Benjamin Zickafosse v. Abraham Hulick. moiety, or thereabouts, of a certain "claim," situated in the counties of Washington and Henry, then in the possession of, and belonging to the plaintiff, with an averment that possession was given to the defendant, &c. Plea, general issue, and notice to introduce evidence of, 1, failure of consideration; 2, set-off; 3, money had and received, &c. At the November term, 1841, the case was submitted to a jury, and on the trial, the plaintiff introduced a witness to prove a parol contract for the sale of the claim from the plaintiff to defendant, referred to in the declaration, which contract was never reduced to writing, nor the promise on which the plaintiff sought to recover ever reduced to writing. The defendant objected to the introduction of the evidence, on the ground that a claim was an interest in land within the meaning of the statute of frauds. Which objection was overruled by the Court, and the *tes- *176 timony permitted to go to the jury. To which opinion of the Court the defendant excepted. Verdict and judgment for the plaintiff for $65 damages, and costs, $17.884. To reverse this judgment, the defendant below brings the cause to this Court on a writ of error, and assigns for error: 1. That the Court erred in allowing the plaintiff below to prove the contract for the sale of the claim, referred to in the said plaintiffs' declaration, by parol testimony, said contract not having been reduced to writing, although the sale was for such an interest in lands as is embraced within the statute of frauds. J. C. HALL, for plaintiff in error. E. H. THOMAS, for defendant in error. Defendant contends that the ruling of the Court below was correct. That supposing such a sale to be within the Benjamin Zickafosse v. Abraham Hulick. statute of frauds, it is saved by the law of Wisconsin, approved December 3, 1836, entitled "An Act to provide for the collection of demands growing out of contracts for sales of improvements on public lands." Which same law was re-enacted word for word, in this territory, and approved January 15, 1839. See first volume Iowa Statutes, page 388. Which statutes make all parol contracts and assumpsits in relation to the pablic lands valid in law and equity. This statute was in force when the sale in the above suit was made, and has been in force ever since. This statute was passed by the legislature expressly to validate such parol sales to claims, and save them from the operation of the statute of frauds, and this statute, so far as it conflicts with the statute of frauds, repeals the same. But again, supposing we had no such statute, defendant contends that such parol sale would be good at common law, and that it does not pass such an interest in lands as is contemplated by the statute of frauds. Our statute of frauds in this respect is an exact copy of the British statute of frauds; 29 Car. I. Cap. 3, and numerous decisions of the English Courts have settled that this statute applies to a sale of land or some interest therein. See 11 East. 362; 2 M. & S. 205, 208; Chitty on Con. 207. See also American Decisions; Bean, Oden & Rector v. Valle &c., 2d vol. Mo. Rep. p. 126. The point has been thus settled in New York, see 5 Johns. Rep. 272; 11 Johns. Rep. 145. *177 *See also, 2 Stark. Evidence, note 1, to page 348, re ferring to Danforth v. Lowry, 1 Haywood Tenn. Rep. 61, where it is held that "the terms 'lands, tenements, and hereditaments,' in the statute of frauds, in Tennessee, does not comprehend an equitable estate; sales of occupant claims are, therefore, not within the statute." Defendant contends, then, that such parol sale to improvements in the United States lands is not a sale of any interest in said lands (especially in this case, as will appear Benjamin Zickafosse v. Abraham Hulick. from the transcript), sail interest, both legal and equitable, being in the United States, but is merely a sale of improvements (which in most cases is merely personal property), or in other words, a sale of the labor of the vendor and the products of said labor to the vendee. See the case of J. & I. Clark v. Shultz, 4 Mo. Rep. p. 235, and the reasoning of the Court, where it is held that "an improvement on the land of the United States may be sold without writing and is not affected by the statute of frauds." See also, the authorities referred to in that case. BY THE COURT, WILSON, JUSTICE.- The only question which arises in this case is presented by the bill of exceptions, which is as follows; viz: "Be it known, that on the trial of the above cause, the plaintiff introduced a witness to prove a parol contract for the sale of the claim of the plaintiff to defendant, referred to in his declaration, which contract was never reduced to writing, nor the contract on which plaintiff sought to recover ever reduced to writing. The defendant objected to the introduction of the evidence on the ground that a claim was an interest in land within the meaning of the statute of frauds, which was overruled by the Court, and the testimony permitted to go to the jury, to which defendant excepts, &c." Is a parol sale of improvements upon the public lands such a sale as is affected by the statute of frauds? The 1st, 2d, and 3d sections of the statute of frauds in force here are taken from the statute of frauds, 29 Car. I. Cap. 3, and it is now well settled by numerous decisions that this statute embraces within its provisions only sales or transfers of lands or some interest therein. 11 East. 362; 2 M. & S. 205, 208; Chitty on Con. 207; Robts. on Stat. of Frauds, 126-7; 4 Mo. Rep. 235. In Missouri, where the statute of frauds is similar to that of ours, a case precisely in point will be found. See the Benjamin Zickafosse v. Abraham Hulick. case of Clark et al. v. Shultz, 4 Mo. Rep. 235, where the Court use the following language: *178 *"In New York, under precisely such a statute as our own, it has been settled that an improvement on the public land is not such an interest in or concerning the land as to make it necessary to reduce the sale or contract for the transfer of it to writing. 5 J. R. 272; 11 J. R. 145." In that case judgment was rendered for the plaintiff on two promissory notes, the consideration of which was a verbal contract for the sale of the right of the plaintiffs to certain improvements upon the public lands. Whether there were statutes in those states, authorizing the collec tion of demands growing out of contracts for sales of improvements on public lands, does not appear from the decisions referred to. But here, at the time of making the promise sued upon in this case, a law was in force enacting "that all contracts, promises, assumpsits, or undertakings, either written or verbal, which shall be made hereafter in good faith and without fraud, collusion or circumvention, for sale, purchase, or payment of improvements made on the lands owned by the government of the United States, shall be deemed valid in law or equity, and may be sued for and recovered as in other contracts." As the statute of frauds does not apply to such a contract or promise, and as the statute provides for the collection of these demands, the judgment below is affirmed. George W. Colcord and Elijah Sprague v. John P. Funk. GEORGE W. COLCORD and ELIJAH SPRAGUE, plaintiffs in error, v. JOHN P. FUNK, defendant in error. Error to Des Moines. A service on a defendant, on a petition under the mechanics' lien law, by posting a copy of the summons on the property to which the lien attached, is not a good service, unless the defendant cannot be found to receive personal service. And the sheriff should first endorse not found" (i). D. RORER, for plaintiffs in error. JAMES W. WOODS, for defendant in eror. Errors assigned: 1. Judgment was taken by default, without any legal service of process on defendants, or either of them, or other legal notice. *2. In the plaintiff's petition, the defendant below *279 is charged in debt, and the judgment is rendered for a sum in damages. PER CURIAM, MASON, CHIEF JUSTICE.- This was a petition filed under the mechanics' lien law. The return of the sheriff shows that he made a service of the writ, by posting a copy on the property to which the lien attached, without stating that the defendant could not be found in his county. This was defective, and a judgment having been obtained by default, we think substantially erroneous. The statute only authorizes this mode of service where the debtor cannot be found in the county. See acts of 1840, page 78. The sheriff might have seen the defendants every day while the writ was in his possession, and still (i) This decision has no application to the mechanic's lien law now in force. See Revision, ch. 79. |