Walsh v. Texada's Syndic

Porter, J. delivered the opinion of court. The plaintiff seeks to make the estate of one Texada, deceased, responsible to him as joint purchaser of a tract of land which he acquired from M. Collins. The defendant denies any share of his intestate in the original contract, but contends the intestate bought, during his life time, the one half of the tract from the plaintiff. This difference between the parties, in relation to the manner in which the property was acquired, does not appear to arise so much from any contest between them as to the principal sum due, as from different stipulations in the contracts with regard to interest. In the deed by which the plaintiff acquired, he promised to pay at the rate of ten per cent. The sale to the deceased is silent on the subject. The petition states the fact of the plaintiff’s purchase—Texada’s participation in it—his failure to comply with his engagement—and the large sum in interest and costs which the petitioner had been compelled to pay. The [232] balance, after deducting two payments acknowledged to be made, is stated to be $3200. The answer consists of a general denial. On the trial the plaintiffs offered parol evidence to establish the partnership in the purchase of the land. The testimony, although objected to, was admitted; and in our opinion erroneously, for two obvious reasons;—-first, because it was contradicting the written act of the plaintiff, by which, as owner of the whole tract, he sold one half to the deceased; and second, because it was giving parol evidence of the alienation of immoveable property. But though the judge admitted the evidence he refused to sanction the conclusions which the plaintiff endeavored todraw fromit. Judgment was given for $2100,with interest at 5 percent. It is unnecessary for us to examine the correctness of the opinion given below, on the evioence there admitted. Rejecting it, as we are clear we must do, the judgment was correct. The amount of the purchase money was $3000—$900 is proved to have been paid, and the property being susceptible of producing fruits, interest was correctly charged at five percent. Flint for the plaintiff—Scott for the defendants. It is, therefore, ordered, adjudged, and creed, that the judgment of the court of probates be affirmed with costs.