Branham v. Cossett

Perkins J. Suit to foreclose a mortgage; judgment for plaintiff. It appears that on April 1,1859, Harrison Sloop [503] mortgaged a tract of land to Pearl 8. Gossett, to secure the payment of a sum of money. Afterward, William II. Bran-ham purchased of Sloop his equity of redemption. Gossett now files his complaint for foreclosure, making Sloop and Branham defendants. Sloop makes default. Branham makes this defense, viz., he answers to the complaint that Gossett purchased the land of the Fort Wayne and Southern Railroad Company, whose title came to be disputed, whereby the land would be unsaleable, and might fail to bring the amount due on Gossetls mortgage. And that, subsequently, it was agreed between the plaintiff, Gossett, and the defendants, Sloop and Branham, that in consideration that Bran-ham would purchase said real estate, and assume the payment of said mortgage, Gossett would procure the execution of a quit claim deed of said real estate from one Schryer, to Branham, Schryer being the prior owner, and grantor of the railroad company, and would extend the time of payment of said mortgage from Sloop, and delay its foreclosure, till said quit claim deed was obtained from Schryer and delivered to Branham; whereupon, in consideration of said promises, Branham purchased the equity of redemption of Sloop, and received a deed subject to said mortgage; and has been at all times, and still is, ready, &c. to perform on his part; but said Gossett has not, as yet, procured and delivered said quit claim deed, &c. ' Such is the substance, without the particularity of detail, of the answer. To this answer a demurrer was sustained, and the plaintiff had final judgment. Bran-ham excepted. II. TE Harrington and J. H. Vawter, for the appellant. II. O. Hewcoml and J. Tarldngton, for the appellee. It is manifest, from the statement of the case, that it falls within Loomis et al. v. Donovan, ante, p. 198, and that the demurrer to the answer should have been overruled. Per Curiam. — The judgment is reversed, with costs. Cause remanded for another trial.