
    Stone v. Boone et al.
    Contract: mortgage: evidence considered.
    
      Appeal from Johnson Circuit Court.
    
    Wednesday, December 14, 1880.
    Plaintiee commenced two separate actions to foreclose two mortgages securing certain promissory notes. One of the defendants did not execute one of the notes; all of them joined in the execution of the others. The same defenses were pleaded in both cases and it was agreed that the decision' of one should control the other. There was a decree for plaintiffs; defendants appeal.
    
      John W. Slater, for appellants.
    
      W. J. Haddock, for appellee.
   Beck, J.

— As a defense to the action defendants allege in their answer and cross-bill that the notes secured by the mortgage were given to plaintiff for the purchase price of certain lands; that afterwards plaintiff and defendants entered into an oral agreement to rescind the contract of purchase and sale of the lands, plaintiff agreeing to take back the property and give up the notes and mortgages to defendants; and that in pursuance of such agreement plaintiff took possession of the lands but failed and refused to surrender or cancel the notes and mortgages. The defendants in their cross-bill pray that these instruments may be canceled.

The sole question in the case is one of fact; it requires us to determine whether there was an agreement between the parties to rescind the sale of the lands under which plaintiff was to surrender and cancel the notes and mortgages. We think the evidence fails to establish such an agreement. It clearly appears that there were negotiations looking to such an agreement, but the agreement itself was never consummated. It was discovered that certain liens had fallen upon the lands after plaintiff had conveyed them which was an impediment to the consummation of the negotiations. The possession of the property by plaintiff was not taken under this agreement.

Our conclusions upon these questions of fact dispose of the case. A discussion of the testimony would be useful neither to the parties nor to the profession.

Affirmed.  