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Hanson vs. Bowyer.

Payne's debt should be paid before that of Prewitt; but that, as Wickliffe's claim is said to be superior to all the others, the fund shall be held undistributed until Wickliffe's claim shall be adjudicated upon. There was no personal judgment against Hanson, nor could any have been rendered, as he had not been summoned nor appeared.

The judgment giving priority to Bowyer over Payne and Prewitt, and to Payne over Prewitt, is not a final order, as it did not distribute the fund, nor give any other relief to either of the parties. (Bondurant vs. Apperson, decided at the last term, and cases cited.)

Nor is the order sustaining the attachment a final order. The decisions above referred to make this entirely clear, unless the order is made final by the provisions of the Code. Section 285 declares that, "an attachment obtained at the commencement of the action shall be sustained or discharged at the time that judgment is rendered in the action." Section 291 authorizes the defendant to move for a discharge of the attachment, at any time before it is sustained; and section 292 declares that an order sustaining or discharging an attachment, on the rendition of judgment in the action, shall be the subject of appeal. It seems clear that the framers of the Code did not intend to authorize an appeal from a preliminary order sustaining an attachment. This was, in effect, decided in the case of Talbot vs. Peirce, (14 B. Mon., 195,) in which it was held that a ju lgment overruling a motion to discharge an attachment was not final, and, consequently, that the court might, notwithstanding such judgment, and without additional evidence, discharge the attachment on final hearing. There is no substantial difference between a preliminary order sustaining an attachment, and a preliminary order overruling a motion to discharge the attachment. Neither amounts to any

thing more than an opinion that the attachment should be sustained; and, notwithstanding such an expression of opinion, the attachment may be discharged on final hearing. In the case under consideration the court withheld a final decision and retained control over the fund, on account of Wickliffe's claim. It may be that, on final hearing, the fund will be ad

Hutchings vs. Moore.

judged to Wickliffe, which would in effect defeat the attachment; or it may be that Hanson, before final hearing, may file an answer, as he certainly has a right to do, and show that the debt has been paid, which would result in a discharge of the attachment. Whether or not Hanson will be prejudiced by the order sustaining the attachment, and, if prejudiced, in what manner and to what extent, depends upon the future action of the court.

The appeal is dismissed.

CASE 15-PETITION ORDINARY-JANUARY 8.

Hutchings vs. Moore.

APPEAL FROM THE DAVIESS CIRCUIT COURT.

1. Whether covenants are to be treated as dependent or independent, is a question of construction, which must be determined by the intention of the parties to be coljected from the whole instrument

2. Where a contract to convey land, and the contract to pay therefor, are mutual executory agreements, not dependent upon each other, the non-performance of the one cannot be pleaded in bar to an action brought for the breach of the other. (1 Bibb, 454.)

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3. In a sale of a tract of land the bond, executed to the purchaser, recited that a certain sum was to be paid on the 1st of March next after the date of the writing, and the residue in two annual instalments, for which the purchaser executed his notes, absolute in their terms. The bond stipulated that possession was to be given on a named day, and a deed to be made with general warranty "when the first payment is made." Suit was brought upon the note given for the last instalment of the purchase money, the first payment having been made, the vendor having failed to make the deed. Held, That the contract to convey and the contract to pay are mutual executory agreements, not dependent upon each other. The failure to convey cannot avail as a defense to defeat the action.

4. A defendant is not required to denominate his answer a counter-claim when the facts as presented constitute a cause of action against the plaintiff, arising out of the transaction set forth in the petition, &c., "with an appropriate prayer for relief.” But it must contain all the requisites of a petition founded on the same cause of action.

5. Sale of a farm "containing 160 acres, more or less," particularly described in

Hutchings vs. Moore.

the bond for a conveyance, for the consideration of $6,400, "being at the rate of forty dollars per acre," (as the bond recites,) held to be a sale by the acre, and not in gross, and the purchaser liable to pay for a surplus of eleven and a half acres contained in the tract-he cannot surrender the surplus land to his vendor.

6. It has been held that in the sale of a tract of about 135 acres, a deficit of two acres was large enough, considering the price of the land, ($30 per acre,) to entitle the purchaser to relief. (Reed vs. Quisenberry, Mes. opin., winter term, 1849.) Argu.

7. A defendant, sued for compensation for surplus in a tract of land purchased of the plaintiff by the acre, states in his answer that he "has not enough knowledge or information to constitute a belief whether there is 11 acres of surplus land, above the 160 acres, and denies that he is indebted" on account of said surplus, &c. Held ●quivalant to a denial of "any knowledge or information thereof sufficient to form a belief." (Civil Code, sec. 125.)

GEO. H. YEAMAN, for appellant, cited 2 Bibb, 270; 4 Bibb, 81; 1 Mar., 193; 4 Mon., 269; 2 Dana, 6, 258, 266.

SWEENEY and WALL and RAY, for appellee.

CHIEF JUSTICE DUVALL DELIVERED THE OPINION OF THE COURT:

Moore sold to Hutchings, by executory contract, a farm described in the bond as "containing one hundred and sixty. acres, more or less, being the same land conveyed to me by Peter Funk," whose conveyance is referred to, "to ascertain more particularly the metes and bounds of the land." "The consideration is six thousand four hundred dollars, being at the rate of forty dollars per acre," of which $2,500 was to be paid on the 1st March next after the date of the writing, and the residue in two annual instalments, for which Hutchings executed his notes. It was further stipulated that Moore was to give possession on the 20th March, 1860, and would "make a deed with clause of general warranty when the first payment is made."

The action was brought by Moore to recover on the note given by Hutchings for the last installment of the purchase money, and also to recover $460, being the value of a surplus of 11 acres, at $40 per acre, which it is alleged is contained in the tract, as ascertained by survey, a plat and certificate of which were filed with the petition.

Hutchings answered, setting up the following matters of defense:

1st. That although he had made the first payment for the

Hutchings vs. Moore.

land, the plaintiff had wholly failed to make him a deed, as stipulated in the bond, and could not, therefore, recover on the

note.

2d. That the sale was not by the acre, but in gross, and, ́ therefore, he ought not to be compelled to pay for the alleged surplus.

3d. That he had not "enough knowledge or information to constitute a belief, whether there is 11 acres of surplus land."

4th. That if there should be any such surplus he tenders the same to the plaintiff, and offers to surrender and relinquish all claim thereto.

To this answer the plaintiff demurred, the demurrer was sustained, and judgment was rendered in favor of the plaintiff for both the sums claimed, to reverse which the defendant has appealed.

In regard to the first ground of defense relied on there can be no difficulty. The contract to convey the land and the contract to pay therefor, are mutual executory agreements, not dependent upon each other, and the non-performance of the one cannot be pleaded in bar to an action brought for the breach of the other. (McCampbell, &c. vs. Miller, 1 Bibb, 454.) Whether covenants are to be treated as dependent or independent, is a question of construction, which must be determined by the intention of the parties, to be collected from the whole instrument, and there is nothing in this case to authorize the conclusion that it was in the contemplation of either party that the payment of the last two instalments of the purchase money, for which separate notes were given, absolute in their terms, was to depend on the appellee's compliance with his separate obligation to convey the title at the time fixed.

It is to be remarked, in this connection, that the alleged breach, by the appellee; of his covenant to convey, was set up merely as matter of defense to the action, and not as a ground of relief by way of counter-claim. Indeed he asserts no claim founded on the alleged non-performance of the appellee, asks for no relief in consequence of it, but relies on it for no other

Hutchings vs. Moore.

purpose, and ascribes to it no other effect than that of defeating the recovery sought by the appellee. It has been decided by this court that a defendant is not required to denominate his answer a counter-claim when the facts as presented constitute a cause of action against the plaintiff, arising out of the transaction set forth in the petition, &c., "with an appropriate prayer for relief." (Branaman vs. Perkins, Mss. opin., 1856.) And it has also been decided, in several cases, that a counter-claim is substantially a cross-action by the defendant against the plaintiff, and that an answer setting forth a counter-claim must contain all the requisites of a petition founded on the same cause of action. (2 Met., 340; Mss. opin., June, 1858) One of the requisites of a valid petition, as defined by the Code, is " a demand of the relief to which the plaintiff considers himself entitled." (Sec. 118, sub-sec. 4.) Of course we would not be understood as intimating that this provision operates to restrict the plaintiff to the relief demanded.

The court below, therefore, did not err in deciding that the portion of the answer we have been considering was insufficient either to defeat the action, or as a valid counter-claim.

2. That this was a sale, not in gross, but by the acre, is, we think, so evident, upon the face of the bond, that an argument to render the point more clear would be useless. It was the intent of the parties to sell, on the one hand, and to purchase, on the other, the farm of the appellee, which is particularly described in the bond, and which was supposed to contain 160 acres, for the consideration of $6,400, "being at the rate of forty dollars per acre." These latter words are utterly without meaning, except upon the hypothesis that the parties intended them to indicate the character of the sale, and to declare in terms that the sale was by the acre, and not by the

tract.

If then, as alleged, the tract contains a surplus of eleven and a half acres, worth, at the stipulated price per acre, four hundred and sixty dollars, the appellee is unquestionably entitled to compensation for such excess. It is only necessary to add, in relation to the fourth ground of relief set up in the answer, that the appellant's offer to surrender the surplus land

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