Holley v. Younge
27 Ala. 203
Ala.
1855
Check Treatment
GOLDTH WAITE, J.

The second plea avers, in effect, that the note sued on was given for a tract of land, to the plaintiff below, who executed a deed with covenants of warranty against incumbrances; that at the time of the execution of said deed, there was a vendor’s lien on the land for the purchase money; that a bill in chancery was filed, to which the plaintiff was a party, to enforce said lien, a decree rendered condemning the lands to be sold to the satisfaction of the same, which was done, and that the defendant became the purchaser for the sum of three hundred dollars.

Under our decisions, based upon the old law, the demand set up in this plea would not have been a good set-off, for the reason, that the contract out of which it arose was one of unliquidated damages (Dunn v. White, 1 Ala. 645 ; Cole v. Justice, 8 Ala. 193) ; but the law in this respect has been changed by the Code (section 2240), which allows “ unliqui-dated demands, not sounding in damages merely”, when subsisting between the parties at the time of suit brought, to be set off. What we understand by a demand “ not sounding in damages merely,” is one'which, when the facts upon which it is based are established, the law is capable of measuring accurately by a pecuniary standard ; but where, as in case of a breach of a marriage contract, an assault and battery, or other cases of the like nature, the demand is of a character which, under the rules of law, does not admit of a reduction to a certain money standard, there it sounds in damages merely. Applying this rule to the plea, as the breach of warranty against incumbrances entitles the vendee to extinguish any one which may be outstanding, in order to perfect his title, (Cole v. Justice, supra) and if he has bought it in, to recover the amount paid if reasonable (Knox v. Anderson, 20 Ala. 156), and it does not exceed the amount of the purchase money and interest, it follows that in such a case the demand would be a good set-off. The ]Dlea is very carelessly drawn, but, upon a fair construction, it means what we have stated ; and the only grounds of objection taken by the demurrer, — and we are not to consider any other, (Code, *207§ 2253,) are, that the plea does not set up a legal defence to the action, — that the demand which it offers to set off sounds in damages merely, and that it states no request by the plaintiff to the defendant to pay the three hundred dollars ; none of which can be sustained.

The fifth plea averred the pendency of another action for the same cause, between the same parties, and was matter pleadable only in abatement. — 1 Saund. Pl. (5 Am. edit.) 20. The proper course, when a plea in abatement is pleaded with a plea in bar, is to strike it out on motion. — Hart v. Turk, 15 Ala. 675. But, if it could have been taken advantage of by demurrer, the error of the court in overruling it will not avail the appellant, as the record shows that the action was not abated, but a judgment rendered in his favor, which could not have been the case had ho not succeeded on that plea ; and he therefore cannot have sustained any injury by the action of the court upon the demurrer.

The demurrers to the replication to the second plea were also properly sustained. The first sets up a parol contemporaneous agreement destroying the legal effect of the covenant, which is not allowable (Holt v. Moore, 5 Ala. 521; Litchfield v. Falconer, 2 Ala. 280) ; and the second alleges that the deed was obtained by the fraudulent misrepresentations of the other party that he would not use it against the cov-enantor. The only fraud which can be set up in a court of law to avoid the operation of a sealed instrument, is that which goes to its execution (Cow. & Hill's Notes to Ph. Ev. 1449 ; Morris v. Harvey, 4 Ala. 300) ; a.s where there is a fraudulent misreading, or obtaining such an instrument as the obligor did not intend to give. — Franchot v. Leach, 5 Cowen, 506. The fraud alleged, not affecting the execution, was no defence.

Judgment affirmed.