
    Cox and Another v. Wells.
    
      Tuesday, June 3.
    In this suit, which was on a promissory note, a plea similar to the special plea in the preceding case of Cox et al. v. Hazard, was held to be bad.
    A conveyance of real estate executed and acknowledged by' husband and wife, hut in the body of which the wife’s name is not inserted, does not convey the interest of the wife in the premises.
    ERROR to the Rush Circuit Court.
   Blackford, J.

— Assumpsit brought by Wells, as assignee of one James Conwell, against Cox and Morrow on a promissory note. The note was dated on the 1st of December, 1836, and was payable to Conwell or order three years after date.

Pleas, I. Non assumpsit. 2. That the note was given in part consideration of lots numbered 19 and 20 in the town of Laurel; that upon the execution of the note, the payee gave to the defendants his title-bond, the condition of which (after reciting that he had received one-third of the purchase-money, and the defendants’, note for the residue payable in three years) was, that he would execute to the defendants a deed for said lots with relinquishment of dower, upon payment of the residue of the purchase-money; that the note sued on was for said residue of the purchase-money; and that the payee did not on the 1st of December, 1839, or at any time previously, make or offer to make to the defendants a deed for said lots, nor at any time afterwards until the 18th of September, 1840; wherefore the consideration of the note had failed.

Replication to the special plea, that on the 15th of September,.1840, the plaintiff tendered to the defendants a deed for 'said” lots with relinquishment of dower, executed by said -James Comoell and his wife, which tender was prior to the -commencement of this suit; wherefore the consideration of the note had not failed.

The defendants craved and obtained oyer of the deed mentioned in the replication, the substance of which deed is as follows: This indenture witnesseth that the parties to this agreement having considered, &c., do mutually agree as follows, viz., James Conwell, the party of the first part, agrees, &c.; and we Robert S.-Cox and - Charles W. Morrow, the party of the second part, &c., have purchased of the said party of the first part lots numbered 19 and 20 in the town of Laurel, and have paid to the party of the first part the sum of, &c. The party of the first part hath granted, bargained, and sold, and by these presents doth grant, bargain, and sell to the said party of the second part, and to their heirs and assigns, the above described premises, &c. The party of the first part binds himself, &c., to the said party of the second part, &c., to defend said lots against the claims of all persons, &c. In. testimony whereof, the said James Conwell and Wineford Conwell his wife, have hereunto set their hands and seals this 5th of September, 1840. — James Con-well, (seal.) Wineford Conwell, (seal.)

There is a certificate of a justice of the peace in the usual form indorsed on the deed, stating the acknowledgment of the deed by the said Conwell and wife, the wife being examined separately, &c.

Oyer as aforesaid of the deed having been obtained by the defendants, they demurred generally to the replication; but the demurrer was overruled.

The cause was submitted to the Court on the general issue, and judgment rendered for the plaintiff.

On the trial, the plaintiff proved the execution of the note and of Conwell's title-bond. He also proved that on the 15th of September, 1840, he tendered to the defendants a deed for the lots aforesaid, the substance of which deed we have already stated, oyer of it having been given to the defendants. The deed was objected to by the defendants, but the objec-. tion was overruled.

The replication to the special plea is bad, because, shall presently show, the deed alleged to have been ten is insufficient. The special plea is also bad. Cox et Hazard, decided at this term. The deed offered in evid' by the plaintiff, and shown on oyer, does not convey the terest of Conwell’s wife in the premises; her name not being inserted in the body of the deed. Catlin v. Ware, 9 Mass. 209.—Lufkin v. Curtis, 13 Mass. 223. The conveyance tendered, therefore, was not such a one as the defendants were entitled to, under their contract with Conwell.

J. S. Newman, for the plaintiffs.

G. H. Dunn, P. L. Spooner, and P. A. Hackleman, for the defendant.

Per Curiam.

— The judgment is reversed with costs. Cause remanded, &c.  