Fletcher

In December, 1875, the plaintiff agreed in writing to convey to the defendant twenty acres of land for $1,000. Defendant paid $500 of the purchase price down, and executed a promissory note for the remaining $500, due eighteen months after its date. Whereupon the defendant took possession of the land.

After the note became due, the plaintiff brought suit on the note, tendered a deed according to agreement, and prayed for judgment against the defendant for the amount due on the note, and that the land be sold, and the proceeds applied in satisfaction of such judgment, etc. Prayer in usual form.

Defendant, by his answer, admits all these facts, but denies that the plaintiff had, at the time of the execution of the agreement, or has now, the legal title to the lands, and alleges that there is an entire failure of consideration for the agreement of defendant and the $500 paid ; alleges that the land was public land, subject to the general land laws of the United States, and *121 that the defendant, being a qualified pre-emptor, entered and settled upon the S. i of the NW. í and 1ST. i of SW. of sec. 32, T. 2 S.,E. 13 W., S. B. M., which includes the land in controversy, on the 12th…