The opinion
By the court:
Rost, .1.
This case only differs from that of Breen against the same defendant,<6 Ann. 13, in this, that it is not shown, as in that casé, that the defendant had authorized the plaintiff to deposit, with the unfaithful notary, the cash portion of the price. Schmidt had other monies in the hands of the notary at the time, and it is not proved that when he applied to him for part of it, he demanded the identical money deposited by the ^plaintiff. The evidence, as it is written in the record, certainly raised a presumption of assent on his part, but it was not enough for the defendant to render the fact probable, he should have made it certain. The notary having absconded, 'without accounting for the amount deposited, we are of opinion that the plaintiff must bear the loss.
It is proved that the defendant cannot, even now, give the plaintiff a clear title, and of course he had no right to claim the purchase money. His demand, in reconvention, was therefore properly dismissed. The appellant has asked, in liis brief, a resolution of the sale, and we would decree it in his favor, if the prayer of his petition was not inconsistent with that form of relief. As the case is placed before us, the judgment can only be affirmed.
Judgment affirmed, with costs.