Page:North Dakota Reports (vol. 1).pdf/311

 the said George W. Cross and Fred D. Hager, for the sum of $4,500, $1,500 of which has been paid. That on or about the said 20th day of July, 1883, and for a long time subsequent thereto—the exact date these defendants are unable to state—the said tract of land belonged to the United States government; that is to say, the plaintiff herein had not filed his declaratory statement for said tract, nor did he enter and pay the government for said land until the summer of 1884, as these defendants are informed and believe, and that, prior to the date of plaintiff's entry of said land, these defendants had paid him on said contract about $1,000; that the written instrument set out in paragraph 3 of plaintiff's complaint is the oral agreement hereinbefore mentioned reduced to writing. Fourth. That all of the transactions hereinbefore set out in plaintiff's complaint and in this answer were in fraud of the United States land laws, and therefore null and void. Wherefore defendants pray that the contract entered into by the plaintiff and defendants be declared null and void, and plaintiff's complaint be dismissed, and for the costs of this action. To this answer plaintiff demurred on the ground that the answer did not state facts sufficient to constitute adefense. This demurrer was overruled, and this ruling of the court is assigned as error. The complaint sets out in hec verba a contract of sale November 12, 1884, whereby plaintiff agrees to sell and convey to defendants, and defendants agree to purchase from plaintiff, the land therein described on the terms and conditions therein specified. The execution of this contract is admitted by the answer. The parties named in this contract are Thomas J. Larison and Catherine A. Larison, of the first part, and D. L. Wilbur, trustee, of the second part.

The answer sets up a parol contract for the sale and purchase of the same lands made more than a year before between Thomas J. Larison and the defendants individually. The terms of this parol contract are fully set forth, and the answer alleges that the written instrument set out in the complaint is this parol contract reduced to writing. There is a demurrer to the answer, and hence both contracts stand admitted as pleaded. Both standing admitted, the question whether or not they are the same contract is a conclusion of law, and not admitted by the de-