
    
      Peter C. Gaillard & Arthur P. Gaillard vs. George A. Trenholm.
    
    Declaration on bond conditioned to execute, or procure to be executed, sucli titles, to a certain plantation, “ as shall be decreed by the Court of Equity, ample and sufficient for the conveyance and granting of a good and indefeasible title in fee simple:” breach — that defendant had not executed, or procured to be executed, such titles : plea — that defendant had tendered a good and sufficient title in fee simple:— Held, on demurrer, that the plea was bad, because it did not allege that the title tendered had been adjudged sufficient by the Court of Equity.
    On demurrer judgment given against the party who committed the first fault in pleading.
    0.n general demurrer, a judgment overruling a plea is final.
    
      Before Evans, J. at Charleston, Fall Term, 1851.
    The report of his Honor, the presiding Judge, is as follows.
    “ The action was on a penal bond with a condition, in which it is recited, that the defendant had sold the plaintiffs a tract of land, and was to cause or procure to be delivered to them, good and sufficient legal titles for the same ; but, on investigation of the title, doubts had arisen which could only be solved by the Court of Equity. And it is further recited, that the said defendants having delivered possession of the land, the plaintiffs had paid over $4500 — the purchase money; and, for the purpose of indemnifying them for all losses for and on account of the said sum or purchase money, the defendants undertook to execute or cause or procure to be executed, “such titles to the said plantation, as shall be decreed by the said Court-of Equity, ample and sufficient for the conveyance and granting of a good and indefeasible title in fee simple,” and to save harmless, from all loss from and on account of the said purchase money, until the execution and delivery to them of such titles as aforesaid. The declaration is framed on the bond, and the condition is fully recited. The breach alleged is, that the defendants had not executed, or caused or procured to be executed, such titles as had been decreed to be sufficient by the Court of Equity, and had not indemnified the plaintiffs from all loss for and on account of the purchase money, until the delivery and execution of the titles aforesaid. To this declaration, the defendant pleaded, that he had tendered a title, signed and sealed by himself and one Francis S. Holmes, in whom the fee simple of the land was vested ; and did thereby convey to the plaintiffs a good and sufficient title in fee simple to the land, free from all trusts and incum-brances, under which the plaintiffs have held and enjoyed, and still hold and enjoy, the said plantation.
    
      “ The plaintiffs, in their replication, without denying the sufficiency of the title, say they were not bound to accept it, but were entitled, according to the condition of the bond, to such titles as the Court of Equity should decree to be good and sufficient ; and, therefore, they have not been indemnified according to the stipulation in the bond — and for this reason, they had rejected the title which had been tendered to them. This is the substance of the replication.
    “ To this replication, the defendant demurred — and set down as causes of demurrer, that the replication is a departure from the declaration, and uncertain and insufficient, and does not answer the plea, nor meet the defendant’s traverse.
    “ 1. I am of opinion the replication is not a departure from the declaration — nor is it uncertain or insufficient. In the declaration, the cause of action as set forth is, that the defendant had not made, or caused to be made, such title as the Court of Equity had decreed to be sufficient. Ko new cause of action is set forth in the replication; but they insist they are not hound to receive any other title.
    “ 2. I am of opinion the replication is a denial of the sufficiency of the defendant’s plea, by the allegation that he was not bound, by the condition of the bond, to accept of the title tendered ; and if so, it was not necessary he should traverse the sufficiency of it to convey the estate in fee simple, free from all trusts and incumbrances; that was immaterial if he was not bound to accept the title tendered. The question which, I suppose, the defendant desired to make is, whether the tender of a sufficient title to convey the estate in fee, is not a performance of the condition of the bond. This question, the plaintiffs could not make on demurrer to the plea, without admitting that the title tendered was sufficient to convey the estate in fee simple, free from all trusts and incumbrances, which he was not bound to do. I do not see, then, that he could reply otherwise than he did, so as to make the question, whether the defendant could save his bond m any other way than that, pointed out in the bond itself. The demurrer is, therefore, overruled. If the defendant appeals, this will serve as a report of the case.”
    The plaintiffs having given notice of appeal, his Honor added to his report as follows.
    “ In deciding the demurrer, I wrote out a statement of the case, with the reasons of my judgment, in overruling the demurrer. I decided it with great hesitancy and much doubt, and expressed my desire, that the case should be carried to the Appeal Court; but the order, that the defendant should answer over, shifted the appeal on the other side. That the Court of Appeals may have the whole case, the opinion on the demurrer should be printed as part of the report. My attention has been directed to the case since, and I have greater doubt than I had at the hearing. The action was on a bond for the performance of covenants. The object was to recover damages. The plea was spoken of as a plea of performance; and if so regarded, I think the replication was an answer to it, and not a departure. If it was a plea of non damnificatus, as I am now inclined to think it was, then the replication did not answer the traverse of the defendant’s plea. It was because I doubted the correctness of my decision, that the respondeat ouster was awarded. If I was wrong, the error can be corrected.”
    The defendant appealed, on the grounds,
    1. That the plea was a good answer to the declaration, and the replication was no answer to the plea.
    2. That, if the matter in the replication had been good, the proper course would have been to demur to the defendant’s plea.
    The plaintiffs also appealed, on the grounds,
    1. That his Honor, the presiding Judge, erred in granting a motion for leave to plead over, after having previously decided that the replication was an answer to the defendant’s traverse of non damnijicatus, and overruled the demurrer to such replication.
    2. That his Honor, the presiding Judge, erred in refusing the plaintiffs’ motion for leave to execute a writ of enquiry, and assess the damages.
    Petigru, for defendant,
    cited 4 Mad. 255;'2 Saund. 84; Com. Dig. Pleader, G. F. 7; Steph. PI. 214.
    
      W. G. DeiSeussure, contra,
    cited Bac. Abr. Pleas &. Pleading, L ; Com. Dig. Pleader, F; 3 Coke Litt. 304, a; System of Plead. 214, 217, 328, 430, 428; 3 Humph. 104 ; 5 Ala. 341; 4 McC. 94; 1 Ch. PI. 563, 621; Tidd Pr. 637; Steph. PI. 58, 185, 337, 410, 415; Mans, on Dem. 45, 78; 3 Cro. Car. 256; 2 Wils. 8; 11 Johns. R. 56 ; 16 Mass. R. 129 ; 10 Eng. C. L. R. 44; 1 Tread. 126: 5 Taunt. 386; 2 Johns. R. 413; 20 Johns. R. 33; Woods Con. 772, 775, 777, 780;' Shep. Touch. 377, 381, 384, 389; 2 Johns. R. 462 ; 1 Saund. 117, note 1; 1 B. & P. 638; 3 Cowen, 313; 5 Johns. R. 153; 50 Eng. C. L. R. 531; 5 Cranch, 257; 1 McC. 85 ; 27 Eng. C. L. R.
   The opinion of the Court was delivered by

O’Neall, J.

The very able argument which this case received, would, if it were attempted to be followed in the opinion, lead to an almost interminable course of reasoning, and examination of the authorities cited. But that I do not think is ever necessary. Argument completes its purpose, when it satisfies the minds of its auditors of the truth of that which it was intended to prove. A decision is altogether another matter; it should announce the resolution of the Court, as it was formerly called, in the clearest manner possible, and sustain it by no more reasons than may be necessary to make it plain.

In this case, I come to my conclusion in a very plain way.

The bond, upon a fair construction of its condition, means, that the defendant should cause to be executed to the plaintiffs such titles to the land, as should be adjudged by the Court of Equity to be sufficient. The duty was upon him to procure this decision of the Court upon the title which he was prepared to render and give. It may be, that there may be some excuse, which may relieve him from obtaining such a decision. If, for example, he had filed the bill, and the Court on hearing it, had refused to adjudge the matter, then it may be that this would excuse him.

Looking at the bond in this way, there can be no doubt, that the plea is no answer to the declaration, which relies upon the defendant’s failure to make such titles to the plaintiffs as were adjudged by the Court of Equity to be sufficient, as a breach of the condition of the bond. A plea must traverse, or confess and avoid every material allegation in the declaration. (1 Chit. PI. 523.) This the defendant’s plea has not done. It is merely an affirmance that he had tendered a good title, and that the plaintiffs were in no respect damnified. It omitted to meet the allegation, that the defendant was bound to tender a title adjudged to be sufficient by the Court of Equity. The replication to the plea is, perhaps, little more than an argument against the plea; and, in this respect, it may not be good. But that is perfectly immaterial. For the defendant’s demurrer carries us back to the first fault, in pleading : that is found to be in the defendant’s plea not having sufficiently answered the declaration. The plaintiffs, therefore, on the demurrer, were clearly entitled to judgment for their debt. Respondeat ouster could not be awarded in such a case. On special demurrer the judgment is? that the party plead over, or amend on payment of costs.— McFarland vs. Dean, (Chev. 64). But on general demurrer (which was the case here) the judgment is final. Moore vs. Burbage, (2 McM. 168).

It may be, as I think is very probable, that the plaintiffs on executing their writ of inquiry, or rather, on submitting the condition of the bond to the jury to inquire for their damages, will not be entitled to more than nominal damages, if it should turn out, as the defendant alleges, that he has tendered good and sufficient titles: but the burden of shewing this will be upon the defendant. Unquestionably, the plaintiffs cannot recover back their purchase money, unless they have surrendered to the defendant the possession of the land. The utmost damages which they could ask, would be the expenses of clearing away and removing the doubts upon their title (if there be any) in the Court of Equity.

The motion to reverse the decision on the demurrer is dismissed : that to reverse the decision allowing the defendant to plead over is granted.

1 EvaNs, Wardlaw, Frost, Withers and Whither, JJ. concurred.  