7 Ky. 249 | Ky. Ct. App. | 1815
French having entered into a written contract with John Edwards, for one half of an entry of 200 acres of land, lying in Madison county, sold the benefit of the contract to Orear for $60, payable in a horse, for which Orear executed his note to French, and the latter gave up to Orear the contract with Edwards, and a letter
To be relieved from the judgment, Orear filed his bill, alleging that the entry in the name of Edwards had been withdrawn, and charging French with a knowledge of. its withdrawal previous to the contract with him. French in his answer denies the charge of knowing that the entry had been withdrawn, and retorts it upon Orear.
The fact of the withdrawal of the entry, was not contested, and the court below being of opinion that both parties were equally ignorant of the fact, decreed relief to Orear, upon the ground that the consideration of the note given hy him to French had failed. To reverse that decree French has prosecuted this writ of error.
There is certainly no evidence in the cause which will authorise a conclusion that French was apprised, at the time of the contract between him and Orear, of the withdrawal of the entry in the name of Edwards. Nor is there sufficient evidence to justify us in saying that Orear had a knowledge of that fact. For though French has taken 'some testimony for that purpose, yet when taken in connection with the opposing evidence, it does not satisfactorily establish the fact.
We shall therefore assume, as the court below did, that both parties were equally ignorant of the withdrawal of the entry. But assuming Ibis to be the state of fact, we cannot accord with that court in supposing that Orear is entitled to relief on the ground of the failure of consideration. Had the entry been the immediate subject of the contract between French and Orear, as that had been withdrawn, and was therefore a mere nullity, it might have been said with propriety that there was a failure of consideration. But the entry was not the immediate subject of their contract, it was the contract between French and Edwards which formed the subjects
The decree must be reversed with costs, and the cause remanded that a decree may be entered dismissing the bill and dissolving the injunction with costs and damages.