Keyes's Appeal

The opinion of the court was delivered, July 7th 1870, by

Read, J.

Lester Parish and Daniel J. Keyes being then in partnership purchased from one James Baker in 1852 his interest in 155 acres of land, in the township of Eldred, McKean county, for $300, and gave the said Baker their joint promissory note therefor, payable within one year thereafter.

The title to said land was then in W. K. King, and on the 1st March 1853 the said partners made a contract in writing with him for said land for $845.38, payable in instalments, running to the 1st March 1857 with annual interest.

After this purchase from King, the said Parish and defendant dissolved partnership by agreement, said Keyes taking all the partnership effects, and assuming to pay all the partnership debts, except the unpaid purchase-money, on the land aforesaid to the said King and Baker. That was assumed to be paid by the said Parish, and defendant was to release his interest in said land to said Parish.

By an agreement in writing on the 12th October 1859, Keyes covenanted, that when Parish should release him (Keyes) from all obligations given for said land, that then the said Keyes should assign all his right, title and interest, in and to the said land, to said Lester Parish.

Parish sold 50 acres from the south part of said land to John Parish, and Keyes released his interest in the same to said Parish, and King executed a deed to him therefor.

Lester Parish died in January 1867, leaving a widow and two minor children, he having been in his lifetime in possession of the said 105 acres, as his widow and heirs have been since his decease. The said Lester Parish in his lifetime and his administrators since his decease have paid the whole purchase-money to said King in full for the said 155 acres.

Soon after the giving of the note to Baker, he left the country, and neither he nor the note has ever been heard of since, and unless under seal, of which there is no evidence, has long been barred by the Statute of Limitations.

The defendant has therefore been released from all obligations given for the said property by the payment to King, and the note to Baker being completely barred by the Statute of Limitations.

The plaintiffs therefore, upon giving a proper indemnity, are entitled to a full assignment and conveyance, by the defendant, of all his interest in the said 105 acres.

The objection of the defendant that the note is still outstanding is unreasonable, because no one knows where the note is, nor can say whether it is in existence or not. As therefore it is impossible to pay the note, and as it is almost certainly barred by the Statute of Limitations, there being no proof whatever that it was under seal, the only proper course for a court of equity is to take a proper indemnity from the plaintiffs against the said note.

The decree of the court below effects this object.

Decree affirmed and appeal dismissed at the costs of the appellant.