Funkhouser v. Purdy

Funkhouser v. Purdy. Debt on a bond for 400 dollars, payable on the 1st of November, 1819. Plea, as to 42 dollars and 60 cents, payment; and as to the interest before the 24th. of March, 1823, the plaintiff’s, covenant that the sum due on the bond, which had been given for a tract of land, should not be payable nor bear interest until he should execute the title — which he had not done until that time. Replication as to the plea in bar of the interest before the execution ■of the title, that the plaintiff had tendered the deed some years previously; hut it was at a time when, by his own showing, his title was not complete. Held, on general demurrer, that the replication, was insufficient; and that the plea was a good bar to that part of the action which it professed to answer. ERROR to the Harrison Circuit Court.- — Purdy was the' plaintiff below, and Funkhouser the defendant. The plea did not profess to answer the action, except so far as related to that part of the principal of the bond which was averred to have been paid, and to so much of.the interest as was alleged to have been released. The replication was to that part of the plea which relates to the interest. The judgment was,for 400 dollars, the ■debt in the declaration mentioned, and 42 dollars and 85 cents ■damages for the detention, making in all 442 dollars and 85 •cents, together with costs. [MAJORITY — Holman, J. Per Curiam.] Holman, J. Debt on a bond for 400 dollars, due the 1st of November, 1819. Plea of payment of 42.dollars and 50 cents; and a release founded on a covenant executed to Funkhouser by Purdy and Cunningham — whicb, after reciting that the bond had been given in consideration of a tract of land, the title to which could not be made in the time and manner originally contemplated, sets forth a covenant by Purdy to make the conveyance, •and a stipulation that, until the conveyánce should be executed, Funkhouser should be free from any payment of principal or interest of all remaining unpaid, to wit, 357 dollars and 50 "cents; and further,'“that from the day the said land is conveyed, then and from that date said 357 dollars and 50 cents are to be considered payable, and to bear common interest.” Which conveyance, it seems, was not executed until the 24th of March, 1823. The plaintiff replied a tender of a deed some years before; but at a time when, by his own showing, he had not a •complete title. The defendant demurred, and the plaintiff had .judgment. This judgment, so far as it embraces the 357 dollars and 50 •cents, with damages for its detention from the 24th of March, 1823, until the rendition of tbe judgment, is not disputed. For the balance it is clfearly erroneous. The covenant recognizes the payment of the 42 dollars and 50 cents, and unquestionably ■determines that the balance is only to bear interest from tiro date of the conveyance. The replication is bad. The demurrer should have been sustained. Kidder, for the plaintiff Kelson, for the defendant. Per Curiam. The judgment is reversed, with costs. Cause remanded, with directions to the Circuit Court to permit the plaintiff below to withdraw his joinder in demurrer, and amend his replication.