Mitchell v. Dibble

Perkins, J.— Suit upon a promissory note, given for the last installment of the purchase-money for a tract of land. Answer, denying a tender, or offer of a tender, of a deed, and setting up an outstanding mortgage. Issues of fact upon the paragraphs of the answer. The cause was tried by the Court. Judgment-for the plaintiffs. It is urged by the appellants that improper testimony was admitted, as appears by points reserved during the progress of the trial; but the bill of exceptions is not ^o made as to distinctly present the points, and there is no statement of the Court of such facts as may have existed rendering the admission of the evidence proper or improper. See 2 R. S. p. 116, § 347. There is another bill of exceptions containing evidence; but it does not state that the evidence set out in it “was [527] all the evidence given in the cause.” Hence, we cannot say that the evidence is before us, and must, therefore, presume it sustains the judgment of the Court. We have, however, looked through the evidence contained in the bill. It does not appear by the bill that any exception was taken to any part of it, and we think its weight, in the aggregate, tends to justify the finding below. B. F. Gregory and J. Harper, for the appellants. R. A. Chandler, for the appellees. As a general proposition, an outstanding mortgage, where there has been no ouster of the purchaser holding under a deed, is no bar to a suit for purchase-money. Reasoner v. Edmundson, 5 Ind. R. 393. Per Curiam. The judgment is affirmed with 3 per cent, damages and costs.