Page:North Dakota Reports (vol. 1).pdf/314

 convey, * * * * * And when, without further stipulation or new arrangement, the father executed a conveyance to the son, the fair interpretation is that it was in execution of that prior contract; that it was a present affirmation of its validity, a new contract, so to speak—a sale upon the time and terms theretofore agreed upon.” It requires no interpretation in this case to establish the new contract. Its execution at a time when it was not inhibited stands admitted. A distinction is claimed between lands held as a homestead or as a pre-emption. In either case any contract to convey before final proof renders it impossible to make final proof without committing perjury; yet § 2262, Rev. St. U. S., provides for forfeiture in case of preemption except in favor of bona fide purchasers for value, while no such consequences follow in case of a homestead, and defendants claim that they cannot safely take the land because it is subject to forfeiture. But such is not the case if they are in good faith purchasers, and, if they are not, they are in no condition to seek protection from a court of equity. But, in any event, this question of forfeiture is not in the case. Plaintiff had a good title as against all the world except the United States, with a perfect right to sell and convey. The question of forfeiture can only be raised by the general government. Snow v. Flannery, 10 Iowa, 318; Richards v. Snyder, 6 Pac. Rep. 186; Railroad Co. v. Durant, 95 U. 8S. 576. Granting that the right of forfeiture exists, we cannot anticipate the action of the United States. The forfeiture may be waived. In any event defendants are fully protected under their covenants of warranty. A question of practice was raised in this court, but a ruling on the question cannot affect the result, and the condition of the record is so unsatisfactory that this court is in doubt as to the exact view of the question taken by the trial court, and therefore we decline to pass upon the question. For the error in overruling the demurrer to the answer, the judgment must be reversed and remanded, with directions to the trial court to reverse its judgment and sustain the demurrer. All concur.