Knisely v. Williams

Allen, J. delivered the opinion of the Court. The Court is of opinion, that as it appears the appellant John took the order in the proceedings mentioned, in consideration of the bond for the purchase money then due, the taking of such order did not extinguish the right to hold the land subject to the payment of the purchase money, if the order was not accepted; and that, upon the failure of West to accept the order, the appellants had an immediate right to proceed against said Maxon for the amount due. The Court is therefore of opinion, that the said Circuit Court erred in sustaining the demurrer to the supplemental bill, and in dismissing the said supplemental and original bills with costs. Therefore it is adjudged, ordered and decreed, that the said decree of the Circuit Court bo reversed and annulled, and that the appellees pay to the appellants, their costs by them expended about the prosecution of their appeal here. And this Court proceeding to render such decree as the said Circuit Court ought to have rendered, it is adjudged, ordered and decreed, that the demurrer of said West to the supplemental bill be overruled, and that said West answer over. And it is further adjudged, ordered and decreed, that the said T. Maxon pay to the appellants the sum of 125 dollars, with interest from 1st October 1839 till paid; and their costs in said Circuit Court expended. And it is further adjudged, ordered and decreed, that the appellants do make and execute a deed conveying the land in the title bond mentioned to- the appellee, [270] Hannah Williams, with covenants of warranty according to the provisions of said title bond, and acknowledge the same iu order to be recorded, and upon filing gQ executed and acknowledged, amongst the PaPers the cause, unless said Timothy Maxon, or some person for him, shall pay said debt,- interest and costs herein decreed against him, within 30 days after such deed shall have been so filed, that then the sheriff of Harrison county, who is hereby appointed a commissioner for that purpose, after advertising the time and place of sale for four weeks successively, &c. proceed to sell said land at six and twelve months, takiug bonds with security, and retaining a lien for the payment of the purchase money, and report, &c. And leave is reserved to the appellants to proceed against said West in the event of this decree proving unavailing in whole or in part.