Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1873-01-29
The demonstrating Case.

ling was decided by the Special Court OF APP
meals, sitting at Richmond, on Monday as
noticed IN yesterdays Gazette.
Judge Mclaughlin, who delivered the opln-
ion of the Court, gave the following history OF
this interesting and important case:
."rhis is a suit instituted in the County Court
of Fauouier by Gusavus Lersner against X. Is.
Boiling, for the specific performance OF con
tract for the sale Of two tracts of land IN tau-
nuier county; one known as Bollingbrook, con-
aiming 76o acres, aad the other as Ben Lo-
mond, containing Bah acres. 1t appears that
by contract in writing and under seal, executed
on the 10Th day Of January, 1868, Boiling sod
Iarsner the said tracts of land containing III
The aggregat l,llOl acres; also all the live stock
then on the farm, farming utensils, and house,
hold and kitchen furniture; the silver, plate OF
all kinds pictures prints, statuary, clocks, al
severed crops, meats then on hand, fowls car
riases with their harness, spring wagons, sad
dies and brides, and negroes being excepted
month after the termination Of the war, except
IT the sole discretion of Boiling. Boiling
agreed to bes,ow all care on the premises and
live stock, but was not to be responsible for
losses from au invading enemy or any other
source LcrSncr agreed to pay the sum OF
So 900. as follows: $1,000 Oh the lst day OF
February, 1863; $4,000 on the LIST day OF
March, 1863, and the remaining $50 900 on the
loh day of March, 1868 The contract was
written bv Boiling, and signed by both Of the
parties The first two inStaliments were paid,
amounting to $47, 900 perhaps not upon the
exact day upon which they became due but In
manner and at Il time satisfactory to Boiling.
When the last installment of $4,000 bec'me
due on the 10th OF March, 1868, Lersner was
in default and unable to pay. Boiling became
impatient, ana threatened to resclud the con-
ta.t Upon the 18th of April, the parties met
at the banking house of Lancaster & Co, IN
rhe city of Richmond, when Lcrsner, partly
from the proceeds Of certain sterlius bills ncgo
,atcd under circumstances hereafter tobe more
particularly considered, and partly from other
sources, paid Boiling $50, S72. &c, that beng
the amount of the installment OF $50, 900, with
interest thereon to that date and two and hall
ncr cent. on $50 900, the enhancement on Con
elerate bonds between the 10Th of March and
the lltl of April Boiling then gave the fol-
lowing receipt:
Received of Mr. Lorsner ut different times up
to this date, seventy-scven thousand oolia5s IN
nnvmcnt of Bolliugbrook and Ben Lomond eS-
i,tcs in FauQucr county, Va-say lllo4 acres
IL. deed to be executed for the first tract, and
decree authorized for the second when the CON
li:ions mentioned in the contract between Boil,
ing and Ler.ner, dated January 18th, 1863 shall
b.. fully complied with and perform I'd
S7SND ROBERT B. BOILING
April 18TH 1853.
Ler,ner then made the following endorse
mcnt on the contract
NJ. r. b. Boiling has this day, at my request,
endorsed three bills Of exchange on Robert Kal
~ Co, of Liverpool. respectively for scjOO, s4OO,
and goo (el, ZOO The said bills are dated Rich
mond, April ls:h 1863, at sixty, days sight
Whenever the three said bills shall be fully paid,
with all costs and charges, and the said Boiling
snail be released from all liability as endorSer,
he agrees and obliges himself to convey to Gus
tavus Lcrsncr the tract of land (Bolllngbrook)
mentioned in the within, anu to authorize the
decree for Ben Lonond to be made to the nd
Lrrsnrr No deed or decree to be claimed until
the above mentioned bills Of excha"ge endorsed
by r. B. Boiling shall be puid and the said Boil
ing Mbsolved finally from all liability
GUsTAvuS LERsSHR.
Richmond, April 10, 1868.
Witness j. Henry Lownes.
lne of these drafts for $500 fell into the
bauts of Fraser, Trenholm 4 Co., and was
presented for non payment on the I'd OF Sep,
teubcs The other two drafts for .f40O and
son fell into the hands of Caldwell, Shannon
X Co., aud were presented for non-acceptance
about the lst of August. When the holders
made demand Lersuer refused to pay, alleging
that due diligence had not been used. Y pom
the motion of Boiling, suits were Instituted on
the drafts, and Lersner, with the acqulescence
and consent of Boiling, made defence The
cases, however we're not tried from one cause
or another during the war. After the close OF
the war, Boiling discharged the bill tor f40O
and $500 held by c., S. & Co. The draft held
by F., T. l. Co. was paid by Lersncr. On the
18th of September, 1865, Lersner addressed a
note to Boiling Informing him that he had
paid the said bill and was ready to settle with
him Tor the other two, which he (Bolhngl had
taken up, and thus absolve him from al! re-
sponsibiity from the said drafts.
He adds: Aud [ shall then, having per.
formed all the conditions of the agreement of
deed for Bollingbrook ard an authority for
decree in my behalf for Ben Lomond accord
ing to the terms Of said contract, and accord,
Ing to your receipt Of payment April 18th,
1863" the receipt Of which was acknow lodged
by Boiling, but he made no reply. At the No
vember term, 1868, Of the County Court OF
Fauuuier, Lersner exhibited his bill, claiming
that he had paid all the purchase apopcy; that
Boiling withheld the legal title, not as vendor,
but IS mortgage, proposing to redeem the
mortgage by paying any sums Boiling may
have paid as eodorser of the bills, repress ntiug
that he had paid the bill held by Fraser, Iren-
holm l. Co., and praying specific perform
ancc of the contract and a conveyance OF the
legal title.
Boiling appeared and answered denied the
right of Lersner to specific performance
alleged that the drafts were trauduIentIy
drawn denied that they constituted pay
mcnt, and asking for rcscission OF the con
tracts a large amount of testimony was III
troduced. and after various proceedings the
cause was removed to the Circuit Court Of
Fauquicr county, which, on the 18th day of
September, 1867, rendered decree refusing
specific performance of the contract, and an
nulliug aud declaring it void, and decree'rg 10
favor of Lelsuer tor $40, los. 90, with interest
on SG.i5O part thereof from the 10th day of
March, 1863 and on $95S. 90 from the 7th day
of September, 1865, that being the amount
paid by Lersuer after reducing the payments
made in Confederate treasury notes to their