Jones v. Jones' Adm'rs. Per Curiam.-The judgment below is affirmed, with costs and 1 per cent. damages. D. Mace and W. C. Wilson, for the appellant. H. W. Chase and J. A. Wilstach, for the appellee. JONES v. JONES' Adm'rs. The ruling herein relates chiefly to the sufficiency of evidence, and the reader is referred thereto at length. APPEAL from the Franklin Circuit Court. DAVISON, J.-The appellant, who was the plaintiff, brought an action against the appellees, alleging in his complaint that one James Jones, on the 1st of September, 1849, died, leaving a will, whereby he devised to said Daniel D. Jones, his son, the plantation on which he, the testator, then lived, containing 266 acres, reserving one-third of the rents, issues and profits thereof to his wife, Mary Jones, during her natural life; which rents, &c., she received until the 1st of November, 1854, when Daniel D. Jones, the devisee, sold the land to the plaintiff for 7,350 dollars, for which sum the plaintiff gave his notes, as follows: one note for 1,350 dollars, payable on the 1st of January, 1855, and six other notes for 1,000 dollars each, payable in one, two, three, four, five and six years from the first of January, 1855, with interest, &c.; that at the time of the sale it was agreed between the parties that in consideration that the plaintiff would accept a quit claim deed for the land, with the incumbrance aforesaid, and would furnish support and maintenance to said Mary Jones to the amount of 100 dollars per year, during her natural life, that Jones v. Jones' Adm'rs. he, Daniel D. Jones, would pay to the plaintiff 100 dollars per year during her life, or credit 100 dollars on said notes for each and every year she might live. And the plaintiff avers that he did take a quit claim deed for said land, and did furnish support and maintenance for said Mary to the amount of 100 dollars for each and every year from the day of the sale of the land up to the filing of this complaint, amounting, in the whole, to 600 dollars, besides interest, and that he still supports and maintains her. But the plaintiff says that Daniel D. Jones, while in life, did not pay, nor have his administrators since his death paid, the 100 dollars per year, in accordance with his agreement, or any part thereof. Nor has he, nor have they, credited the same or any part thereof, on said notes or either of them, &c. Defendant answered: 1. By a denial. 2. That the supposed undertaking of Daniel D. Jones, their intestate, as alleged, was not in writing, and was not to be performed within one year, and is, therefore, void by the statute of frauds, &c. 3. That six years has elapsed since the promise, &c., was made, and that the same was not in writing. Plaintiff, as to the second and third paragraphs of the answer, replied by a denial. And further, as to the second, he replied specially as follows: "That the promise and undertaking alleged, &c., was to be performed, by the intestate, by the payment of 100 dollars to the plaintiff for each and every year during the lifetime of Mary Jones, as stated in the complaint, and plaintiff admits that the contract was not in writing, &c." Defendants demurred to this special reply, but the demurrer was overruled and they excepted. Verdict for the defendants; motion for a new trial refused and judgment, &c. The errors assigned are: 1. The verdict is contrary to law. 2. It is unsustained by the evidence. The appellant contends that the verdict is contrary to law, because the contract, as set up in the complaint, is not void Bender v. Sherwood. by the statute of frauds. We are unable to perceive the force of this argument. The Court, on its ruling upon the demurrer to the reply to the second defence, decided the point on which the appellant now relies in his favor, namely: that the contract set up, &c., was not within the statute. And hence the jury, for aught that appears in the record before us, had nothing to do with the law arising upon the averments in the pleadings to which we have referred. It was simply their province to determine whether the facts therein alleged were proved by the evidence. Indeed the only question in the case relates to the sufficiency of the evidence. We have examined it carefully and, though it is to some extent conflicting, we are of opinion that its weight sustains the verdict. Per Curiam.-The judgment is affirmed, with costs. BENDER V. SHERWOOD. NEW TRIAL UNDER ART. XXIX.-Where A made a mortgage to secure a loan of money from the Trust Funds, and, after several transfers of the mortgaged property, the auditor, to collect the mortgage debt, advertised and sold the property in the name of the mortgagor, and B became the purchaser on a credit of a few days, and, before the purchaser money was paid, the owner of the fee at the time of the sale offered to pay the debt and interest, which was refused by the auditor, and the owner then sued to enjoin the execution of a deed to B and to set aside the sale, and had judgment upon the trial, and B then demanded a new trial as of right, under Bender v. Sherwood. article XXIX of the Code, (2 G. & H. 281) which was refused by the Court. Held, that the new trial should have been granted. APPEAL from the Fountain Circuit Court. HANNA, J.-This was an application by the appellee to en join the appellant, as purchaser, from taking possession of a certain described lot of land, as well as to prevent one Webb from executing a deed therefor. Injunction granted. There was an application for a new trial as a matter of right, overruled. It is averred that the lot was mortgaged to certain of the trust funds, and irregularly sold by Webb, the auditor of the county, specifically setting out the facts; that it was purchased at said sale by appellant, &c. The question we are asked to decide is, whether the appellant was entitled to the new trial under section 601, p. 167, 2 R. S. 1852. It appears to us that if the purchaser at said sale acquired a valid title, the injunction should have been refused, and, therefore, the conflicting claims to the said property were to such a degree involved in the suit and determination as to bring the case within the statute referred to. Per Curiam.-The judgment is reversed, with costs. Cause remanded for further proceedings. Tipton & Davidson, for the appellant. Shipley v. Patton's Administrator. SHIPLEY V. PATTON'S Administrator. STATUTE OF FRAUDS-CONTRACT.-A contract whereby A sold a horse to B, and warranted that it should be sound for one year thereafter, and agreed, that, if, after the expiration of one year, the horse should prove unsound, he would take it back and pay the plaintiff 100 dollars, is within the statute of frauds, and not operative against A, unless in writing. 1 G. & H. 348, 5th subsection of sec. 1. APPEAL from the Morgan Circuit Court. WORDEN, J.-This was an action by the appellant against the appellee. The action was brought upon an agreement entered into between the plaintiff and the deceased. The following special finding of the facts by the Court fully presents the question involved: "That on the 24th day of January, 1860, the defendant sold the plaintiff a horse, which he (defendant) warranted should be sound for one year thereafter, and that, if, after the expiration of one year thereafter, said horse should prove unsound, he (defendant) was to take him back, and pay the plaintiff 100 dollars; that at the expiration of one year thereafter, said horse proved to be unsound, and is yet unsound, and that on the 27th day of January, 1861, the plaintiff tendered back to the defendant said horse, and demanded 100 dollars for the breach of said warranty, which said sum of 100 dollars is wholly unpaid." On this finding the Court rendered judgment for the defendant, regarding the contract as within the statute of frauds. That the ruling was correct, we have no doubt. The contract, by its terms, was not to be performed until after the expiration of one year from the making thereof. In case of the unsoundness of the horse, he was not to be returned, nor was the 100 dollars to be paid until after the expiration of a |