Opinion
(December Term, 1841.)
The bill dismissed in this case upon the failure of proof on the part of the plaintiff to sustain his allegations.
APPEAL from the decree of the Court of Equity of SURRY, at Fall Term, 1841, his Honor, Bailey, J., presiding.
The pleadings and proofs are sufficiently stated in the opinion delivered in this Court.
Boyden for plaintiff.
No counsel for defendant.
The plaintiff executed to Thomas Duvall a single bill, under his seal, for $270, dated 2 October, 1826, (70) payable ten days after date. The payee endorsed it to the present defendant on 19 October, 1826. At May Sessions, 1837, of Surry County Court the assignee recovered a judgment against the maker on the said bill. This bill in equity was filed, and an injunction obtained restraining the defendant from issuing execution. The bill charges that the bond was given to Charles Duvall in part of the purchase money of a tract of land; that subsequently the contract for the purchase of the land was rescinded, and that Thomas Duvall sold the land and executed a deed for the same to one White, and then agreed with the plaintiff to destroy all the bonds which he had taken of him for the purchase of the said tract of land, the bonds then being (as Thomas Duvall said) in the possession of a friend in the State of Kentucky. The bill further charges that the bond was endorsed after it was due. The defendant answered and says that he purchased the bond for $60 and a fine horse, and that it was endorsed on the day it professes to be on its back; that he had no knowledge of the transactions between the maker and endorser relative to the land. He believed the bond to be justly due, and was informed by the endorser that it was given for the rents of land and for stock sold; that after he became the holder he sent the bond to the plaintiff for payment, and that he made two payments of $50 each, which are endorsed on the bond.
The injunction was continued till the hearing. The parties took testimony, and on the hearing the injunction was dissolved and a decree rendered against the plaintiff and his securities for the amount of the debt and costs. From this decree the plaintiff appealed.
We have examined the testimony in this case, and we are of the opinion that the plaintiff has failed to prove that the bond mentioned in the pleadings was given for part of the purchase of the tract of land which was subsequently sold to White. The testimony shows that the plaintiff had at several times given to Thomas Duvall notes and bonds for land sold, rents of land and money loaned. It appears from the deposition of James Duvall that this bond (after endorsement) was, in 1827, presented to the plaintiff for payment, and he then made no objection to it, and that there were then part payments made in (71) horses. Moore, the plaintiff's witness, is proved by two credible witnesses to be a man not worthy of credit on his oath. There is therefore an entire failure of proof to establish the equity set up by the bill, but denied by the answer. The decree is affirmed with costs.
PER CURIAM. Decree affirmed with costs.
(72)