Gross v. Lundy Et Ux.

Opinion by

Linn, J.,

This judgment for want of a sufficient affidavit of defense cannot be sustained. Suit was brought to get back hand money paid on account of the purchase price of land. The contract provided for a title “clear of encumbrances and easements, subject to” an existing mortgage not maturing prior to March 1926. It is averred that the parties met for settlement within the time prescribed in the agreement and that defendants could not convey the title clear as agreed upon, because of a building restriction.

The contract recited that it was made by Joseph Lundy and his wife, of the…