendant to establish his claim to the property, if an anticipated act for
the benefits of the occupants of Hot Springs should be passed by con-
gress`; and, when theact of congress was passed creating the Hot Springs
commission, said defendant filed his petition before the commission,
asking the right to purchase, and said plaintiff did go before the commis-
sion, and give the testimony upon which the certificate of purchase was
awarded to defendant; so that this plaintiff did comply with that agree-
ment, which defendants insist was the sole consideration for this con-
tract. It is probable that, prior to defendants’ entry and building, the
fence around the 20-acre tract above referred to had been taken away,
_ and that the field was then open and uninclosed. The said plaintiff tes-
tifies that the house upon this ground was built by defendant Joseph
Molen and his (plaintiffs) son, as partners, and that the accounts be-
. I tween these partners were settled and closed by this deed and contract.
U - Defendant denies this, but admits that plaintiffs son furnished some
material, and superintended the work, and that he had a settlementwith
plaintiff for such labor and materials.
· In the opinion of the supreme court in the case in which the title of
the three claimants to the Hot Springs reservation was declared void as
against the government, it was intimated that congress, in any future dis-
_ position which it might make of the land, would doubtless recognize any
equities in favor of these claimants, and it has since been decided by
that courtz that, in the act passed by congress for the disposition of the Hot
Springs reservation, there was an intention to recognize these equities.
It is also true that the ground surrounding the lots in controversy was
awarded to the plaintiffs by the Hot Springs commission, and doubtless by
*92 U. S. 698. ’ 111 U. S. 276, 4 Sup. Ct. Rep. 605.