#### Henton and Another *v.*Beeler.

*Wednesday, June 5.*

Debt on a sealed note for the payme'nt of money. Plea, that the consideration of the note was certain land (describing it) belonging to one an infant; that at the time the note was given, the land was sold at private sale to the defendant by one *B.,*a commissioner appointed by the Probate Court for that purpose; that three notes were given by the defendant for the payment of the purchase-money by instalments, on one of which notes, being the one last due, this suit is founded; that at the time the notes were given, *B.,*as commissioner as aforesaid, executed his bond obligating him- . self to convey all the right and title of said *Ji.*in said land to the defendant, on payment of the purchase-money, provided the sale should be confirmed, but if set aside, the notes were to be returned to the defendant; that *B.*has not made or tendered, nor offered to make or tender to defendant a conveyance for the land either absolutely or conditionally, or otherwise, but has hitherto failed to do so; that he cannot make such conveyance, and the consideration of the note has therefore failed, &c. *Held,*that the plea was good.

ERROR to the *Hendricks*Circuit Court.

Blackford, *J.*

— Joseph *Beeler*brought an action of debt against *George W.*Carson, *Benjamin*Armstrong, and *William Henton.*The suit was founded on a sealed note for 266 *151dollars and 66 cents, payable to the plaintiff, guardian of *George Matlock*an infant. The writ was returned “ not found” as to *Carson.*

*Armstrong*and *jKenton*pleaded as follows: That the consideration of the note was certain land (describing it) belonging to *George Matlock*an infant; that at the time the note was given, the land was sold at private sale to *Carson*for 800 dollars, by one Nichols, a commissioner appointed by the Probate Court for that purpose ; that three notes were given by *Carson*and the defendants his sureties, for the payment of the purchase-money by instalments, on one of which notes, being the one last due, this suit is founded; that at the time the notes were given, Nichols, as commissioner as aforesaid, executed his bond obligating himself to convey all the right and title of said *George Matlock*in said land to *Carson*on payment of the purchase-money, provided the sale should be confirmed by the Court, but if the sale should be set aside, the notes were to be returned to *Carson;*that *Nichols*has. not made or tendered, nor offered to make or tender to *Carson,*a conveyance for the land either absolutely or conditionally, or otherwise, but has hitherto failed and refused to do so ; that he cannot make such conveyance, and the consideration of the note sued on has therefore failed, &c.

Replication, that the sale mentioned in the plea was made by *Nichols*as a commissioner, appointed by the Probate Court, &c., in a case then pending, in which the plaintiff as guardian of *George Matlock*an infant, filed a petition as such guardian to obtain an order, among other things, for the sale of the premises described in the plea, and which premises were ^hereupon sold by *Nichols*as commissioner as aforesaid by virtue of his said appointment.

General demurrer to the replication and judgment for the plaintiff.

The replication is evidently no answer to the plea, but it is contended that the plea is insufficient. The plea appears to us, however, to be unexceptionable. It alleges the note to have been given for the last payment for certain real estate belonging to an infant, sold by a commissioner appointed for the purpose by the Probate Court; that the commissioner bound himself to the purchaser by bond, at the time of the *152sale, to convey' to him the infant’s interest in the estate on payment of the purchase-money, if the sale should be confirmed, and if it should be set aside, to return the notes, &c. According to these allegations, the payment of the purchase-money to the plaintiff and the executing of the conveyance were to be concurrent acts, and though the sale were confirmed, the payee could not recover on the note sued on, the one last due, without at least showing that a conveyance had been offered on payment, at the same time, of such note. See *Taylor*v. Perry, 5 Blackf. 599.

*C. C.*Nave, for the plaintiffs.

C. Fletcher, *O.*Butler, and *S.*Yandes, for the defendant.

The plaintiff contends that the statute under which these sales are made, requires the purchase-money to be paid before the making of the deed. It is sufficient, however, for the defendants in this case to show that the contract was otherwise. The sale itself may be objectionable if not authorized by the statute, but that view of the subject would not' benefit the plaintiff.

*Per Curiam.*

— The judgment is reversed with costs. Cause remanded, &c.