It appears to ns that the evidence was clearly insufficient to show that the consideration money mentioned in the deed had not been paid. The transaction detailed by Patrick Dockery, abont passing around money at the time the deed was drawn, is incomprehensible. It would be uusafe aud dangerous to decree a vendor’s lien, after such a lapse of time, upon such slight testimony as we find in this bill of exceptions.
But it is said that this was a matter for the jury to determine, whether the consideration had been paid or not, and that if there was any evidence which, by the most favorable construction, would sustain a verdict for the plaintiff, the cause should have gone to the jury. But the cause was one in equity, and a verdict of the jury even, in favor of the plaintiff, would not have been binding upon the judgment and conscience of the court. On the contrary, it would have been the duty of the court to give a judgment against the finding of the jury, if it thought the verdict unsupported by the evidence. And it seems to us the testimony in this case is entirely too weak, dubious and incomplete to sustain a judgment establishing a vendor’s lien upon the land, or even adjudging any indebtedness on the part of the defendant.
By the Court. — The judgment of the circuit court is affirmed.