Waterhouse v. Pompey , 3 Teiss. 323 ( 1906 )

DUFOUR, J.

The plaintiff alleges that, on May 16th, 1904, he entered into an agreement to sell defendant certain real estate, in consideration of the sum of $150 to be paid in instal-ttlénts of $5, pef month, $2ó of which havé heéil paid.

April 30th, 1906. Rehearing refused May 14, 1906.

He further avers that the failure to pay other instalments is a ground for forfeiture of the agreement and entitles, him to a rescission afld to a re-entry into possession of the property.

The contract is annexed to the petition and sustains the forgoing allegations.

The defendant admits having agreed to purchase the property from the plaintiff and having paid $20 on account, but claims that the purchase was made through ignorance of her rights under the belief that plaintiff was the owner, whereas, in point' of fact she was the owner by inheritance from her mother.

Neither party offered any evidence, and the District Court gave the plaintiff judgment, rescinding the agreement and ordering delivery of possession.

The sole question presented Is, on whom, under the pleadings, is the burden of proof.

We are of opinion that it was upon the defendant.

She admitted plaintiff’s .ownership and made payments oil account of her sale and made no pretence of disputing the signature to the written contract.

This is certainly a prima fací case for plaintiff’s find defendant’s plea is in the nature of a confession and avoidance.

To Sustain her contention, she should have proved her ignorance Of her right and the fact that she inherited the property from her -mother. The admissions are conclusive, even though the contract be rejected as not filed.

Judgment affirmed,