Appeal from the Circuit Court of Madison.

Tried before the Hou. H. C. Speaks.

This action was brought by the appellee, Felix M. Smith, against the appellant, Daniel H. Turner and Lucy T. Turner.

The complaint, as amended, was as follows : “Plaintiff claims of defendants $400, due by obligation in writing executed by defendants and Bessie L. Turner, who is not sued, on March 5, 1893, in words following : ‘If I fail to get the land of Felix M. Smith released from the Land Mortgage Company, by putting in other lands that were intended to be put in instead of this when the mortgage was executed, or if I fail to redeem the land before the right of redemption expires, I hereby agree to pay Felix M. Smith $400, and furthermore agree to pay the Company whatever rents they may charge for this year and next, until right- of redemption expires.’ ”

The plaintiff then avers the purchase of certain described land from the defendant, Daniel H. Turner, for $400, and the execution of a deed thereto by the defendant conveying said land with warranty of title. That prior to this purchase and conveyance, DanielH. Turner had executed a mortgage to a Land Mortgage Company by which he had conveyed said land, but plaintiff had no knowledge of the existence of said mortgage; that said mortgage was foreclosed, the lands sold, and plaintiff dispossessed thereof, and the same were lost to the plaintiff, whereupon the instrument declared on was executed. It was further averred in the complaint that “the defendants have failed ‘to get the land of plaintiff released from the Land Mortgage Company, by putting in other lands that were intended to be put in instead of this, when the mortgage was executed,’ and said defendants or either of them have failed ‘to redeem the land before the right of redemption expires, ’ as stipulated in said instrument; that the time which said Daniel H. Turner, or either of said defendants, had to redeem said lands expired before the institution of this suit. Defendants refuse to pay said sum with interest thereon.”

To this complaint the defendants demurred on the grounds, 1st, that it does not show that there was any consideration for the contract sued on; 2d, that the contract set up was vague, uncertain and void. This demurrer was overruled, and to this ruling of the court the defendant duly excepted. Issue was joined upon the pleas of the general issue and payment by both of the defendants, and on several pleas interposed by Lucy T. Turner, which averred that she is only a surety on the paper sued on, Daniel H. Turner being the principal obligor, and that the said paper was given for an executed consideration passing alone to said principal, and that the contract sued on is not based on any new consideration either of benefit to the obligors, or of detriment to the obligees, and that the contract as to her is void for want of consideration.

The evidence introduced, the substance of which is stated in the opinion, proved the averments of the complaint.

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