
    Whitesides vs. Caldwell.
    To an action on a covenant, by wliich plaintiff in error bound himself to pay for certain land conveyed to him, so soon as it could be ascertained whether the same could be held under and by virtue of the vendor’s conveyance, lie pleaded
    1, That lie did not hold said land mentioned in said deed, under said deed of conveyance,
    
      % Thafhe did not on the — day of — , nor at any time before or since, ascertain thaf said deed of conveyance mentioned in the covenant, held the land.
    That vender was entitled to but one fourth of ths land oonveyed, and that there were three other persous who were entitled to, and do actually hold said land by virtue of their right as co-heirs with vendor, or have disposed of the three fourths to their own nse, in esclusioo of the plaintiff in error claiming under the deed aforesaid
    4. That there was no assignment of the covenant to¿he plaintiff,
    To these pleas a demurrer was filed, Held, that the first and second pleas vv ere bad} but the third and fourth were substantially good.
    The covenant upon which this suit was founded, was as- follows: “Whereas, I, Jonathan Whitesides, have this day received from John • Caldwell a deed of conveyance for four hundred acres of land in the Illinois Territory, which he was entitled to as the heir at law of his brother Robert Caldwell, wbo was entitled to the same in consequence of his having improved it previous to the year 1791. Now, should I hold said land, under said conveyance, I am to pay said Caldwell the sum of two hundred dollars, to be paid so soon as it can be ascertained whether the said claim will hold the said land. Witness my hand and seal this 20th June, 1814.”
    The'declaration, after stating an assignment of the covenant to the defendant in error, averred that the defendant, under said claim, did hold said land, and that the defendant did ascertain tbat the claim held said land on the-day of-, and the breach assigned was, that he did not pay the two hundred dollars so soon as he ascertained that the said claim held said land, or at any other time.
    The defendant pleaded: first; that he did not hold said Jand mentioned in said covenant under said deed of cpnveyance, and put himself upon the country. Second; that he did not on the-day of- 18 —, nor at any time before or since, ascertain that said deed of conveyance mentioned in the covenant declared on, held the said land, and put himself upon the country. Third; that John Caldwell was entitled to but one fourth part of the said four hundred acres of land, as heir at law of Robert Caldwell or otherwise, and that there were three other persons, joint heirs of the said Robert with the said John Caldwell, who were entitled to and do actually by virtue of their right as aforesaid, hold or have disposed of for their own use and benefit, three hundred acres, of said four hundred acres of land, in exclusion of the defendant, claiming under the deed aforesaid. This plea concludes with a verification and commences in bar of the action. Fourth; that said John Caldwell did not assign over and transfer the covenant declared on to the plaintiff, and put himself upon the country. And fifth, that he had kept and performed the covenant, upon which issue was taken.
    To the four pleas first stated, there was a demurrer, which purporting to give special reasons or causes of demurrer, assigns the following : First; that th,e pleas do not answer the cause of action. Second; that there are blanks and wrong conclusions. The circuit court sustained the demurrer, to the four pleas demurred to.
    
      Cullom, for plaintiff in error.
    
      Jl. J. JWarchbank.s, for defendant.
   Reese, J.

delivered the opinion of the court.

The first plea, that defendant did not hold the land under the deed of conveyance, is clearly bad. Did he hold it at all? How was it held, and by whom was it held? See Nixon vs. Bumpass, 5 Yer. R. 16. The second plea, that he did not on the — day of 18 —, or at any time before or since, ascertain that the deed of conveyance held the land, is also clearly bad, not because there is a blank as to the date, because that blank existed in the averment of the declaration, but because he should have averred affirmatively, what he did ascertain, to wit: that the deed did not and could not hold or con-' vey a good title to the land, and why? See same authority. The third plea, that John Caldwell was entitled to but one fourth of the said four hundred acres of land, as heir at law of Robert Caldwell, or otherwise, and that there were thréé other persons joint heirs of the said Robert with the said John Caldwell, who were entitled to, and do actually, by virtue of their right as aforesaid, hold, or have disposed of for their own use and benefit, three hundred acres of said four hundred acres of land, in exclusion of the defendant claiming under said deed — we think substantially good. The objection in argument here is, that the plea proposes to bar the whole action by matters that answer only a part of the declaration. We think this objection not well taken. The defendant was not bound to accept of one-fourth of the consideration for which his covenant to pay was executed, when excluded from the enjoyment of three-fourths of that -consideration. If in fact, he did enter upon, hold and enjoy by title, derived from plaintiff, one-fourth part cf the consideration, or land, if the plaintiff can avail himself of that circumstance in this action, he can file his replication to the plea.

The conclusion of this plea, which is a verification, i§ right. The fourth plea of non-assignment, which traverses an express averment of the declaration, properly concludes to the country. Tlie plea itself has been too long considered and received as proper, and is too well established in the practice of the profession and of our courts, to be now questioned, otherwise it might well be urged that without any special plea from the defendant, the assignment ought to beTproved, as well as averred by the plaintiff as a necessary ground, to show his right or title to institute and maintain the action in his own name. The result is, in our opinion, that the demurrer ought to have been overruled as to the third and fourth pleas. It is said, however, that at the instance of the defendant’s counsel, leave was granted to amend the pleading, and that the award of are-pleader at the instance of the defendant, is a waiver of the error, if any, in the judgment of the court upon the demurrer.

To this proposition, we cannot assent. No re-pleading in fact took place, and the question stands upon the original pleadings and the action of the court thereon. Again, it is said that justice has been done on the merits, and that in such case there is a statutory provision that leaves the case ?s set-tied by the jury. We do not know, that justice has been done. We know, that the defence set up in the third and fourth picas, could not have been made on the issue of covenant performed before the jury.

Let the judgment be reversed, and the cause rema'nded to the circuit court'of Overton county, from whence it came, for a new trial.

Judgment reversed;  