
    John Johnston vs. Marcus F. Beard.
    A declaration by a vendee who has received from his vendor a bond to make 'title on payment of the purchase-money, against the obligor therein for a failure to make title, is fatally defective which neither avers that “ the vendee, demanded a deed of the vendor,” nor that “ the vendee prepared a deed and tendered it to the vendor and demanded its execution.”
    Whether the vendee, who has a bond for title on payment of the purchase-money, can maintain an action against his vendor for a failure to make title, after having demanded a deed of the vendor, or whether he must have prepared a deed and tendered it to the vendor and demanded its execution; Qumre ?
    
    If a plea be defective in form, yet appropriate to the action and going to its substance, it is error to strike it out or reject it; it must be disposed of by demurrer.
    It seems, where a demurrer to a declaration is overruled and the defendant offers a good plea in bar of the action, with an affidavit of its truth attached to it, such affidavit will be equivalent to an affidavit of merits, and the plea ought to be received.
    In error from the circuit court of Clark county; Hon. Henry Mounger, judge.
    Marcus F. Beard sued John Johnston, Sen. in an action of debt on a penal bond, the condition of which was as follows, viz.:
    “That the said Marcus F. Beard had purchased of the said John Johnston, Sen. a certain tract or parcel of land, lying and being in the county of Newton, and state of Mississippi, known as section” No. 32 & 33 in T. C. R. 13 E. containing 1280 acres, more or less, “and made his notes unto the said John Johnston, Sen. in payment for the same. It was conditioned that if upon the payment of said notes by said plaintiff or his legal representatives, the said defendant shall make or cause to be made unto the said plaintiff or his legal representatives, good and sufficient titles, free from all incumbrances, and also until the said titles are made, guarantee unto the said plaintiff or his legal repre~ sentatives, the peaceable possession and full enjoyment of said parcel of land and all that thereunto appertains, without any suit or hindrance in any manner of the said defendant, or any person or persons whatsoever, then that obligation to be void, otherwise to remain in force and virtue.”
    The declaration, after setting forth this condition, continued as follows, viz.:
    “Although the said plaintiff hath well and truly paid and satisfied said notes so given unto the said defendant in payment of the said tract or parcel of land in said condition mentioned, to wit, on the day and year aforesaid, in the county aforesaid; yet the said defendant did not, upon the payment of said notes by said plaintiff as aforesaid, make or cause to be made unto the said plaintiff or his legal representatives, good and sufficient titles, free from all incumbrances, to the tract or parcel of land in said condition mentioned, but the said defendant hath hitherto wholly-neglected and refused, and still neglects and refuses so to do, by reason of which said breach the said writing obligatory became forfeited, and an action hath accrued to the said plaintiff to demand and have of and from the said defendant the said sum, above demanded.” The conclusion was in the ordinary form.
    The defendant appeared, and without craving oyer of the writing obligatory, demurred, and assigned the following causes of demurrer: 1. “There is no amount of the consideration alleged in said declaration for which said supposed bond was executed, nor is it averred at what time said notes of said plaintiff became due and payable, or when, or in what manner, they were paid to said defendant. 2. Because it is not alleged in the declaration that plaintiff ever demanded of the defendant a transfer by sufficient means of the land in said supposed writing obligatory mentioned, or any part thereof. 3. Because there is no allegation in the declaration that the plaintiff tendered to the defendant a deed to the lands in the declaration mentioned, and demanded of him its execution to the plaintiff.
    Upon argument the court below overruled the demurrer to the declaration; when the defendant moved the court for leave to file aplea, which is in substanceas follows : That on the 13thofMay, 1842, the defendant and his wife did “ grant, bargain, sell and convey unto the said plaintiff the following described lots or parcels of land, to wit: section 36, the south half of section 25, in township 6, range 12 east; the west half of section 31 in township 6, range 13 east, and the north-east quarter of section 1, in township 5, range 12 east, except the west half of the northwest quarter of section 31, township six, range 13 east; all in the county of Newton and in the Augusta land district, of the state of Mississippi, containing 1565^%% acres, more or less, and the said defendant and his wife as aforesaid, thereupon on the day and year aforesaid, in the county of Jasper, to wit, in the county aforesaid signed, sealed and delivered to the said plaintiff a deed conveying the land aforesaid, together with all and singular the rights, privileges and appurtenances thereof to the said plaintiff, his heirs and assigns forever, which said deed, so executed, and containing a covenant on the part of said defendant and his said wife, to and with the said plaintiff, his heirs and assigns, to warrant and forever defend the lots of land and premises aforesaid and every part thereof unto the said plaintiff, his heirs and assigns forever, against the lawful demands of all and every person or persons whatsoever, the said plaintiff ou the day and year aforesaid, to wit, in the county aforesaid, did agree to accept, take and receive, and the same then and thei’e accepted, took and received from the said defendant in full payment and satisfaction of the bond or writing obligatory in the plaintiff’s declaration mentioned, and so the defendant says he has fully paid off, satisfied and discharged the said bond or writing obligatory in the plaintiff’s declaration mentioned, and this he is ready to verify, wherefore he prays judgment, &c.” This plea’ was accompanied with an affidavit made in open court that the plea was true in substance and in fact.
    To the filing of this plea the plaintiff objected on the ground that “it was not a good plea,” and was no defence to the action. The court would not permit the plea to be filed “ but ruled it out,” to which opinion the defendant excepted, and prosecuted this writ of error.
    
      No brief was filed by the counsel for the plaintiff in error.
    
      George Calhoun, for defendant in error,
    contended,
    1. That the defendant, by applying for leave to plead, abandoned his demurrer and his right to insist on it in this court.
    2. That the demurrer was properly overruled. Evans on PL 28; 2 Black. Comm. 340.
    3. The plea of accord and satisfaction was bad. Hurlstone on Bonds (Law Lib.) 128 ; Preston v. Christmas, 2 Wils. 86; Selwyn’sN. P. 455; Oro. Eliz. 46; Cro. Jac. 254; 1 Com. Dig. 198, and authorities there cited ; Me Waters v. Draper, 5 Monroe, 497; Selw. N. P. 431; Blake's case, • 6 Rep 43 ; Hurlstone on Bonds, 72, and authorities cited; 1 Esp. NisiPr. 262, title Debt; 1 Com. Dig. 202; Selwyn’s N. P. 455; 1 Saund. PI. & Ev. 33, 34; Hawkshaw v. Rawlings, 1 Stra. 23 ; Paine v. Masters, lb. 573.
    4. The plea was properly rejected, because it was unaccompanied with a proper affidavit. Rev. Code, 119, 120 ; the oath to the plea is not a compliance with the statute.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of debt upon a bond for title, binding the obligor to make title, upon payment of the purchase-money. A demurrer was filed to the declaration. The second cause assigned is, that the plaintiff never demanded a deed of the defendant; — the third, that the plaintiff has not alleged that he ever prepared a deed and tendered to the defendant and demanded its execution.” The court below overruled the demurrer. In this we think there was error.

In New York, the rule is that where a party covenants to convey, he is not in default until the party who is to receive the conveyance, being entitled thereto, has demanded it, and having waited a reasonable time to have it drawn and executed, has made a second demand.” Connelly v. Pierce, 7 Wen. 130. In England the party entitled to the deed is bound to have it prepared, and presented for execution. The purchaser is to be at the expense of the conveyance. We need not now determine which of these is the correct rule, since one or the other undoubtedly is. If either be adopted this declaration is bad.

After the demurrer was overruled, the defendant offered a plea of accord and satisfaction, with an affidavit of its truth, which was intended as an affidavit of merits. This plea the court upon motion rejected. In this we think also there was error. If the plea were defective in form, though we perceive no such objection, if it were.appropriate to the action and went to its substance, it was error to strike it out or reject it. Smith v. Bank of Rodney, 6 S. & M. 83.

The judgment is reversed and cause remanded.  