Clark v. Clark ( 1853 )

The opinion of the court was delivered

by Knox, J.

— This is an action of covenant on articles of agreement for the sale of land.

The defence is, that the land was sold on a judgment entered against the vendor subsequent to the agreement.

To sustain this, the plaintiff below relied upon the fact, that, at the time of the sheriff’s sale, there was more than sufficient due upon the article of agreement to have paid the incumbrance upon which the sale was made; and that the defendant, instead of paying the judgment, suffered the land to be sold, and subsequently re-purchased it from the sheriff’s vendee at a price greatly below its value.

The court below charged the jury, that if Lawrence Clark, the vendee, had in his hands sufficient of the consideration-money to discharge the incumbrance on which the land was sold, the plaintiff was entitled to recover. This is assigned for error. But under the authority of several adjudicated cases, particularly Harper v. Jeffries, 5 Wharton, 26, and Garrard v. Lantz, 2 Jones, 186, the instruction was correct.

There is nothingjn the remaining assignments of error. The facts which related to the amount of payments upon the article were fairly submitted to the jury.

Judgment affirmed.