Gilchrist v. Dandridge , 1 Minor 165 ( 1823 )

JUDGE Minor

delivered the opinion of the Court.

This was an action of Debt by Malcolm Gilchrist against Nathaniel W. Dandridge, in the Circuit Court of Morgan County, on a Bond for $246, payable ist day of Janua ry, T820. Dandridge plead that the Bond was given for part of the price of a quai’ter section of land sold to him by Gilchrist, at which sale Gilchrist gave his Bond, binding himself to transfer to him the Register’s certificate for this quarter section, and leave the same with John Martin, in the Receiver’s office at Huntsville, on or before the 1st of May, 1819. That the plaintiff did not, on or before this day, so transfer and leave the certificate with Mr. Martin ; by reason whereof the consideration of defendant’s Bond has wholly failed. Gilchrist demurred to this plea. , Ílíe Circuit Court overruled the demurrer and rendered judgment for the defendant: which matter Gilchrist here assigns as Error.

The facts stated in the plea do not shew a total failure 'of the consideration of the Bond declared on. It does hot appear that Dandridge has not had quiet and uninterrupted -possession of the land. For aught that appears, he may, since the first of May, have received the certificate with the assignment. The assignment may have been made before, though not left with Mr. Martin by that day. If the failure ’to transfer and deposit the'certificate on or before the appointed day occasioned a total failure of the object of the purchase, it should have been distinctly so shewn by the plea. The defendant has his remedy on the plaintiff’s Bond for any anjury he may have sustained by the plaintiff’s •failing to deposit the certificate by the appointed day: but this circuihstance is not of itself sufficient to rescind this contract.

The judgment of the Circuit Court must be reversed, and •judgment for the plaintiff rendered here.

-Judge Ellis not sitting.