
    Wilkins v. Jessup.
    
      A. sued B. on a promissory note for 200 dollars. Answer, that the note was given as part consideration for two pieces of land (describing them) which G, acting as A.’s agent, had sold and conveyed to the defendant by general warranty deed, for 500 dollars — -representing A.’s title to be perfect; that the defendant, confiding in C.’s statement, paid 300 dollars, and gave "said note for the balance; but that at no time hitherto had A. had good title to one of the pieces of land, valued at said sale at 200 dollars. Demurrer to the answer sustained.
    
      Held, that the defense to which the demurrer was sustained was pleaded as a total failure of consideration. \
    
      Held, also, that there could be no such failure unless there was a breach of some engagement in the deed.
    
      Held, also, that the answer should have recited the covenants in the deed and alleged a breach.
    APPEAL from tbe Parke Circuit Court.
   Davison, J.

Jessup sued Wilkins on a promissory note for tbe payment of 200 dollars. Tbe' note is dated April tbe 10th, 1848, and was made payable at date.

Tbe defendant answered tbe complaint. His answér states that tbe note sued on was given in part consideration for tbe west half of tbe soutb-west quarter of section 21, in township 17, range 7, also, tbe south-east quarter of tbe south-east quarter of section 20, in tbe same township and range — making in all, 120 acres; that on .or about tbe 8th of October, 1847, one Jabez Hunt, acting as tbe plaintiff’s agent, sold, and, by general warranty deed, conveyed to tbe defendant tbe above described lands for 500 dollars, and represented to him— be being ignorant of tbe fact — that tbe title to tbe lands was" unincumbered, and that Jessup, tbe plaintiff, bad good title to tbe same; and tbe defendant, confiding in Hunt’s statement, paid Jessup 300 dollars on the lands, and excuted said note. It is averred that at no time hitherto has tbe plaintiff bad tbe title to the said west half of tbe south-west quarter of section 21, in township 17 north, of range 7 west — forty acres; and that, at tbe sale as aforesaid, tbe tract last aforesaid was valued at 200 dollars.

Tbe plaintiff demurred to this defense, and for cause assigned — 1. No eviction is alleged; 2'. Tbe defense does not show who has title to tbe land; 3. Facts sufficient to bar tbe action are- not stated.

Tbe demurrer was sustained. And there being other issues, tbe cause was submitted to tbe Court, who found for the plaintiff. And over a motion for a new trial, there was judgment, &c.

8. F. Maxwell, for the appellant.

The defense, to which the demurrer was sustained, is pleaded as a total failure of consideration. "When the plaintiff received the note, he executed a deed to the defendant. Now, there could be no such failure, unless there was a breach of some engagement in the deed. If it contained a covenant of seizin, and there was .an entire want of title in the grantor, that covenant was broken as soon as the deed was executed, and such breach would have constituted a sufficient har to the action; but of this there is no' averment- in the answer. It is not enough to aver that at no time hitherto has the plaintiff had title, unless it be also shown that by the deed he specifically covenanted that he was lawfully seized. Eor aught that appears, the plaintiff simply agreed to warrant against all lawful claims; and such being the case, the answer is defective because it does not allege an eviction. To make the pleading in question available, it should, in our opinion, have distinctly pointed out the covenants in the deed, and in proper form alleged a breach. The pleader having failed to do this, we think the demurrer was well taken.

Per Curiam,.

The judgment is affirmed with 5 per cent, damages and costs.  