
    No. 545
    First Circuit
    BOSWELL v. BRADSHAW
    (December 30, 1929. Opinion and Decree.)
    (March 5, 1930. Rehearing Refused.)
    R. A. Fraser, of Many, attorney for plaintiff, appellee.
    A. B. Cavanaugh, of Leesville, attorney for defendant, appellant.
   ELLIOTT, J.

Wiley B. Bradshaw executed and delivered his promissory note to G. C. Boswell in part payment of the pur chase price of the merchantable pine timber situated on certain land. The sale was made with full warranty of title. Boswell brought suit on the note, and Bradshaw resists payment, pleading failure of consideration due to the existence of a federal land bank mortgage which he alleyes burdened the timber at the time of the sale. He alleges that he removed part of the timber, but was prevented by the Federal Land Bank from removing all of it; that his total loss on said account he estimated to be $1,081.95.

He further urges that in the sale from Boswell to himself he was granted two years, from January 1, 1928, in which to remove the timber, but that the said Boswell, as a matter of fact, did not have that length of time from his own authors in title, for the purpose of removing the timber, and he suffered a further loss and failure of consideration on said account.

The defendant carries the burden of proof as to the failure of consideration on each of the grounds alleged.

The evidence does not show that the Federal Land Bank prevented defendant from removing any of the timber he acquired from Boswell, nor that he lost any of the timber on account of same. And the evidence does not show that he lost any part of it, due to the fact that Boswell did not have two years remaining him in which to remove the timber after selling it to the defendant.

The judgment of the lower court in favor of the plaintiff was correct.

Judgment affirmed. Defendant and appellant to pay the cost in both courts.  