The record-union., 1891-01-13

in the land, the title to which stood wholly in
the name of the defendant. The agreement
| ltseli was not completely performed at the
time the written Acknowledgement of it was
| given to the plaintiff: il was still cxecutory
| was entered.
Now, as the verbal agreement was, that the
| lands were to be sold for cash at a reasonable
profit, as opportunities to make sales should
occur, ana the profits were TO be divided
promptly after each sale, it Is clear that the
! plaintiff was not compelled to wait until all
the ianus were sold for his share of the profits.
| defendant further contends that, IS he ber-
roWed money with which to purchase the
| lands and paid interest thereon, the profits
| should have been ascertained, in the court be-
low, by dcducting from the price for which he
! sold a portion OF the Lands TO Taylor not only
| the 81 25 per acre paid to the Government
| therefor, but the interest ne had paid thereon,
and the taxes and other expenses necessarily
incurred IN acquiring, keeping, and d1sposinS
OF the property.
As to the interest, it is sufficient to say that
IL was not stipulated for ii the agreement, and
| as 10 taxes and other necessary expenses, even
If they were properly chargcable, there was no
| evidence of them offered, nor claim made
| therefor ut the trial
! It's further urged that no provision was
made mad for the payment of future. taxes upon
the unsold portion Of the lands in which
plaintiff was awarded an interest.
III was not necessary TO make any further
| provision therefor. because as that portion of
the lands was divided equally between them
and the plaintiffs interest made subject to q
/ ant to secure the purchase price, the plain
! TIL S interest Is taxable to himself alone aid
not TO the defendant
AS to the $40 acres purchased under the
/ agreement after the written acknowledgment
OF June D, 1886, was given. the Court iii
awarding the plaintiff bis half interest there
1 IN, IN addition to the lien imposed thereon in
favor OF the defendant for the price per acre
! PAID by him TO the Government, extended
Such ilen TO cover interest ut the legal rate
from the date OF the purchase of the tract.
The iinding upon which this allowance of
| interest is based is claimed To be unsupported
| BY the evidence. We are inclined TO think so,
too; but as it is in favor of the defendant he is
not injured by it.
! II is also claimed by the defendant that tho
! 610-acre tract was enormously brought with
1 in the agreement. the evidence that it was
acquired under the agreement is quite strong;
| both parties testified that il was SO acquired;
| but the defendant, in order To defeat the plain
| till IS claim respecting it. testified as follows
The written declaration | gave Carpenter
embraces all the land described in the COM
| plant, except the G1o acres in sections . and
| q, township 81 south, 0 east; that acquired
in August afterwards. II he kept his agree
7nent ti,ot 'ooS to 3e Included ia ii.' TO which
! we may add, the Court found that lie fully
/ performed the agreement Gpon his part, and
! this finding IS supported by the evidence.
! We advise that the Judgment and order be
| affirmed. GIBSON C.
! We concur:
/ BELcEER, G..
VAN CLIEF, C.