Andel v. Rooden ( 1871 )

Opinion oe the Court bt

Judge Peters:

Tbe prominent and controlling facts in this case are inconsistent •with the claim of appellant to the property in controversy.

After this suit was instituted he was warned by the attorney to defend for him, of i.ts pendency and objects, before the judgment for the sale of the property was rendered, and then made no defense, but contented himself by saying that Kloninger had some money of his, which he had been in possession of since 1860, but the amount he did not recollect, and gave his attorney no direction or authority to make any defense for him, and asserted no claim to the property. Nor did he, in that letter, claim to have advanced any money to pay for the property.

The surety for the purchase money was procured by Kloninger, and money to make payment borrowed by him, and the' facts developed show that appellant was not in condition to take money from his business to invest in real estate. Tbe $600 which he professes to have advanced were borrowed, according to his own showing, $1,000 for the second installment were borrowed by Kloninger from the Farmers’ Bank without any effort on his part to raise the money, and these two sums were not equal to the purchase price, and it can not be credited that he had money to invest in real estate in a city in a different State and remote from his business and residence when the greater part, indeed all but about $300 of the purchase price was borrowed, and that refunded by installments and renewal of the notes.

Rodman, for appellant Vance & Teaman, for appellee.

Besides, the account that Kloninger gives of the money advanced is complicated, inconsistent with itself, and unsatisfactory.

We, therefore, concur in- the opinion of the court below, and adjudge that the judgment should be affirmed.