
    Vawter v. Brown.
    The main decision herein rests upon the construction of evidence and can not be briefly stated in a syllabus.
    Practice. — After a cause has been appealed to this Court, and the judgment below reversed, and the cause remanded for further trial, it is not error for the lower Court to permit pleadings to be amended.
    APPEAL from the Bipley Common Pleas.
   Perkins, J.

This cause was before this Court at a former term. 16 Ind. 324.

Benjamin Vawter sued Elijah Brown, on a note, as follows:

“$200. On or before the 25th day of December next, I promise to pay Daniel M. Kelly 200 dollars, without relief, &c. January 6, 1854. Elijah Brown.

Kelly indorsed the note to Benjamin Vawter, the plaintiff.

Brown, the defendant, answered to the suit that when he gave the note Kelly gave him a bond for a deed to a tract of land, which deed was to be executed on payment of the note; that no deed had been tendered," &c.; that Kelly did not own-the land, and that defendant had been compelled to pay one Cravens more than 200 dollars to obtain a deed from him, he being the owner of the land. The plaintiff replied that Kel ly, when he sold the land to Brown, held the same only by a title bond from one Bruden, to whom there yet remained a sum of purchase money due; that Bruden had deeded the land to James H. Cravens, and that the defendant, Brown, had procured a deed from Cravens, by paying him, &c.; when he was entitled to one without paying him, for the same, &c.

There was a trial, and a bill of exceptions contains the evidence.

On the 6th day of January, 1859, Daniel M. Kelly was in possession of 160 acres of land which he held by virtue of a title bond, from Bichard Bruden, and on which there was to be paid 600 dollars before Bruden could be compelled to make a deed to any one for the land.

Kelly, thus holding this 160 acres of land, at the date above named, sold 40 acres of the parcel to Elijah Brown for 400 dollars, 200 dollars of which he paid down, and for the remaining 200 he executed the note sued on, and received from Kelly a bond for a deed on payment of the note.

. Neither Kelly nor any one else tendered to Brown assumedly pursuant to the contract in question, a deed for the land before this suit on the note was commenced, nor has one been tendered since; so that unless something has transpired to excuse or equitably amount to performance of this condition precedent, this suit can not be maintained.

Richard Bruden executed the bond for the 160 acres to Daniel M. Kelly on the 6th day of August, 1853, conditioned that Kelly should have a deed on payment, &e., on the 25th of December, 1862.

On the 21st day of February, 1855, Daniel M. Kelly assigned this bond from Bruden to Joseph Kelly, “except the 40 acres which Elijah Brown is to have by the payment of 200 dollars and the interest.” There is nothing said as to whom he is to make the payment.

On the 28th of March, 1855, John Kelly assigned the same bond to James H: Cravens.

On the 23d day of April, 1856, Bruden executed a deed for the 160 acres to Cravens, and took up his bond. '

On the 1st day of May, 1856, Cravens made a deed to Brown for the 40 acres bonded to him by Daniel M. Kelly, on the payment by Brown to him (Cravens,) of 225 dollars.

Thus Brown has obtained a deed for the 40 acres which he purchased of Kelly, and has paid the full consideration therefor, but he did not get his deed directly from Kelly, nor did he pay the consideration to him. Did he receive his deed by Kelly’s procurement, so that Kelly is entitled to say that he made the deed and is entitled to the consideration? Did Brown unnecessarily pay Cravens to procure his deed? In other words, did Kelly procure the deed from Cravens to Brown ? There is no evidence of this fact. It may be true that Cravens has made off of some of the parties the 225 dollars paid him by Brown. It may be that he was to pay out what was due to Bruden and take the 120 acres left after taking out Brovm’s 40 acres, but the evidence does not show it. We are not informed what James Kelly paid Daniel for the assignment of the bond, nor what Cravens paid James Kelly.-

On the evidence we can not. say that Brown was not compelled to pay Cravens to procure the deed which Kelly had bound himself to, but was unable tp make.

Another point.

The evidence does not show that Brown had come under a binding obligation to Vawter to pay the note sued on to him so as to be estopped from setting up the defence made in this ease. It is not shown that Vawter purchased the note on the faith of a promise on the part of Brown to Vawter to pay the same to him.

The Court below permitted an amendment to be made, by the defendant, to his answer, after the cause was reversed in the Supreme Court, and remanded to the Court below. This, it was in the power of the Court to permit. And in the absence of a bill of exceptions, showing the objection urged below, and the ground upon which it was overruled, or that it was overruled arbitrarily and without ground, we must presume it was done upon sufficient ground.

Edwin P. Ferris, for the appellant.

H. W. Farrington, for the appellee.

Per Curiam.

The judgment below is affirmed, with costs.  