1 Tenn. 253 | Tenn. Sup. Ct. | 1807
Lead Opinion
Debt upon a bond conditioned for the conveyance of a tract of land.
The declaration set out the condition, which was not usual. Plea, payment and issue.
On the part of the defendant, it was objected that the plaintiffs cannot recover until they prove a demand and refusal of a deed agreeably to the first section of the Act of 1794, c. 5, which enacts "That it shall be lawful for the personal representatives of a deceased person to make titles where the deceased had given obligations for lands; but the representative shall not be bound to make a title until the bond is recorded," with this clause "nor shall the holder of obligations charge the personal estate of such decedent or decedents, until they shall have produced the obligation duly authenticated, and demand made, and refusal or failure to comply therewith, on the part of such representative or representatives."
It was admitted by the defendants' counsel, that, if the condition of the bond had not been set out there would not have been any necessity to make this proof unless the defendant had taken advantage of it by plea; but as the condition was set out in the declaration, and as the Act of Assembly required proof of a demand before the personal estate could be charged, this proof ought to be made by the plaintiffs, though no other plea than payment had been offered. Such proof as is contended for by the defendant's counsel is not necessary under the plea of payment. ORIGINAL NOTE. — The law is with the opinion of Judge HUMPHREYS, as will appear by Doug. 668; Vaugh. 8, 58; Cro. El. 64; 3 Wils. 277; 8 Co. 120; 1 Com. Dig. Kyd's ed. 208; 4 Bac. Ab. title Statute, L. 3; 12 Mod. 540.
Dissenting Opinion
was inclined to think that, as the plaintiff had made the condition a part of his declaration, he ought to prove the demand and refusal contemplated by the act.
