Reynolds v. Harris

Burnett, J., delivered the opinion of the Court—Field, J., concurring. The defendant, on the 5th day of December, 1854, verbally agreed with the plaintiff to sell him a house and lot, and certain furniture in the house, for the sum of $800—$400 to be paid at the time, and the remainder on the 1st day of June, 1855. The defendant was to make to plaintiff a good and sufficient title to the premises, within thirty days from the date of the agreement. The plaintiff at once took possession of the house, lot, and furniture, with the permission of the defendant. After the expiration of the thirty days, the plaintiff demanded of the defendant a good and sufficient title, stating that he was ready to perform his part of the agreement; but the defendant failed to make the title. The defendant had no title to, but a mortgage upon the premises, which he proceeded to foreclose; and, under the decree, they were sold and purchased by the defendant, but were redeemed within six months by a lawful redemptioner. On or about the 1st day of December, 1855, the redemptioner demanded the possession of the promises of plaintiff, and the plaintiff thereupon left the same. It appeared that the personal property in the house, at the time of the agreement, was of the value of $200—a portion of which was afterwards, and while in plaintiff’s possession, destroyed by fire. On the day of the surrender of the real estate to the redemptioner, personal jiroperby, of like character, and of equal value, was deposited in the house by the plaintiff, and the defendant notified of the fact; and that the [340]same was placed there to be disposed of by him as he might think fit, and that plaintiff relinquished to him all title to the same. During the time the plaintiff occupied the house and lot, he made improvements upon the same to the value of $300; and the monthly rents were of the value of $60. Plaintiff demanded of the defendant the money paid by him upon the purchase, but the defendant refused to return the same. This suit was commenced on the 31st of March, 1856. At the January Term, 1856, of the Court, the plaintiff commenced a suit against the defendant for the same cause of action. The case was tried before a jury, and a verdict and judgment were had, at that term, for plaintiff. The defendant moved in arrest of judgment, because the complaint did not state facts sufficient to constitute a cause of action; and the judgment was arrested on the 21st day of April, 1856, and nothing further was done in that case. In the present suit, the defendant plead the pendency of the former suit, in abatement. The judgment in this suit was rendered for the plaintiff, July 22d, 1856, and the defendant appealed.