delivered the opinion of the court. The plaintiff claims a balance due on the defendant's promissory note, with conventional interest; and prays for the sale of a tract of land mortgaged therefor.
The defendant resists the plaintiff's demand, on an allegation of the failure of the consideration of the contract, on which the note was given.
The plaintiff had judgment, and the defendant appealed.
The note sued on, was proven by one of its subscribing witnesses.
The case presents two questions:
The first is, in relation to a claim for conventional interest, after the first instalment due, on the land for which the note here sued on was given. The defendant wrote the plaintiff, that he would pay ten per cent. interest on all defalcations, and begged indulgence. This promise we understand with the district judge, referred to the note then due, and not that on which this action is brought, and which did not become payable until several months after.
The second is a demand for a deduction in the price, by a failure of the consideration. It is proved that the defendant is in possession of the whole tract sold him. There is no means furnished by the evidence to enable us to try whether the titles which he sets up against his vendor are better than that which he holds. No suit has been commenced against him. We do not know that the person in whom these adverse titles are vested, will ever disturb him.
It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.