While the parties to a contract may make such terms and select such consideration as they choose, the consideration selected must be the forbearance or acquisition of some legal right. If they select something which is not a legal right, the acquisition or forbearance of it constitutes no consideration, though the parties may believe otherwise. Thus a transfer of property is a consideration,1 but if a vendor has no interest of any sort in such property, an attempted conveyance thereof is no consideration.2 Thus a sale by an individual of vacant public land,3 as where the vendor has neither possession of such land nor right therein,4 and has merely hopes of getting such land;5 or a sale of improvements thereon;6 or of land to which the vendor holds a government homestead certificate which he has forfeited by abandoning the land before remaining there the necessary period of five years,7 are not considerations, and a promise to pay rent to one who has neither title, right of possession nor possession, has no consideration.8 Surrender of rights under a mining lease, invalid as being a verbal lease made by an unauthorized agent, is not a consideration.9 So a promise to exhaust the corporate property before proceeding against the stockholders for their unpaid stock subscriptions, where the statute provides that the corporate assets must first be exhausted, is not a consideration.10 Money paid as "part payment on stock * * * to be issued shortly," the officers who gave such receipt having no authority to bind the corporation to issue such stock, is paid without consideration.11 Forbearance, waiver, and the like, are considerations where a right is asserted in good faith,12 but if the forbearance is of what the promisee has no legal right to do,13 as an

1 United States. Prewit v. Wilson, 103 U. S. 22, 26 L. ed. 360.

Connecticut. Andrews v. Andrews, 8 Conn. 79.

Illinois. Parsons v. Ely, 45 111. 232; Barth v. Lines, 118 111. 374, 59 Am. Rep. 374, 7 N. E. 679.

Indiana. McNutt v. McNutt, 116 Ind. 545, 2 L. R. A. 372, 19 N. E. 115; Marmon v. White, 151 Ind. 445, 51 N. E. 930.

Iowa. Jacobs v. Jacobs, 42 la. 600.

Kentucky. Kinnard v. Daniel, 52 Ky. (13 B. Mon.) 496.

Maine. Whitehouse v. Whitehouse, 90 Me. 468, 60 Am. St. Rep. 278, 38 Atl. 374.

Maryland. Dugan v. Gittings, 3 Gill (Md.) 138, 43 Am. Dec. 306.

Missouri. Nowack v. Berger, 133 Mo. 24, 54 Am. St. Rep. 663, 31 L. R. A. 810, 34 S. W. 489.

New Jersey, Mellick v. Mellick, 47 N. J. Eq. 86, 19 Atl. 870; American Surety Co. v. Conway, 88 N. J. Eq. 370, 102 Atl. 839.

New York. Wood v. Jackson, 8 Wend. (N. Y.) 9, 22 Am. Dec. 603; Pierce v. Pierce, 71 N. Y. 154, 27 Am. Rep. 22; De Cicco v. Schweizer, 221 N. Y. 431, 117 N. E. 807.

North Carolina. Gurvin v. Cromartie, 33 N. Car. (11 Ired. Law) 174, 53 Am. Dec. 406.

Ohio. Finch v. Pinch, 10 O. S. 501.

Pennsylvania. Shea's Appeal, 121 Pa. St. 302, 1 L. R. A. 422, 15 Atl. 629

West Virginia. Beard v. Beard, 22 W. Va. 130; Boggess v. Richards, 39 W. Va. 567, 45 Am. St. Rep. 938, 26 L. R. A. 537, 20 S. E. 599.

2 Barnes v. Barnes, 110 Cal. 418, 42 Pac. 904; Whitehouse v. Whitehouse, 90 Me. 468, 60 Am. St. Rep. 278, 38 Atl. 374; Finch v. Finch, 10 O. S. 501.

3 Wright v. Wright, 114 la. 748, 55 L. R. A. 261, 87 N. W. 709; Thompson v. Thompson, 17 O. S. 649; Cains v. Jones, 11 Tenn. (5 Yerg.) 249. Where the settlement is made after the agreement to marry is entered into, it may be questioned whether the settlement has any consideration as the parties do only what they have bound themselves to do. See Sec. 589 et seq. However, such settlements are held to be for value.

4 McNutt v. McNutt, 116 Ind. 546, 2 L. R. A. 372, 19 N. E. 115.

1 See Sec. 542 et seq.

2 Conqueror Gold Mining & Milling Co. v. Ashton, 39 Colo. 133, 90 Pac. 1124.

3Rayner Cattle Co. v. Bedford, 91 Tex. 642, 45 S. W. 554 [refusing writ of error to 44 S. W. 410].

4 Smith v. Rankin, 10 Tenn. (4 Yerg.) 1, 26 Am. Dec. 213.

5Telfener v. Rubs, 162 U. S. 170, 40 L. ed. 930.

6 Carson v. Clark, 1 Scam. (111.) 113, 25 Am. Dec. 79.

7McCollum v. Edmonds, 109 Ala. 322, 19 So. 501; Sumpter v. Bank, 69 Ark. 224, 62 S. W. 577.

8 Clary v. O'Shea, 72 Minn. 105, 71 Am. St. Rep. 465, 75 N. W. 115.

9 Conquerer Gold Mining & Milling Co. v. Ashton, 39 Colo. 133, 90 Pac. 1124.

10 First National Bank v. Lehnhoffs Estate, 77 Neb. 303, 109 N. W. 164 [affirmed on rehearing, First National abandonment of an effort to obtain a change in the will of another;14 or a promise not to issue execution on an alleged judgment which clearly has no existence;15 or satisfying an execution which has been perpetually enjoined;16 or consent by one joint owner to a transfer of the interests of the other owners;17 or a refusal by one joint owner of an offer for the property;18 or permission to give to the adversary party an opportunity to examine her own books of account;19 or to forbear obtaining an attachment;20 or the act of a confidential agent in forbearing to induce the principal to cancel a contract to buy land, as a consideration for a promise to pay such agent one-half of the commissions;21 or a promise to waive the right of appeal after the period within which an appeal could be taken has expired;22 or forbearance by a trade union to prevent its members from working with one who was not yet a member;23 or to accept a different kind of performance from that agreed upon, the adversary party being left free to perform in accordance with the terms of the original contract if he wishes,24 no consideration exists. If a bank does not obtain control of its debtor's funds, no consideration exists for its promise to apply such funds to certain specified debts on which the promisee was liable as surety.25 So if there is no genuine dispute and no cause of action, a promise to forbear suit,26 or a promise to waive a claim which is void and can not be maintained in good faith,27 are neither of them considerations. Thus the seduction or alienation of affections of a woman is no consideration for a note given by the seducer to her affianced.28 Since, in the absence of special contractual provisions, a broker does not owe to his principal the duty of compelling performance of the contract on the part of the purchaser whom the broker has secured, no consideration exists for the broker's promise to pay one-half of the costs of an action which his principal has brought against the purchaser to enforce the contract of sale.29 Magic is now regarded as nothing having existence or possessing value;30 and a note which A gives to B in consideration of certain "conjurations," by which B claims to have cured A, is without consideration.31

Bank v. LehnhofFs Estate, 77 Neb. 307, 112 N. W. 563].

11 Wolf v. Chicago Sign Printing Co., 233 111. 501, 94 N. E. 614 [reversing . Chicago Sign Printing Co. v. Wolf, 135 111. App. 366].

12 See Sec. 612 et seq.

13 England. Graham v. Johnson, L. R. 8 Eq. 36.

Alabama. Kenan v. Holloway, 16 Ala. 53, 50 Am. Dec. 162.

Massachusetts. Palfrey v. Ry. Co., 86 Mass. (4 All.) 55.

Missouri. Long v. Towl, 42 Mo. 545, 97 Am. Dec. 355.

North Dakota. Silander v. Gronna, 15 N. D. 552, 108 N. W. 544.

Pennsylvania. Lennig's Estate, 182 Pa. St. 485, 61 Am. St. Rep. 725, 38 L. R. A. 378, 38 Atl. 466.

Wisconsin. Hibbert v. Mackinnon. 79 Wis. 673, 49 N. W. 21.

14Lennig's Estate, 182 Pa. St. 485, 61 Am. St. Rep. 725, 38 L. R. A. 378, 38 Atl. 466.

15 Price v. Bank, 62 Kan. 743, 64 Pac. 639.

16 Kenan v. Holloway, 16 Ala. 53, 50 Am. Dec. 162.

17Hibbert v. Mackinnon, 79 Wis. 673, 49 N. W. 21.

18 Chase v. Soule, 76 Vt. 353, 57 Atl. 754.

19Massachusetts Mut. Life Ins. Co. v. Green, 185 Mass. 306, 70 N. E. 202.

20Wierman v. Bay City, Michigan, Sugar Co., 142 Mich. 422, 106 N. W. 75.

21 Fox v. Seabury, 211 Pa. St. 140, 60 Atl. 508.

22 Denny v. Bean, 51 Or. 180, 93 Pac.

693 [modified on rehearing, 51 Or. 180, 94 Pac. 5031.

23 Levin v. Cosgrove, 75 N. J. L. 344, 67 Atl. 1070.

24 Farley v. Letterman, 87 Wash. 641, 152 Pac. 515.

25 Bank v. Mahon, 78 S. Car. 408, 59 S. E. 31.

26 Newell v. Fisher, 11 S. & M. (Miss.) 431, 49 Am. Dec. 66; New Hampshire Savings Bank v. Colcord, 15 N. H. 119, 41 Am. Dec. 685.

27 Herbert v. Mueller, 83 111. App. 391; Corbyn v. Brokmeyer, 84 Mo. App. 649.

28 Case v. Smith, 107 Mich. 416, 61 Am. St. Rep. 341, 31 L. R. A. 282, 65 N. W. 279.