
    J. Taylor Williams v. William Mills & Mullins.
    Pleading — Petition Insufficient to Constitute a Cause of Action;
    A petition, seeking to recover a consideration paid for a transfer of a claim to lands purchased at a decretal sale, to constitute a cause of action, must allege an undertaking or agreement to refund the money so paid on the failure of the court. to confirm the sale, or any other contingency.
    APPEAL PROM’ CAMPBELL CIRCUIT COURT.
    September 14, 1870.
    
      Hoge, for appellant.
    
   Opinion op the Court by

Judge Hardin:

The -only question in this case is, whether the petition states facts sufficient to constitute a cause of action?

The averments of the petition impart the payment of the sums «of $90 and $110, in consideration of a sale and transfer by the 'defendant to the plaintiffs of some claim to land which he had purchased at a decretal sale, which sale was not thereafter confirmed, but vacated. This may all be true without any failure ■of the consideration of the payments, as the terms of the sale require of the defendant anything more than he did to entitle him to the money he received, and the petition alleges no undertaking to refund the money on the failure of the court to confirm the sale, or in any other contingency.

AVe are of the opinion therefore, that .the petition is not sufficient to uphold the judgment, but time should be given to amend it on the return of the cause.

AVherefore the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.  