| Ark. | Jan 15, 1861
delivered the opinion of the court.
This was an action of assumpsit, brought by Mrs. Cable, as administratrix of the estate of Westley L. Maulding, deceased, on a promissory note for $300, payable to her intestate.
The defendant pleaded non-assumpsit, to w’hich issue was joined; and also a special plea of total failure of consideration, in which it was averred, that the note sued on was executed for the residue of the purchase money for a certain tract of land which the defendant had contracted to purchase from the plaintiff’s”intestate and one Alexander Rudd, who agreed and were to convey the land to the defendant by deed, with covenants of warranty, immediately, and for no other consideration; and the plea further averred, that Maulding and Rudd never conveyed the land to the defendant; and that neither at the time the note was executed, nor at any time afterward, had they, or either of them, any title to the land, and were not able to convey the same. To this plea the plaintiff demurred, assigning for causes of demurrer:
1st. “ It is not alleged that the contract for the’ purchase of the land was not in writing, and no profert of the same is made.
2d. It is not alleged whether Maulding and Rudd executed a deed of conveyance to the defendant.”
The court sustained the demurrer, found for the plaintiff on the issue joined to the plea of non-assumpsit, and rendered judgment accordingly; to reverse which, the defendant has appealed to this court, and assigns for error the decision of the court in sustaining the plaintiff’s demurrer.
We think the demurrer was well taken. The contract set up in the plea is not alleged to be in parol; and being such, as by the statute of frauds, is required to be in writing, the presumption is that it is so; and being in writing, it should have been pleaded with profert, under the provisions of our statute, in order that the court, in the exercise of- its appropriate function —the construction of a written contract — might determine whether the contract furnished the defence claimed under it. Duncan vs. Clements, 17 Ark. 279" date_filed="1856-01-15" court="Ark." case_name="Duncan v. Clements">17 Ark. 279.
It is insisted, however, that because the plea alleges the inability of the vendors to make title, it is distinguishable from that in Duncan vs. Clements, supra, which alleged the failure merely of the vendor to make, or offer to make a deed before suit brought. We cannot perceive how this distinction dispenses with the necessity of profert. For instance: Suppose it had appeared on oyer, in the case now before us, that by the terms of the contract between the parties, the vendors were to make a quit-claim deed only, would their inability to make a. valid title have been a failure of consideration? Certainly not. And without profert, how could the court know., in making up the issues upon the pleadings, whether the contract was as we have put it for illustration, or whether it was as alleged in the plea? But the plea is also defective upon another ground. It is not distinctly alleged — as it should have been — whether or not a deed to the land was executed by the vendors; because, if a deed was so executed and accepted by the defendant, then, though no title passed, the defendant could not avail himself of the plea of total failure of consideration, unless there had been an eviction, or its equivalent. Grace vs. McDaniel, 15 Ark. 487; Lewis vs. Davis, 15 Ark. 235" date_filed="1854-07-15" court="Ark." case_name="O'Neill v. Henderson">15 Ark. 235. All that is alleged might be'true, though a deed was executed. The language of the plea, in this particular, is, especially in the connection in which it is employed, equivocal and insufficient.
Let the judgment be affirmed.