
    
      Fairfax’s Adm’r v. Lewis.
    May, 1840,
    Richmond.
    (Absent Brooke and Parker, ,T.)
    ¡Pleading — Dean urrer to Evidence When Proper to Set Aside — Case at Bar. — [n covenant, issue being-joined on the plea of covenants performed, and a demurrer to the evidence being filed by the plaintiff, judgment thereon is given for the defendant, ■which is reversed by this court, on the ground that the evidence does not shew performance by the defendant, though the facts shewn, if properly pleaded, may amount to a substantial defence to the action ; and this court proceeds to enter judgment that the plaintiff recover his damages sustained by occasion of the breach assigned in the declaration, and remands the cause for a writ of enquiry of those damages to be executed: Held, notwithstanding such judgment of this court, it was competent, and in this case it was proper, for the court below to set aside the demurrer to evidence, and allow the defendant to file additional pleas.
    Same — Case at Bar. — By agreement under seal between three parties, A. B. and C., A. assumes to pay B. 8333iíí dollars in land, at two dollars per acre, out of a tract which T. li. was bound to convey to him, and warrants the land to be clear of all claims for taxes ; B. binds himself to procure a proper conveyance of the said quantity of the tract to C. from T. E.; and A. engages to procure from T. G. a conveyance of the whole tract lo 0. To declaration by C. against B. assigning breach of B.’s covenant aforesaid, defendant pleads, that the plaintiff took on himself to procure, and did procure from A. an order on T. G. for a conveyance of the whole tract to the plaintiff, under which order the plaintiff procured a conveyance to himself to be made and delivered by T. G. of the whole tract: plaintiff replies, that T. G. 's wife was living at the time of the said conveyance, and she survived him, and never relinquished to the plaintiff her dower interest in the land, nor did T. G. ever execute to the plaintiff any deed containing any covenant that the land was free from all claims for taxes, nor did the plaintiff ever accept from T. G. any conveyance of the land in satisfaction of defendant’s covenant: on general demurrer to the replication, Htmn (dis-sentiente Tucker, P.) the plea is sufficient, and the replication naught.
    This is the continuation of the same controversy which was before this court in November 1823 ; reported *2 Rand. 20. The case, so far as material in reference to the subsequent proceeding's, was thus—
    On the 26th of April 1804, Philip Fitzhugh, Joseph Lewis junior and Ferdinando Pair-fax entered into an agreement, by which Fitzhugh purchased of Lewis a tract of land in Loudoun county, called Clifton, and after stipulating for the payment of a part of the consideration in other ways, assumed to pay “ the balance, of 8333dollars, out of a tract of about 19200 acres of land upon Bacon creek of Green river, Kentucky, which he the said Fitzhugh holds the obligation of Thomas Lang to convey in due form, when required by the said Philip Fitzhugh, and which land the said Fitzhugh hereby warrants to be clear of all claims for taxes or public dues ; rating said land at two dollars per acre, on an average.” Then Lewis bound himself “ to procure a proper conveyance of the said part of the said Green river land, to the amount of 8333% dollars at two dollars per acre as aforesaid, to the said Fairfax from the said Thomas Lang;” for which Lewis agreed to receive and Fairfax to make payment, in the manner particularly specified in the articles. “ And should the above agreement take effect, the said Fitz-hugh engages to procure from the said Thomas Lang a conveyance of the whole of said Green river tract of land to the said Fairfax, according to said Lang’s obligation to convey the same; and to receive in payment ” certain lands particularly described in the articles. It was further agreed between the parties, that the contract should take immediate effect when Fitzhugh should determine to take the Clifton estate, he having the option to accept or refuse the same upon actual inspection. The agreement was signed and sealed by Fitzhugh, Lewis and Fairfax : and a writing thereto subjoined under the hand and seal of Fitz-hugh, bearing date the 3d of May 1804, stated, that after viewing the Clifton estate, he thereby ratified the contract.
    *Upon this agreement, Fairfax brought an action of covenant against Lewis, in the late superior court of law for Loudoun county, assigning the breach, that Lewis had altogether failed to procure a proper conveyance of the said part of the Green river land, to the amount of 8333j/j dollars at two dollars per acre, to the said Fairfax from the said Thomas Lang, and that the said Thomas Lang had not, at the time of the execution of the agreement aforesaid, or ever after, a good, sure, perfect and indefeasible estate in fee, in and to the said Green river tract of land, whereby he could convey by a proper conveyance to the said Fairfax the aforesaid'part of the said tract.
    The defendant pleaded a general plea of covenants performed, on which an issue was made up. At the trial, the plaintiff filed a demurrer to the evidence, in which the defendant joined; and the jury was thereupon discharged, with the assent of the parties. Upon the demurrer to evidence, the court gave judgment for the defendant: and to that judgment Fairfax obtained a superse-deas, pending which he died, and the cause was revived in this court in the name of 'William Herbert his administrator.
    This court being of opinion that the evidence stated in the demurrer was not adapted to the plea of covenants performed, and on that ground holding that it was not sufficient in law to maintain the issue joined on the part of the defendant, reversed the judgment of the superior court, entered judgment that the plaintiff recover against the defendant his damages sustained by occasion of the breach assigned as aforesaid, and remanded the cause with a direction that the said damages should be enquired of by a jury.
    After the cause got back to the superior court, the defendant moved the court to set aside the demurrer to evidence, and allow him to file additional pleas; to *which motion the plaintiff objected, insisting that the court had no right or power, in that stage of the cause, to set aside the demurrer and allow additional pleas to be filed. Having taken time to consider the motion, the court set aside the demurrer, and allowed the defendant to file four additional pleas tendered by him, which were filed accordingly. To which opinions and proceedings of the court the plaintiff excepted, and his exceptions were made part of the record.
    Of the additional pleas thus filed, it is only necessary to notice the first and second. The first (after setting out the agreement upon oyer, and protesting that no demand of performance was ever made by Fairfax on the defendant) averred, that after the contract took effect, Fitzhugh did procure from Lang a conveyance of the whole of the Green river tract of land to the said Fairfax, at his request, according to the terms of the said articles. To this plea the plaintiff filed a general replication, and issue was thereupon made up.
    The second additional plea (after oyer of the agreement, and protestation that no demand was made by Ferdinando Fairfax on the defendant to procure a proper conveyance of the said part of the Green river land to the said Ferdinando from the said Thomas Lang) averred, “that he the said Ferdinando took on himself to procure, and did procure from the said Philip Fitzhugh, an order on the said Thomas Lang for a conveyance to be made to 1pm the said Ferdinando of the whole of the said Green river tract of land, according to the terms of said articles, under which said order the said Ferdinando procured a conveyance to him to be made and delivered by the said Thomas Lang of the whole of the said Green river tract of land, that is to say, on the 30th day of September 1804.”
    To this plea the plaintiff (protesting that no order was ever given by the said Philip Fitzhugh upon the said Thomas Lang for the conveyance of the said Green *river land upon any terms or conditions other than those upon which the said conveyance was stipulated to be made by the articles of covenant) replied, “ that the said Thomas Lang, at the time that the said conveyance is alleged by the said defendant to have been made by him the said Thomas Lang to the said Ferdinando Fairfax, that is to say, on the 30th day of September 1804, was a married man, and his wife was then living, and that she survived the said Thomas her husband, and that by the laws of the state of Kentucky, where the said land was situated, she the said wife of the said Thomas Lang would have been entitled to dower in the said land, and that no deed was ever executed by the said Thomas Lang and his wife to the said Ferdinando Fairfax of the said Green river land or any part thereof, in and by which the dower interest of the wife of him the said Thomas Lang was relinquished, nor did the said wife of the said Thomas Lang ever relinquish her dower interest in the said Green river land or any part thereof to him the said Fer-dinando, nor did the said Thomas Lang ever make and execute to the said Ferdinando any deed containing any covenant or stipulation that the said land was free from all claims for taxes or public dues, and that he never did accept from the said Thomas Lang any conveyance of the Green river land in satisfaction of the covenant on the part of the defendant, in the said articles contained, whereby the said defendant bound himself to procure from the said Thomas Lang a proper conveyance to the said Ferdinando Fairfax of the said part of the said Green river land.”
    To this replication the defendant demurred generally, and the plaintiff joined in the demurrer. The court held that the law upon the demurrer was for the defendant, and gave judgment that the plaintiff take nothing by his bill, and that the defendant recover his *costs about his defence expended: from which judgment the plaintiff appealed to this court.
    R. C. Nicholas for appellant.
    Johnson and Leigh for appellee.
    
      
       Pleading — Special Demurrer Matter oí Form. — In Norfolk & W. R. Co. v. Ampey, 93 Va. 123, 25 S. E. Rep. 226, it is said the objection for duplicity relates to form only, and does not go to the substance of the pleading; it being an objection to the form not to the substance of the declaration, it could only be availed of, even at common law, with all of its rigid rules of pleading, by special demurrer; the party demurring was required to lay his finger upon the very point, citing 4 Minor’s Inst. pl. 2, 939; 5 Rob. Pr. 305; Fairfax v. Lewis, 11 Leigh 243; Kennaird v. Jones, 9 Gratt. 189; Cunningham v. Smith, 10 Gratt. 257; Smith v. Lloyd, 16 Gratt. 310, 313; Grayson v. Buchanan, 88 Va. 251, 13 S. E. Rep. 457. See also, citing the principal case, Hunter v. Snyder, 11 W. Va. 213; Peabody Ins. Co. v. Wilson, 29 W. Va. 537, 2 S. E. Rep. 893; Burns v. Morrison, 36 W. Va. 426, 15 S. E. Rep. 63; foot-note to Cunningham v. Smith. 10 Gratt. 255. See generally, monographic note on “ Demurrer to the Evidence” appended to Tutt v. Slaughter. 5 Gratt. 364 ; monographic note on “ Demurrers” appended to Com. v. Jackson, 2 Va. Cas. 501.
    
   STANARD, J.

On the first and main question, that involving the enquiry whether or no the former judgment of this court in this case, adjudging the law on the demurrer to evidence in favour of the demurrant, and awarding a writ of enquiry, deprived the court below of the power to allow an amendment of the pleadings, my opinion is that that judgment was not an insuperable impediment to the allowance of such amendment, and that the court below, having the power to allow the amendment of the pleadings, possessed the consequential power to set aside the demurrer to evidence. My opinion is, that as a general proposition, an interlocutory judgment of this court, which, if originally rendered in the court below, would have left that court, at any subsequent term, while the judgment remained interlocutory, at liberty to allow an amendment of the pleadings, would not necessarily preclude the allowance of such amendment : and if I doubted on this question as a general proposition, I should think that it should be the law of this case, seeing that the law on the demurrer to evidence was decided in favour of the demurrant, not on the merits of the dpfence presented by the evidence, but on its supposed incoherence with the plea, — not because the defence was not good, but because in effect it was not admissible under the plea, as that plea was construed by the court; and that the judge who delivered the prevailing opinion, did so, not doubting that when the case returned to the court below, that court might, on adequate grounds, allow an amendment of the pleadings, if asked for.

*My opinion further is that the power to allow an amendment of the pleadings was rightly exercised in this case.

I am further of opinion that the demurrer to the replication to the second additional plea was rightly sustained.

If that plea was good, then the replication is manifestly bad. The plea, according to the pretensions of the appellee, alleges Fair-fax’s procurement from Lang of a conveyance of the whole land. If this be true, then Lewis was prevented by Fairfax from performing the covenant to procure a proper conveyance to Fairfax of a part, and is no longer liable to him on the covenant to procure such conveyance. Assuming this to be the construction of the plea, the replication attempts to involve in the issue on that plea, the extrinsic question, whether the-deed of conveyance contained a covenant against taxes ? (a covenant forwhich Lewis had not stipulated) ; and secondly the collateral and irrelevant question, whether the conveyance has been accepted in satisfaction of Lewis’s covenant ? on which Lewis could not take issue without an entire departure from his plea. Indeed, that the replication was good, has been but faintly maintained. The more serious and doubtful question is, was the plea good on general demurrer ? For if it be bad, the demurrer reaches the first error in the pleading, and Fairfax is entitled to judgment though his replication be.bad.

After the most anxious consideration, I have come to the conclusion that the plea, especially when coupled with the replication, is good on the general demurrer to the replication.

I assent to the proposition of the appellee’s counsel, that when a plea states facts which amount to a valid defence, the omission to state the conclusion of law, shewing quo modo the facts operate in bar of the action, does not necessarily render the plea bad on general demurrer. *If Fairfax procured from Lang a deed passing to him a good title to all the land, Lewis was necessarily discharged from his covenant to procure a proper conveyance from Lang to Fairfax of a part. This, I think, is substantially alleged by the plea ; and is admitted by the replication, except as to the dower right of mrs. Lang.

The plea alleges that Fairfax procured a conveyance of the whole land from Lang.

The term conveyance is sometimes used to signify the instrument or act by which a title is professed or attempted to be passed ; sometimes as the effect produced, by the operation of such act or instrument, on the thing and the title to it. Land is conveyed, only when the title to it passes. A deed for land may be made without passing a title therein. When the plea alleges that Fairfax procured a conveyance of the land from Lang, it in effect affirms that he has procured from Lang a deed passing a title in the land ; and in that is implied every thing necessary to produce that effect, and among other things Fairfax’s acceptance of the deed. If there was In this respect ambiguity in the plea, that is cured by the replication, which admits the conveyance. but controverts its efficacy in passing the title as to the dower right only. Had the replication stopped there, it might have been a good avoidance of the plea as a full and complete bar, and a general demurrer to it might not have been sustained ; but by adding other matter, not responsive to nor in avoidance of the plea, and on which the defendant could not take issue without a dejiart-ure from it, the replication is vitiated, and is, as I before said, bad on demurrer.

CABELL, X, concurred.

TUCKER, P.

It cannot be doubted, since the cases of Tomlinson v. Blacksmith, 7 T. R. 132, and Storer v. *Gordon, 2

Chitty 27, 18 Eng. C. L. R. 237, that of late years amendments are very liberally permitted where the justice of the case requires it, even, after a verdict has been rendered between the parties. In the former case, the plaintiff was permitted to amend his declaration by increasing the damages laid, according to the truth of the case as found by the jury ; and in the latter, the proceedings were set aside, and the defendant was permitted to put in a new jilea, the justice of the case appearing to demand it. It would seem then well established that a defendant may, for good cause shewn, even after a verdict against him, be permitted to have that verdict set aside, and to make a new defence upon the merits of the matter in controversy. If this be so, it is not perceived why an equal latitude is not allowable in cases of demurrer to evidence. As judge Roane well observes in Taliaferro v. Gatewood, 6 Munf. 320, the power to set aside the proceedings, for the purposes of justice, exists a fortiori in cases of demurrer to evidence, which are under the control and superintendence of the trying court: nor have I ever doubted that while the proceedings are yet in fieri, it is just as much within the legitimate authority of that tribunal to grant a new trial to either party after a demurrer to evidence, as after a general and unconditional verdict of a jury. It is not indeed good cause for such new trial, that the party demurring has discovered that it would have been safer for him to go before the jury (Green v. Judith &c., 5 Rand. 1); for he has made his choice — he has taken his chance, and he must abide it. But if he has been taken by surprise, or has any other cause for his application which would be held sufficient ground for new trial after general verdict, it would, I apprehend, be sufficient after demurrer. The fact that he has ventured to rest his case upon the law will .not exclude him from the privilege of setting aside the demurrer for the purpose of amending, if justice requires it. Of *late years, parties are not held rigorously to abide by their pleadings. He who-demurs, is often permitted to withdraw his demurrer, even after it has been argued and the matter has stood over for judgment, aftd to plead or reply de novo, in order to let in a trial of the merits. Tidd’s Pract. 766, (p. 6S7 of 2d american edi.). And he whose pleadings is demurred to may in like manner waive his joinder in demurrer and ask leave to amend. Now it is not perceived why greater rigour should prevail in relation to demurrers to evidence, where it is obvious that the justice of the case requires them to be set aside.

Taking then the powers of the court to be the same on demurrers to evidence as in other cases, there can be no doubt that it was competent to the court in this case, for good cause shewn, to allow new pleas to be filed, and to set aside the judgment, writ of enquiry, and demurrer, unless that power was taken away by the fact that the judgment here was a judgment of the court of appeals.

Was there good cause shewn ? Clearly so, I think, upon the face of the record. The evidence produced and set out in the demurrer, furnished, as this court thought, a good defence, but two out of three judges thought it did not fit the plea. The third judge inclined to think it did. Here then a good defence was excluded, because the pleader erroneously supposed it would be proper under the plea pleaded; in which opinion a most learned judge concurred. What case could more imperatively call for the exercise of the privilege of amendment? None whatever. It is a stronger case than those cited at the bar, and justice would indeed merit reproach, if, when a complete defence appears upon the record, it should not be made available to the party, because his plea is not technically proper, although he prays to be permitted to make it so.

*Itonly remains, on this branch of the case, to enquire whether the right to set aside the judgment and writ of enquiry, together with the demurrer to evidence, is to be denied because that judgment was rendered by this court ? I think not. An inferior court cannot indeed call in question, or controvert, or overrule a judgment of this court; but it may, while the cause is still in fieri, unquestionably set aside an interlocutory judgment of this court, for matter not in conflict with it. Where the judgment is final, indeed, this cannot be, for then there can be nothing further done ; but where it is interlocutory, and something remains to be done, the case being within the power of the court below) it is competent for that court, for any cause not impeaching the judgment itself, to set'it aside. It is in effect its own judgment, being made so by the provisions of the statute. Of this we have a parallel instance in chancery causes, in which though a jot or tittle of the decree of this court cannot be varied for any matter which was in the record here, it may yet be reviewed and reversed for new matter, precisely as the decree of the chancellor himself might be. Cases at law indeed have not hitherto occurred, but it does not therefore follow that they ought not to rest upon a like principle. Upon the whole, therefore, I am of opinion that there was no error in setting aside the demurrer, and giving leave to the defendant to file his additional pleas.

This brings us to the consideration of these additional pleas. Only one of them, with the replication to it, requires examination. It is the second plea, which alone seems to have been held good by the court, and upon which a judgment was rendered in bar of the plaintiff’s action. That judgment, I think, was erroneous; the plea being, as I conceive, although imperfect and insufficient.

The first objection to it is its uncertainty and duplicity : (though this is only ground for special demurrer). *1 found myself at a loss to determine what was the point on which the defendant 'rested his defence. The facts set forth in the demurrer to evidence might have suggested any one of three several grounds of" defence : 1st. that Rairfax discharged Lewis from the duty of procuring the conveyance, by undertaking to procure it himself ; 2. that Lewis was disabled from procuring it, because Rairfax had procured the conveyance of the whole tract; and 3. that Rairfax had actually acquired such a conveyance as he was entitled to by the contract. Now this plea would cover, sustain and justify any one of these defences as well as another, and hence it is double and therefore bad. No one of the defences, indeed, is perfect in itself: but it is not essential to duplicity, that the matters pleaded should be well pleaded; though imperfect, if more than one issuable matter is tendered, the plea is double. Stephen on Pleading 1st edi. 271, 2; S Bac. Abr. 44S. As where defendant pleaded justification and a release, without alleging the release to be by deed, yet the plea was held double. So here, the fact that Rairfax took on himself to procure the deed from Lang if properly pleaded, would itself have been a bar, whether he did procure it or not; for if he took upon himself to do it, and discharged Lewis from doing it, he could have no cause of action. Yet if the plaintiff had taken issue on that fact, he would have been told that the gist of the plea was the disabling of Lewis from performance; or that he had himself procured such a conveyance as he was entitled to. Rrom the mode of pleading adopted, the plaintiff is at a loss what the material point is which he ought to traverse ; and this is a principal objection to duplicity in pleading. S Bac. Abr. 444. Whatever he does traverse may be declared to be the wrong point, and the defendant may shift his position as soon as he finds his adversary' intends to assail it. Of this we have had an evidence in the argument. Though the defendant’s *counsel deny that the plea is double, yet they differ themselves as to the defence it offers. One considers it a plea that Lewis was excused from performing ; the other, a plea that the plaintiff had got his title. The excuse implies that the deed was not made; while in the other aspect the plea avers that it was made. It is not wonderful that the plaintiff was at a loss to reply, or that he has not replied so as to meet the views of both counsel. His reply goes mainly to the fact of his getting the title he contracted for ; and accordingly the replication is assailed for not answering the plea in the other aspect.

I think, however, we may safely take it that the defence which this plea is designed to offer is, that by procuring the conveyance from Hang, Fairfax had put it out of Hewis’s power to procure it. This is indeed the only XJlausible mode of considering the plea : for it could not be good as a plea that the plaintiff had taken upon himself to procure the deed, and had absolved and discharged the defendant from his duty to do it, without an express averment to that effect; nor could it be good as a plea that the plaintiff had got a good title (which the defendant was bound to procure) or a title with which he was satisfied, because one or the other of these facts should have been averred, in order to make the plea good in this aspect. Let us then see what are the essentials to make this a good plea of prevention, and whether prevention is of itself a sufficient answer to the breach assigned in the declaration. I think it is not.

The ground upon which the plea in this aspect rests is, that as, through Fairfax’s agency, Hang had parted with the title, Fair-fax had rendered it impossible for the defendant to procure a proper conveyance according to his contract. Now as one of the constituents, or rather a's the very gist of this defence is, that the deed from Hang to Fairfax passed the title out *of Hang, so the plea ought to have averred every fact which was essential to make the deed effectual. It was not enough to say that Fairfax had procured a conveyance to him to be made and delivered by Hang, but it should have been also averred that it had been accepted by Fairfax. To say nothing of the defect in the plea in not alleging to whom the conveyance was delivered, it would seem that delivery does not of necessity imply acceptance. Delivery, in one sense, may be made to a stranger for me, or to my agent not authorized to accept; and if I do not accept afterwards, the deed is ineffectual. 4 Cruise’s Dig. 11, 30. It is true that the title passes immediately upon the execution and delivery, provided there is subsequent assent on the part of the grantee (Ibid.) but otherwise not. Now the essence of the defence here is that Hewis could not procure a conveyance, because the title was in the plaintiff by the operation of Hang’s deed. To give it that effect, it must have been accepted by Fairfax. The acceptance was rightly regarded by all the judges on the former appeal as an essential fact in the defence upon this point. In considering the demurrer to evidence, judge Green thought the fact of acceptance sufficiently proved ; but the question now is, not whether the defendant may not be able to prove the fact, but whether, in making out his defence by plea, he should not have averred it. I am of opinion that he should, and that the omission is a defect in substance, which renders the plea bad upon general demurrer.

Again, it was not enough to aver that a deed had been made by Hang, but the plea should have alleged the execution of a proper conveyance; that is (as judge Green very properly interprets the contract) of a conveyance of a good title. The covenant, he says, “was substantially a covenant to procure a good title ; for if Hang had no title, his deed could pass nothing, and could not therefore be called a conveyance. And in *like manner, if his title was in any degree imperfect or incumbered, his conveyance would be to that degree imperfect and unavailing.” 2 Rand. 38. And I will add, if the conveyance itself was imperfect; if it fell short of that which Hewis was bound to procure ; if there was any thing undone which he ought to have done, and from doing' which he has not been disabled by the plaintiff’s act, he has broken the covenant, and is liable to damages commensurate with the breach. In order therefore to make out this defence, his plea should have averred that Hang had made a proper conveyance, that is, a conveyance of a good title. If his conveyance does not pass a good title, it is still Hewis’s duty to procure him to make such conveyance. If he has no title, it has not been Fairfax’s act that has prevented Hewis’s compliance. If he has an imperfect title, and there is some outstanding title in another, the conveyance of the imperfect title by Hang to Fairfax can be no barrier to Hewis’s procuring Hang to acquire and convey the outstanding title. And lastly, if the conveyance be an improper conveyance ; if it be ineffectual to convey such right as Hang had ; if it be ineffectual to bar the dower of his wife, there is still something undone which Hewis under his covenant is required to do, and which he is not prevented from doing by the imperfect or defective conveyance. What, for instance, hinders his procuring a release of the widow’s, dower, and extinguishing that claim which he was by contract bound to see extinguished ? What, hindered his compelling Hang in his lifetime to remedy the omission of the general warranty in the deed, either by the surrender of the old, and the execution of a new deed with proper covenants, or by some other equivalent means ? Unless therefore the conveyance was of a good title, there waá still something undone which Hewis might yet have done, and to which the deed from Hang to Fairfax could form no barrier. Hence the necessity *of averring the deed to have been a proper conveyance, which would exclude at once every inference that something remained to be done, beyond execution of an imperfect and ineffectual deed.

It may be said, indeed, that Fairfax’s conduct may have absolved Hewis, because he took the matter on himself. Very possibly : but that would not prove that he had a right to make this defence, but only that he might perhaps successfully have made another.

The plea, however, is further defective in not answering the whole breach. The breach is not only that Hewis had failed to procure a proper conveyance from Hang, but also that Hang had not good title whereby he could convey. This was within the covenant, if, as judge Green says, and as I think, it was substantially a covenant to procure a good title. Now to this allegation there is no reply. It stands unanswered by the plea, and is therefore admitted. Consequently, as Bang had no title, his conveyance operated nothing, (as judge Green has very properly decided,) and it cannot therefore have prevented the performance of his contract by Bewis.

We come now to the replication. Admitting the plea to be good, does not the replication offer a good avoidance in substance, which will be sufficient on general demurrer ? Whether the replication be or be not double, is unimportant, as the defendant did not demur specially. But in truth he was bound to reply double, as the plea was double ; for where that is the case, if the party does not demur for doubleneSs, he is obliged to answer both parts. 1 Ventr. 272 ; 5 Bac. Abr. 445.

The question, however, is whether this replication denies or avoids the matter of the plea, considered in either aspect. Divested of technicality, the defence of the plea is twofold: 1. that the title having been procured from Bang by Fair-fax. Bewis was disabled from compliance ; 2. that Fairfax had such a conveyance as *he was entitled to. To these allegations it is answered, that Bang was a married man, and that the widow’s dower was not relinquished; and moreover, that Fairfax never had accepted any conveyance of the Green river land in satisfaction (that is, as I understand it, in compliance with, or in fulfilment) of the defendant’s covenant to procure' a proper conveyance from Bang. Now this I take to be a full answer to the whole plea. It negatives the fact that the title was no longer in Bang, by denying that the deed was ever accepted ; and it further negatives the inference that Bewis was prevented from complying with his covenant in all things by Fairfax’s act, since it shews that there was an unconveyed right of dower, which Bewis was bound to procure to be relinquished, and which he might have procured to be relinquished if he had chosen to do so. So much for the first aspect of the plea. Then, as to the second, the allegation of the outstanding right of dower completely negatives the assertion that the plaintiff had got such a deed as he was entitled to. It is said, indeed, that the replication does not aver that the widow is still living. To this, several replies present themselves. First, it was unimportant; for though she be now dead, that does not excuse the defendant from failure to procure her relinquishment, that failure having been a breach for which the plaintiff was entitled at least to nominal damages. Secondly, when a party is shewn tobe living at one time, the continuance of life is presumed until the contrary is proved. The death subsequently, is a fact that must come out from the other side, if it will avail any thing. For if the proof of the death of any person known to be once living is incumbent on the party who relies on the death (Starkie on Ev. part 4, p. 457; Wilson v. Hodges, 2 East 312), it would seem to follow that where the plaintiff alleges that the person was living on a given day, if the defendant *relies upon his subsequent death, it is incumbent on him to plead it.

Upon a full view of the whole matter, I think that judgment should be given against the defendant upon the second plea, and that the cause should go back for trial upon the original plea, which was never withdrawn, and upon the first additional plea, on which there is an issue made up, and which seems to me to offer a fair defence and to bring the merits fairly forward for trial. It is very clear in this case that the plaintiff contracted for a good title, and gave a valuable property for that which he expected to get in return. It is very probable he has been overreached, and that what he purchased may be worth but little after he gets it, as he seems to have attempted to prove that the land was not worth the taxes. Be this as it may, he is entitled to have what he contracted for, and the court should endeavour to see the pleadings so moulded as that justice shall be done to both parties. Hitherto this desirable object seems not to have been attained.

I am of opinion to reverse the judgment.

Judgment affirmed.*  