Guttschlick v. Bank of the Metropolis

11 F. Cas. 130, 5 Cranch 435

Opinion

THE COURT

(MORSELL, Circuit Judge,

contra) refused to give the instruction prayed by Mr. Coxe, that the plaintiff could not recover upon the whole evidence.

MORSELL, Circuit Judge,

thought that Mr. Elgar’s trust was not an outstanding incum-brance, because twelve years had elapsed between the judgment against Lane’s administrator in 1823, and the sale on the 21st of December, 1835, and therefore the plaintiff could not recover without tender of a deed to be executed by the bank.

THRUSTON, Circuit Judge,

thought the plaintiff might recover upon the general equity and justice of the case.

CRANGH, Chief Judge,

thought the outstanding title in Mr. Elgar, at the time of the contract, and at the time of the payment of the purchase-money, dispensed with the obli•gation of the plaintiff to tender a deed to be executed, as he was not bound to accept a defective title.

Verdict for the plaintiff, $1,191.25, with interest from the 9th of November, 1827. Bills of exception were taken by both parties.