Latimer

This action was brought to recover moneys laid out and expended in improving a certain piece of land, in pursuance of and as a part of the consideration for a contract by which appellant had agreed to convey said land in fee simple to plaintiff’s assignor on or before a certain date, for an agreed price, which contract, it is alleged, appellant was unable to perform, and failed to perform, on tender to it of the agreed purchase price, such failure arising from the fact that it had not the title in fee simple to the entire tract, and hence could not convey the same to plaintiff. On a trial before the court without a jury the plaintiff had judgment for $1,009.91, with interest from November 25, 1895. Defendant appeals from the judgment and from an order denying it a new trial.

1. Appellant’s first contention is, that no tender of the purchase price of the land was shown. It seems- to be conceded that the evidence in the case shows that there was a judgment in a suit brought to quiet title which affected at least a part of the land in question, and that by said judgment the title to said part of the land was declared to be in some one other than appellant. Knowing of this defect in…