Page:North Dakota Reports (vol. 1).pdf/313

 acknowledged the contract of Nov. 12, 1884, we are bound to conclusively presume that their minds met then and there. We next notice that this written contract is complete and perfect in all its parts. There is nothing that will warrant us in saying that the new contract was made because the parties considered themselves bound by the old one. It is evident that they knew they were not bound. The written contract was made because the one party desired to sell and the other to purchase the land. The consideration was complete on both sides. So far as the record shows, it was just the contract these parties would have made had they never had any prior negotiations; and, had that been the case, no question of the legality or sufficiency of this contract would ever havé been raised. It seems evident that the legal contract did not grow out of the illegal; that the illegal was in no sense the consideration for the legal; and that the legal can be enforced without any connection with or reference to the illegal. We are not prepared to hold that because, at a time when they could not legally do so, these parties contracted relative to a certain subject-matter, therefore they are forever barred from contracting with each other relative to that same subject-matter. The contrary doctrine has been announced time and again by the courts with reference to what are known as “Sunday contracts.” We think this case covered in all its points by the case of Sutphen v. Sutphen, 30 Kan. 510, 2 Pac. Rep. 100. That was a stronger case for defendant than is this. That case was between father and son. The father had a homestead filing. Before final proof he entered into a parol contract with the son for the conveyance of the homestead land to the son fora specific consideration, portion of which was paid down in the cancellation of an indebtedness from the father to the son. After final proof the father, without any further contract, deeded to the son, when another payment was made, and the balance left to be paid in the future. This balance not being paid, the father brought suit to recover it, and the son set up as a defense the illegality of the transaction. The supreme court of Kansas, by Brewer, J., said: “Doubtless the original contract made before plaintiff had perfected his title to his land was void. But when the deed was made the father had a right to