| Ill. | Dec 15, 1853
The declaration contained nine special counts on written obligations, with the common counts.
To these, there were sixteen pleas. Several demurrers were sustained to the 9th, 10th, 11th, 13th, 14th, and 15th special pleas; and the first question we notice, arises upon these demurrers.
The demurrers to the 11th and 13th pleas, should have been-overruled. The eleventh sets up a sufficient defence. Defendants conveyed a tract of land, which was the consideration of the obligations sued on, with covenant of warranty against all persons. A breach of this covenant is the defence set up. It shows that defendant had a title bond only, and subject to a vendor’s lien for the purchase-money; and that the land was sold under that lien, on the 23d of April, 1842, by virtue of an order or decree of the proper court of Haywood county, Tennessee, where the land lay, and an account of the default and neglect of defendant.
The propriety of such a defence, where parties do not clearly manifest an intention to rely upon their covenants alone, we shall regard as decided in Gregory et al. v. Scott, 4 Scam. R. 392.
In Tyler v. Young et al. 2 Scam. R. 446, a similar plea was sustained.
The thirteenth plea sets up the same consideration; and as a defence, the fraudulent and deceitful representations of defendant, that he had a good title — knowing that he had no title whatever — and that he has not now and never had any title.
The doctrine of caveat emptor, applicable to sales of real estate, leaves purchasers to protect themselves by covenants of warranty, except for the frauds of vendors, against which, courts of law as well as equity will give relief, by refusing an enforcement of the contract. Ownigs v. Thompson et al. 3 Scam. R. 502. Fraud would equally vitiate a contract, whether by parol or in writing, or with or without covenants of warranty.
The only deficiency noticed by the court, in Waun v. McGoon, 2 Scam. R. 77, to a similar plea, was a want of a particular description of the land. This plea sets it forth by metes and bounds. These two pleas set up bars to this action, and demurrers should have been overruled.
The other pleas demurred to, are insufficient, for want of traverses of the facts represented to exist by the defendant, so far as fraud is attempted to be set up. The ninth plea should have alleged that the debts did exceed $2,100; that defendant well knew it, and that plaintiff was ignorant of the amount. There is no traverse or denial of the existence of the facts, which the plea alleges were fraudulently represented as existing, unless we hold it to be a sufficient allegation of fraud, to allege, in general terms, that certain fraudulent representations were made. This is not sustainable upon the principles of pleading or of justice. The facts constituting the fraud, should be set forth in the pleading.
The 10th plea oilers an excuse for plaintiff’s ignorance of the state of his accounts, but in all other respects is liable to the same objections as the ninth.
The 14th and 15th pleas allege the consideration of the obligations sued on, to be title to a certain tract of land, conveyed with warranty; and set up a failure of the consideration to consist in a failure of title, by reason of a decree in chancery, obtained by the vendor to defendant and another, for the sale of said land for the purchase-money due therefor, and under which it was sold.
The 15th plea sets up as a failure of consideration, that the land was legally sold to satisfy the purchase-money due for said land, from defendant and another.
The allegations will be taken most strongly against the pleader, who is supposed to set forth all the facts, or enough to sustain his action or defence.
These pleas are defective for want of material allegations. There is no allegation of a vendor’s lien, incumbering the title in the hands of defendant or plaintiff.
A decree or a judgment for the purchase-money does not necessarily imply a vendor’s lien; nor would a sale without such lien necessarily transfer a good title or incumber the title previously conveyed, although it might be under a decree or judgment for the purchase-money, and might also be legally made. It might be on notes secured by mortgage of other property, or by sureties; either of which, if not otherwise agreed, might discharge the land of a vendor’s lien for the purchase-money. See 3 Sugd. on Vend. 182, 183, c. 18.
Although such a sale might be good for such title as defendant had at the time, yet the pleas show that he had conveyed long before to plaintiff, and are silent as to a conveyance to defendant by his vendor. We will presume, as against the pleader, that such conveyance had been made. There is not even a general averment of a lien, nor that either of these sales incumbered the title to plaintiff’s prejudice.
The plaintiff; on the trial, offered in evidence the transcript of a record of the chancery court of Haywood county, Tennessee, between Thornton Easley, complainant, and James T. Slack, defendant; and which was certified under the private seal of the clerk and master of said court, there being no public seal provided: his official character, and the form of his certificate, are duly certified to by the presiding chancellor of said court.
This record was excluded, and we think erroneously. The authentication appears to be conformable to the act of Congress of 26th May, 1790. (See act in App. R. S. 45, p. 624.)
The certificate in Craig v. Brown, 1 Peters, C. C. R. 353, was held insufficient, because the judge did not certify that the clerk’s certificate was'in due form. The certificate in this case is full and complete under the act; and so far as this question is concerned the record was admissible in evidence.
We also think it clearly admissible in evidence on the issues under the 11th and 16th pleas — the latter of which particularly connects the defendant as a privy in the transaction passed upon in the decree.
It is unnecessary here to determine how far he is bound or concluded by that decree, on account of his privity in the contract. It is enough to entitle it to admission, that it affords primé facie evidence of facts material to these issues.
The question as to what effect the record should have in evidence, does not arise in this record, because it was wholly excluded, and can only be raised after it is introduced.
The court should have admitted the bond and deposition of Thornton Easley, under the issues. No valid objection to either has been made before the court, and each is admissible, as tending to prove the issues for plaintiff. The bond was admissible, as' tending to prove the character of defendant’s title, and that a vendor’s lien might or did exist under it, as settled by the law of Tennessee. Eskridge v. McClure et al. 2 Yerg. 84. So, also, of the deposition; and that there had been an ouster by paramount title.
All evidence tending to prove the material facts, or either of them, is admissible, although it may not alone establish the whole case. Rogers v. Brent, 5 Gilm. R. 587.
The defendant having offered a promissory note only in evidence, the court properly referred the assessment of the damages to the clerk.
Judgment is reversed, and cause remanded for a new trial.
Judgment reversed.