Hancock v. Cloud

Warner, Chief Justice.

It appears from the record that Noah Cloud brought suit on two notes for $227.35, each against Jas. M. .Hancock. ' Hancock filed his pleas that the notes were given for land formerly belonging to the estate of James Cloud ;. that Noah Cloud was the administrator of James Cloud, and purchased the land at his (the administrator’s) sale-through one Causey, and then sold the land to Hancock, for which the notes sued on were given. Hancock has paid $340.00 cash for the land. At time of trade, Hancock knew that Noah Cloud had purchased the land at his own administrator’s sale, but did not know the legal effect of such a purchase, and did not know that Noah-Cloud had not paid for the land, and had not settled with the heirs of^James Cloud; that Noah Cloud is insolvent; Hancock did not know that Noah Cloud was insolvent at. time of the trade.

The plaintiff demurred to the defendant’s plea, which was sustained, and the defendant excepted.

Noah Cloud never made Hancock a deed. Hancock offers to pay balance of purchase money if the sale by the administrator to him be ratified and confirmed by the heirs, and offers to rescind the trade and surrender up the land.

1. There was no error in sustaining the demurrer to the defendant’s plea on the allegations contained therein. It does not appear therefrom that the securities on the administrator’s bond are insolvent, or that the defendant has been disturbed in any manner in the enjoyment of the land for which the notes were given, or that he ever will be.

2. This case was brought here under the act of 1877, and a motion was made to dismiss it on the ground that the delay in not sending it up sooner by the clerk was caused by the act of the plaintiff in error or his counsel, and defendant in error sought to prove that fact by evidence aliunde the record. Whilst it would be competent for the clerk to certify in his certificate to the record the cause of the delay, in view of the provisions of the act of 1877, yet aliunde evidence of that fact cannot be received.

Let the judgment of the court below be affirmed.