
    LARKIN BRANNUM against BENJAMIN ELLISON.
    Where B pretended that he held a bond on a certain individual to make him a title to a tract of land, and sold his interest in said land to A, partly for cash and partly for A's bonds, on its appearing that B had no such title bond, and no interest in the land, it was Held that A was entitled to have the collection of the balance of the purchase-money enjoined, and a decree for repayment of the sum advanced; but that as preliminary thereto, he must surrender the possession of the land which he had obtained from B.
    Cause removed from the Court of Equity of Cherokee county.
    The facts of this case are sufficiently stated in the opinion of the Court.
    No counsel appeared for the plaintiff in this Court.
    Gaither, for the defendant.
   MaNly, J.

It seems the defendant, professing to be the owner of a bond on G. W. Hayes, to make title to a parcel of land in Cherokee, bargained and sold his interest in the same for the sum of three hundred dollars to the complainant, who thereupon, in consideration of a promise, on the part of the defendant, to get the bond and assign the same in proper form, paid the sum of $185 75, and gave his bonds for the residue of the purchase-money. The equity of the bill rests upon the allegation that defendant has not assigned the bond as promised, nor in any other way made title to the land, but is now fraudulently insisting that he has done so, and is enforcing the collection of the purchase-money. We have examined the testimony, especially the depositions of G. W. Hayes and N. Jarratt, and find the allegations of the bill sustained. The defendant seems never to have had any bond or other assurance for title from Ilayes, or any one else, which he could assign or transfer, and complainant is therefore left entirely without title, or security for title. It is uncouscientious, therefore, in the defendant to enforce his demand for the residue of the purchase-money, or to keep the moneys that have been paid him upon the contract. It seems, however, that defendant had occupation of the land at the time of the agreement which he delivered to plaintiff, and that plaintiff’s son, claiming under the father, is still in possession. A condition precedent, therefore, to the relief which the bill asks, is that the-possession of the land now held by the son, shall be again transferred to the defendant; subject to this condition, we are of opinion the plaintiff is entitled to a decree for the moneys paid by him and interest, and to a perpetual injunction against the collection of the residue. A decree may be drawn in conformity with the opinion.

Pee CitkxaM, Decree accordingly.

*** Judge Manly being a stockholder in the Atlantic and North Carolina Rail Road Company, took no part in the decision of the case of McRae v. the Company, ante 395, nor in any other where that corporation was concerned.  