Kimball v. Dreher

Mathews, J. delivered the opinion of the court. This action is founded on a synalag-tnatic contract, made between the plaintiff and the ancestor of the defendant. The answer to the petition, contains a general denial, and an exception to the instrument, declared on as not having been made in duplicate, being executed under private signature. The court below gave no opinion on the alleged nullity of the written agreement, in consequence of its want of duplicity. It was considered as imposing obligations on the plaintiff, to be by him discharged before he could claim the fulfilment of those contracted on the part of the defendant; in other words, a condition precedent of acts to be done by the petitioner, of which he neither averred or proved the performance. Judgment of non-suit was rendered by the district court, from which the plaintift appealed. The contract relates to a tract of land, said to be situated in the parish of East Feliciana, [211] on the east side of the river Comite. It is ...... . . , , not very explicit, either m relation to the subject about which the parties contracted, or the obligations which each of them took separately on himself From the tenor of their agreement, it seems that they had distinct pretensions or claims to the same piece of land, and that they considered it as a matter of doubt, which would succeed before the commissioners of land claims. The defendant (or rather his ancestor) was an actual settler on the public domain, and claimed a donation under settlement right, from the United States, in pursuance of the act of congress of 1819. The plaintiff pretended to have some other species of claim, but of what nature, the evidence on record affords no information: he, however, bound himself to be at the expense and trouble of entering the claims to the land in the register’s office, fyc. There is neither averment nor proof, that he ever performed this part of his obligation. Whether he ever had any semblance of right or claim to the land in question, sufficient to form a basis of good faith, for the contract which was entered into between the parties, is not shewn in any manner whatever. In the [212] event of süccess in his claim, he promised to convey to the ancestor of the defendant, one hundred and fifty acres; and the latter agreed, that if he obtained a donation, the former should be entitled to one half of the land thus acquired. Now it is evident, from this agreement, that they took.the chance, reciprocally, of each other’s claims; and both should have been prosecuted before the commissioners, which the plaintiff undertook to do, and which is not proven to have been done by him; for it does not appear, that the certificate of donation, obtained on the part of Dre-her, was acquired by any aid given by the ’ V. « . . . , , x appellant. We are of opinion, with the court below, that the plaintiff has failed to make out . his case. If the plaintiff doe* not make judgment of non-anit will be given. It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.