I concur generally in the opinion delivered by Mr. Justice Wheeler; and I concur also' in the views expressed by Mr. Justice Lipscomb ; and I express this concurrence, in order that there maybe no misapprehension as to my own opinion as to the extent of the principle settled by the decision and the grounds upon which it is based. As to the burthen of proof, where the title is attacked or lands denounced for the want of performance of conditions, I apprehend that would depend upon the character of the conditions. If they be precedent, the party who sets up the title must show performance; if subsequent, the onus rests upon the party alleging the failure; or if the title became absolutely null upon the non-performance, the party claiming under it must prove fulfillment of the conditions. For instance : on the sale of lands under decree Mo. 272, titles were ordered to be extended, and the purchase-money to be paid in three installments, under the penalty of forfeiting what had been paid, and of becoming null in case of non-fulfillment, (art. G, p. 248, Laws of <3. & T.;) and the receipts for the purchase-money were ordered to be written out at the bottom of the titles. (Art. 18, p. 259, Laws of C. & T.) Such title, without the receipt, or at least without proof of payment, would be a mere nullity, and prove nothing.
Judgment affirmed.