Scott v. Perkins

Maxwell, J.

Scott purchased a tract of two hundred acres of land of Charles T. Perkins, for the sum of 1,400 dollars, for which he paid Perkins at the time of the purchase 200 dollars, and executed to said Perkins bis bond for 800 dollars, and executed his other bond to Jane Perkins, wife of the said Perkins, for 400 dollars, residue of the purchase money.

When the 800 dollar bond became due, and payable, Perkins, for the use of Ewing and wife, obtained a judgment upon it against Scott. Scott filed his bill to enjoin the collection of said judgment, alleging that the contract was made with reference to confederate money, and is for that reason void, and also alleging that 60 acres of the 200 sold belong to the said Jane Perkins, who now refuses to join in a conveyance of her title thereto.

An injunction was allowed, but upon the hearing was dissolved, and the bill dismissed. There is nothing in the case to support the complainant’s idea that the contract was made with reference to confederate money, and is for that reason void.

It appears, from the case, that Mrs. Perkins is the owner of 60 acres, part of the 200 acre tract sold by her husband. It also appears that she still holds the 400 dollar bond on Scott, which, it appears from the evidence, was executed to her, in consideration of the said 60 acres of land.

After the 800 dollar bond came into the hands of Ewing and wife, and after he had notice of the fact, Scott re-delivered the possession of the land to Perkins.

The evidence shows that the 60 acres owned by Mrs. Perkins is of an average value with the rest of the tract.

There is no averment in the bill that a portion of the land owned by Mrs. Perkins, and which she now refuses to convey, was the inducement for the purchase, or that the residue of the tract cannot be advantageously enjoyed by the purchaser, nor is there any proof to this effect. Under the circumstances of this case, the court decided properly, when it dissolved the injunction and dismissed the bill.

The 400 dollar bond, in the hands of Mrs. Perkins, appears to be ample to indemnify Scott for the 60 acres of land which he cannot get, and should any attempt be made to collect the amount of it, such collection should be restrained, if the facts then appear, as they do now, in the case before us.

The decree complained of ought to be affirmed, with damages and costs to the appellees, Perkins and wife.

The other judges concurred.

Decree affirmed.