
    Nicholas v. Heaton.
    ERROR to tbe Clinton Circuit Court.
   Perkins, J.

Suit upon a bond conditioned for tbe payment of 400 dollars.

Pleas were filed, but it is not material to state their contents, as tbe cause was submitted upon an agreement as follows :

“ It was agreed that tbe Court should bear all tbe testimony in tbe case, and determine tbe equity between tbe parties; and if, in equity, there should be a liability on the bond, there should be a finding by tbe Court for that amount.”

Tbe evidence is upon tbe record.

It appears that Heaton and Nicholas traded lands, and that it was considered that Heaton’s lands were worth 200 dollars more than those oí Nicholas, &nd Heaton also gave Nicholas 200 dollars in notes, making tbe lands and notes exceed in value tbe lands of Nicholas, 400 dollars. But there was a mortgage to tbe surplus revenue fund of 400 dollars on tbe lands of Heaton, which Nicholas assumed to pay, thereby making tbe trade equal. ’

Nicholas gave tbe bond sued on as security for tbe payment by him of tbe 400 dollar mortgage in question, and be conveyed bis lands to Heaton.

. J. P. Suit, P. C. Gregory, and P. Jones, for the plaintiff.

Heaton gave Nicholas a bond to convey Ms lands to Mm as soon as he, Nicholas, should pay the surplus revenue mortgage which was upon them. Nicholas did not pay said mortgage, and it was foreclosed and the land sold by the State. This suit is by Heaton against Nicholas, on the bond conditioned for the payment of the surplus revenue mortgage, which mortgage Nicholas failed to pay, but which was paid, not by Heaton, but in part by a sale of the lands which Heaton had traded to Nicholas in exchange for lands conveyed by the latter to him, and which lands, when so sold, were equitably the property of Nicholas.

The surplus revenue mortgage covered, in addition to those to be conveyed to Nicholas, other lands, worth, according to the evidence, about 150 dollars, which were also sold by the State on the foreclosure of said mortgage, for 20 dollars, and proceeds absorbed in pay-' ing interest and costs. This was a damage to Heaton, occasioned by the breach of the bond given by Nicholas conditioned for the payment of said-mortgage, and for the reasonable value of those lands he should have had judgment.

It would seem that the judgment of the Court below was not equitably right upon the facts, as the parties agreed the Court should make it, it being for the entire amount of the bond and interest, over 600 dollars.

Per Curiam.

The judgment is reversed with costs.  