This cause was tried by the circuit judge; and if the. legitimate evidence before him warranted his finding, the judgment must be affirmed, although improper testimony may have been admitted. The note was made payable “whenever^ the lands in the late purchase in Iowa Territory should be adver-( tised for sale.” It became due the moment the lands in that) purchase, or any part thereof, were proclaimed for sale. It was not necessary that all of them should be first offered for sale. The credit was given until the money could be invested in lands lying in that portion of Iowa. It is a fair inference from the whole case, that the payee intended so to invest the proceeds of the note. The maker was allowed to retain the money until it could be used for that purpose. Such, we doubt not, was the real understanding of the parties. The evidence clearly showed that a great portion of the land was in market, long before the action was brought upon the note. Several public sales of the land had previously taken place. It certainly was competent to prove this fact by parol. And this evidence dispensed with the necessity of direct proof, that the land had been advertised for sale by the order of the president. The presumption is, that the sales were made in pursuance of law; in other words, that the officers making them were acting in theline of their authority. It appeared that the contingency upon which the money was to become payable had happened; and the note was, therefore, properly received in evidence.
The case sufficiently shows that the plaintiff offered to perform the contract on his part. Before the commencement of the suit, he tendered the defendant a deed for the land; and the court held that it was such a deed as he was bound to make. The deed is not set forth in the bill of exceptions, but we must presume that it authorized the decision of the court. The ruling of a court must be sustained,"unless it affirmatively appears to be erroneous. In the absence of the deed, this court cannot say that it was improperly admitted; or that it was not such an instrument as the plaintiff" agreed to execute. In order to prevent any question as to its sufficiency, the deed should have been incorporated into the record.
The sale of a portion of the land for the taxes of 1843, constituted no defence to the action. The evidence authorized the conclusion that the defendant was in the actual possession of the land during that year, claiming the same under the contract; and it appeared that the land was listed for taxation in his name. This rendered him personally responsible for the taxes. An action of debt might have been maintained against him to recover them; or payment might have been coerced by distraining his goods and chattels. It may perhaps be, that, as between the parties, the plaintiff was at Jaw bound to keep down the taxes, inasmuch as he had agreed to make a good title at a future day. 'But the defendant was personally liable to the State for the taxes, and he should have discharged that liability, and looked to the plaintiff for the amount thus advanced. He had the means of indemnity in his own hands. He could properly claim a credit on the note, for so much money paid to the use of the plaintiff. The sale originated in his own wrong, and he should not be permitted to take advantage of it to defeat a recovery by the plaintiff. The case of Voris v. Thomas, 12 Illinois, 442, is conclusively in point.
The judgment is affirmed.
Judgment affirmed.