Letcher v. Tolle ( 1871 )

Opinion oe the Oouet bt

Judge Haedin :

The costs and expenses of defending and prosecuting suits, after the appellant purchased .the land, had no connection with the consideration of the sale bonds, and as the appellee was not a grantor or warrantor in tbe deed of Thomas H. Letcher’s heirs, by commission to the appellant, Thomas O. Letcher, it is. not, perceived how these claims could constitute any ground for enjoining the balance of the purchase money. Nor can we decide from the record before us, that the petition discloses any available ground for crediting or abating the unpaid sale bond for the alleged failure of consideration, in consequence of the adverse claim and possession of Scott and others. The suit of Myer’s Admr. vs. Letcher’s heirs, referred to as part of the petition, to show what were the terms and particular character of the sale, and from which claim the court could determine whether or not a sufficient defense is presented for a partial failure of considera; tion, is not copied in the record. If it was it might show the sale to have been one in gross only of so much land as belonged to Letcher’s heirs, and not intended to embrace the lands of others in their adverse possession,, and that the circuit court properly dissolved the injunction and- dismissed the actionwhich we must presume it did, is the absence of a transcript of the suit, which constituted so important a part of the petition.

James, for appellant. Leslie for appellee.