Lee v. Dozier

40 Miss. 477 | Miss. | 1866

Ellett J.,

delivered the opinion of the court.

The declaration in this case is upon a promissory note. The defendant pleaded the general issue, and at a subsequent term filed two special pleas, as pleas jpms dernier contmuamee. The first of these avers that the note sued on was given in payment of land in Louisiana, and that prior to the making of the note, the plaintiff had executed a title bond, a copy of which is filed and prayed to be made a part of the plea, which instrument the defendant, a non-resident of the State of Louisiana, and ignorant of its laws, understood and supposed to be properly drawn and executed, in accordance with the laws of said State; that after the last continuance of this cause, he ascertained that said instrument was not executed or drawn in .accordance with the peculiar laws of said State, in that if was not signed by both parties, nor registered as required by said laws, and' is therefore void, and that consequently the consideration of said note had failed.

The second of said special pleas merely was that after the last continuance the plaintiff refused to give possession of the said land to the defendant, although requested so to do, and retains the same for his own benefit and profit.

The agreement, called a title bond, a copy of which is filed with, and prayed to be taken as a part of, the first plea, is in the ordinary form of a bond for title, except that it is not sealed ; and Dozier thereby bound himself in a penalty, by the first of February, the day of the maturity of the note sued on, upon the request of Lee, and payment of the purchase-money, to convey the land to the latter.

The plaintiff demurred to both pleas,- and the demurrer was sustained; whereupon a jury was impanelled to try the issue, and a verdict and judgment were given for the plaintiff.

Both these special pleas were bad. The first contained no matter that could be pleaded jjuis dernier contmucmee. The office of such a plea is to set up a matter of defense arising after the last continuance, not one which, existing before, has just come to the knowledge of the party. The facts pleaded in this case were covenant with the execution of the agreement, and were necessarily within the knowledge of the defendant. But he alleges that he had only, since the last continuance, ascertained the law of Louisiana on the subject. That, however, does not alter the case. The matters relied on, that is, the want of his own signature to the contract, and the failure to register it, are not facts that occurred after the last continuance, and therefore cannot be so pleaded.

We have no idea that the plea states correctly the law of Louisiana applicable to such a case, or that any court in our sister State would hold this agreement to be void between the parties, for the reasons assigned. The cases cited seem to go only to the extent, which commands our full approval, that where the agreement contains stipulations on both sides, and is obviously intended to be executed by both parties, the signature of one party will not be binding on him, until the other party signs also. Each party signs on the tacit condition that all the other parties will sign, and that until the final assent is given, there being no concurrence of different minds, any one may retract. Herriot v. Bronssard, 4 Martin N. S. 260; Syndic of MoManus v. Jewett, 6 Louisiana R. (by Curry), 530. In the present case the stipulations of the two parties were contained in separate instruments. One signed the note for the purchase money, and the other the agreement to convey when the money-sliould be paid; and it could be no more essential that both-should sign the agreement for title, than that both should sign-the note for the money. Furthermore, the supposed defects are the omissions of the defendant himself, and could at any time have been supplied by him.

It is very clear that the promise to pay the money and the agreement to convey tbe land, are mutual and dependent agreements, and that neither party can compel performance by the other, without first offering to perform his own part. Before the defendant could avail himself of the supposed invalidity of the agreement as a defense to this action, he should have offered to pay the money, and demanded a conveyance of the land. On the other hand, if the proper defense were made, it is equally manifest that the plaintiff could not recover on the note against the defendant, without showing a previous tender of a proper deed, conveying the land, and a demand of the purchase-money.

The second special plea does not show anything in relation to the consideration of the note, nor connect it in any way with any land, but only alleges that since the last continuance the plaintiff “has refused to give possession of the said land,” not stating what land, or giving any reason why possession ought to have been delivered. Every plea must be complete and perfect in itself, and must contain sufficient matter to bar the action, and cannot be made to depend on facts stated in other pleas. Each plea must stand or fall by itself, and cannot be helped by matter contained in another plea, unless such matter is expressly referred to. 1 Chitty, 563;Willes’ R. 380; 2 Johns. 437; 2 Mass. 543. So, writings must be set forth by proper averment in the plea, and according to their legal effect and operation; and it is not sufficient to set them forth m hwe verba, much, less to append them to a plea by way of exhibits. The latter is a mode of pleading adapted to proceedings in courts of chancery, but finds no countenance in the simplicity and precision inculcated by the rules of the common law.

But if this plea had contained proper averments, that the note sued on was given for the purchase-money of land, and had set out the agreement for the title, it would still have been fatally defective in not alleging the tender of the money at the time when the possession was demanded.

The demurrer was therefore properly sustained to both these pleas, and thereupon the court ought to have entered a judgment of respondeat ouster as required by the statute. Rev. Code, 495, article 110. Instead of this, no judgment was entered on the demurrer, but a jury was forthwith emj>anelled to try the issue on the plea of non-assumpsit.

This irregularity is not expressly complained of; but the error is so palpable, and it is so plain that the merits of the case have not been presented in the court below, that we do not feel at liberty to pass it over. The judgment will therefore be reversed, and the cause remanded, with directions to the court below to enter a judgment on the demurrer, that the defendant do answer over to the declaration.