Topper v. Snow

Caton, C. J. This was an action upon several promissory notes. The defendant filed a plea of the general issue, and also a plea of part failure of consideration, setting out a written contract between the parties, bearing even date with the notes, reciting a conveyance of certain lands by quit-claim deed, and an agreement to give a warranty deed for the same land, in case the grantor should obtain a tax deed. Avers that the notes were given for this land, and that the plaintiff had obtained the tax deed, and had neglected to make the warranty deed, etc. The plaintiff, in his replication, denied that the notes were given for the land, but avers the tender of the warranty deed. The case was tried by the court, who found for the plaintiff, for the amount of the notes, which decision is now assigned for error. The court was certainly bound to find the issue for the plaintiff. The contract, as set out in the plea, does not show or intimate that the notes were given for the land in the contract and plea mentioned, nor is there a particle of evidence in the case showing for what the notes were given. That contract also has a provision to deduct from the notes, in case the land shall be redeemed from a tax sale to Snow, but makes no reference to the notes in case it is not redeemed, and in that event, it obliges Snow to get a tax deed, and convey, by warranty deed, to the defendant. That part of the contract is perfectly independent of the notes, and that is the part which, in the pleá and upon the trial, it was complained had been broken by the non-delivery of the warranty deed. That part of the contract has no connection with the latter part, which provided for a certain reduction on the notes, in case the land should be redeemed, any more than as if they had not been upon the same piece of paper. The plea is based upon that first part, averring that the notes were given for the land, and that the consideration had failed because the deed was not made. The issue was, that the notes were not given for the land, and the affirmative of this issue was on the defendant, and he failed to produce any evidence in support of his plea. There was nothing left for the court to do, but to find the issue against him. Even had the defendant set up a defense under the latter part of the contract, claiming a reduction on the notes, by reason of a redemption of the land from the tax sale, he must have failed in this, for the reason that there was no proof of such redemption, and consequently, no right to claim the reduction. The judgment must be affirmed. Judgment affirmed.