
    James M. Matlock vs. Samuel D. Livingston et al.
    In an action on a promissory note, to which the plea of non assumpsit has been filed, it is competent for either party to show by parol that the note was given for the purchase of a particular tract of land, or for the interest of a particular person in certain land. That which was sold, and for which a note has been given, may always be shown by parol; whilst the interest of the party selling, in land sold, or the interest acquired by the sale in the land sold, are matters which, if necessary, must be established by paper title.
    Where, therefore, in an action on a note brought by M. against D., a witness for the latter stated that he was present at a sale made by M. as administrator of J. M.; that a tract of land on which M. then resided, was sold at auction to D.; and, in answer to a question by D. if it was the land of J. M. that was sold, replied that it was the entire tract then occupied by M. Upon which M. asked the witness, if proclamation was not made by the auctioneer, that the interest of M. in the land.was also to be sold. The court below, on objection of the defendant D., refused to permit the question to be answered; held, that the question was legal and proper, and should have been allowed ; notwithstanding other proof introduced by D. showing that the orders of court under which M. sold, had not been regularly obtained; and that, when the question was answered, if in the afiirmative, the deed to D. might be introduced to rebut and disprove it.
    To an action on a note the defendant plead that “ the note was executed without any consideration, good or valuable inlaw;” the plaintiff replied that the note was executed for a sufficient and valuable consideration ; held, on demurrer to the replication, that the plea of no consideration to an action of assumpsit on a note was a good plea, to which the plaintiff might either reply generally, that there was a consideration, or might reply specially, and set forth the consideration, concluding to the country in either case; and that therefore the demurrer should be overruled.
    The court refused to decide whether a partial failure of consideration of a note given for land, caused by defect in title to part of the land sold could he established at law, when it did not appear in the'case that the question was presented for decision.
    It seems that an omission by the probate court, in effecting the sale of real éstate by an administrator, to direct the notices to persons interested to be posted up in the county, as the law directs, as well as to be published in two newspapers, vitiates a sale of such real estate by the administrator.
    In error from the circuit court of Madison county; Hon. John H. Rollins, judge.
    James M. Matlock sued in assumpsit on a promissory note for $4250, executed by John T. Dearing, S. D. Livingston, John Montgomery, and John Stone, Jr., payable to James Matlock, or bearer, dated January 1st, 1838. Dearing was dead when suit was brought.
    The defendants plead, 1st. Non assumpsit.
    2d. That “the said note in plaintiff’s declaration mentioned, was executed without any consideration, good or valuable in the law,” and a verification; to this plea the plaintiff filed the replication “ that said note in the declaration mentioned, was made and executed for a sufficient and valuable consideration in law,” and concluded to the country.
    A demurrer was filed to the replication, the cause assigned was, that the replication “alleges generally that the note sued on was made for a sufficient and valuable consideration, but sets forth no consideration.”
    The demurrer was sustained, and judgment that plaintiff answer over; no other replication was filed. And the cause was submitted to a jury to try the issue on the plea of non assumpsit. The plaintiff read in evidence the note sued on. The defendants then introduced Robert Montgomery, who proved that he was present when the plaintiff, as administrator of James Matlock, deceased, sold the land of decedent. That the land was sold to John Dearing for twenty-five dollars per acre, on a credit of one, two, three, and four years. The witness was asked by defendants’ counsel if it was the land of deceased Matlock that was sold 1 He answered that it was the entire tract then occupied by the plaintiff. On cross-examination the witness was asked by the plaintiff’s counsel if it was not proclaimed by the auctioneer that the interest of the plaintiff in the land was at the same time sold? This was objected to by defendants’ counsel, who, as the record states, in support of the objection, and to connect the note with the administration sale, and show a failure of consideration, introduced the record of the probate court of Madison county, and proved by the clerk of that court that it contained all that was to be found in his office, in relation to the sale of said land. The record was as follows:
    
      “ The State of Mississippi, Madison County, Probate Courts November Term, 1836.
    
      “ Upon petition of the administrator of the estate of James Matlock, deceased, to sell the real estate of said deceased, and, upon the suggestion of said administrator, that it would be to the advantage of the heirs to sell said real estate, it is ordered that a citation issue, directed to all persons interested in the lands, tenements, and hereditaments of said deceased, (lying and being in the county of Madison, and state of Mississippi,) to be, and personally appear, at the next regular February term of this court, to show cause, if any they can, why said court should not then order arid decree the sale of said land. It is further ordered that this citation be published for six weeks successively, in the Canton Herald and Mississippian.”
    At November term, 1837, of probate court, is an order reciting “ that at February term, 1837, an order was made that the following described lands, belonging to the estate of James Matlock, deceased, should be sold on the 1st day of January, 1838, on a credit of twelve months, to wit, (describing the land in controversy) which order the clerk failed to record on the minutes of said court. It is therefore ordered that the aforesaid order be entered now, as of that term, and that it shall have the same force and effect as if the same had been properly entered at the time it was made.”
    Then follows a petition of James M. Matlock, administrator of James Matlock, deceased, praying a sale of the same lands, and then the order, in these words :
    “ Ordered and decreed, that the land mentioned in the above petition, be sold on the 1st day of January next. February 27th, 1837. Thos. Shaceelfoiid, Probate Judge
    
    The deed from James M. Matlock, as administrator of the estate of James Matlock, deceased, to Dearing, for the same land, was read. It recites the sale as administrator, and concludes with a covenant, in these words, viz.:
    "And I, the said James M. Matlock, do covenant with the said John T. Dearing, his heirs and assigns, that I am duly empowered to convey the same to the said John T. Dearing, as aforesaid; that I have in all things observed the rules and directions of the law in the said sale, and that I will, and my heirs, executors and administrators, shall warrant and forever defend the same to the said John T. Dearing, his heirs and assigns forever, against the claims of all persons. In witness whereof I have hereto set my hand and seal, &c.
    (Signed) James M. Matlock, [seal.]
    
      Administrator of the Estate of James Matlock.”
    
    On these documents being read, the court below held that the plaintiff was estopped from denying that the land sold was the sole and exclusive property of the decedent Matlock, and from setting up and showing title in himself to an undivided moiety thereof at the time of sale; and for this reason, as the record states, sustained the objection to the question propounded by plaintiff to the witness Montgomery; and for the same reason rejected written evidence which the plaintiff offered to give, showing that the plaintiff had not at that time a legal title to an undivided moiety of the land.
    The defendants also gave in evidence copies of the Canton Herald, of dates December 9th, 1836, and January 13, 1837, as follows:
    
      “ State of Mississippi, Madison county. By the probate court of said county. To all persons interested in the lands, tenements, and hereditaments of James Matlock, deceased, greeting. You are hereby cited to appear before the probate court of said county, at a regular term of said court, to be holden at the court-house of said county, on the fourth Monday of February next, then and there to show cause, if any you have, why said court should not then order and decree, that the lands, tenements, and hereditaments of said deceased be sold, as the same would be of advantage to the heirs.
    “ Witness the Hon. Thos. Shackelford, judge of probate of said county. Fourth Monday Nov. 1836.”
    The plaintiff objected to this evidence, on the ground that admitting the note to have been given in consideration of the sale of the land by the administrator; yet, as defendant had given the note to the plaintiff individually, they were precluded from setting up a defence of failure of consideration. The court overruled the objection.
    It was admitted that Dearing went into possession under the administrator’s deed, and that his administrators were yet in possession.
    The plaintiff then offered to prove that all the heirs of James Matlock, deceased, resided, at the time of the application to the probate court, without this state; but the court refused to receive the evidence.
    The plaintiff then gave in evidence a deed of quitclaim from James M. Matlock to Dearing t'o the lands mentioned and recited in the administrator’s deed; the consideration of which was recited in the deed to be five dollars.
    This was all the evidence. The plaintiff then moved the court for the following instructions :
    1st. That James M. Matlock is personally and individually bound by the covenant of warranty in his deed to John T. Dearing, of the 1st of January, 1838. 2d. That if they believe that John T. Dearing went into possession under said deed, the law is, that neither the said John T. Dearing, nor his legal representatives or sureties, can resist the payment of the purchase-money, without a previous eviction, unless there had been fraud in the sale. 3d. There is no evidence in this case tending to establish fraud, or a legal eviction. 4th. If they believe that the note in suit was executed for a consideration, either in part or in the whole, other than the interest of James Matlock, deceased, in the land sold by order of the probate court, they must find for the plaintiff. 5th. That unless the jury believe that the note in suit was given solely and exclusively for the interest of James Matlock, deceased, in the land sold, they must find for the plaintiff. 6th. If they believe that the note in suit was given in consideration of the covenant of warranty in the administrator’s deed, and also in consideration that the administrator would thereafter relinquish any interest which he might have in the premises sold, they should find for the plaintiff. 7th. That if they believe that the heirs of James Matlock, deceased, resided, at the time of the application to the probate court for sale of the land, without the limits of this state, the law is, that it is the province of the probate court only, to determine whether publication has been made according to law, and that the jury are not at liberty to inquire whether such publication has been made. The court refused all these instructions, except the 5th.
    The defendant moved the following instructions : 1st. If they believe the note was given upon a void contract, they ought to find for the defendants. 2d. That in sales by administrators, under order of probate court, if the law is not complied with the sale is void. 3d. In this case, the facts which the evidence conduces to prove, do not show that the law has been complied with. On the contrary, if every fact exists, which the evidence conduces to prove, the law was not complied with, and the sale was void.
    Exceptions were filed by the plaintiff.’ The jury found for the defendant, and the plaintiff sued out this writ of error.
    
      R. W. Hill, for plaintiff in error,
    contended,
    1. That the question put to Montgomery should have been answered. If it were competent for the defendants to prove by parol the sale of the decedent’s land by the plaintiff, as administrator, it was equally competent for the plaintiff to prove by parol what land was really sold.
    2. That the plaintiff was not estopped by his deed as administrator, from showing that he owned a portion of the land sold in his own right, and sold it as his own. If a party would avail himself of an estoppel, and has the opportunity of doing so, he must plead it, or he will be considered as having waived it. 1 Stark. Ev. 295, 296 ; Fairtitle v. Gilbert, 2 Term, 171; Bolling v. The Mayor, 6/c. 3 Rand. 563.
    3. Parol evidence is admissible to show other considerations than those recited in a deed. He cannot deny the consideration expressed, but may show other and auxiliary considerations. 1 Rand. 219; 3 Mason C. C. R. 247.
    4. The doctrine of estoppel does not apply to this case. The deceased was seized per my et per tout with the plaintiff; the deed does not assert that he was solely seized; it was therefore competent to show that the deceased owned but half the land; the plaintiff the other half; that Dearing bought the whole, and executed his notes for their payment; and that the note sued on being payable to Matlock individually, and not as administrator, was given for his individual interest in the land.
    5. That the execution of the note payable to Matlock personally, precluded the defendants from setting up the defence they sought to avail themselves of. Hamer v. Johnston, 5 How. (Mi.) R. 698; Black v. Black, Harper’s (S. C.) R. 412.
    6. When the purchaser of land takes possession under a deed with covenants of warranty, he cannot defend himself against the payment of the purchase-money, without a previous eviction, unless there has been fraud. Brown v. Smith, 4 How. Mi. R. 387; Coleman v. Rowe, lb. 460. Matlock’s warranty was general and absolute in its terms, and no eviction or fraud appears.
    
      W. G. Thompson, on same side,
    contended,
    1. That the replication to the plea of “no consideration ” was good. It denied the allegation of • the plea; the note imported consideration; the plaintiff was not bound to prove one, nor plead one. The defendant could not by mere denial force the plaintiff to prove a consideration.
    2. The court below should have allowed the plaintiff to show his interest in the land, and what land was sold; it was not necessary that the evidence on that point should be spread out in the record. Neal v. Saunderson, 2 S. & M. 572.
    3. The vendee of the land went into possession; his representatives are still in possession; they do not seek to rescind the contract, or complain of the title; they are not parties to this suit. Shall the defendants be allowed to do what the vendee does not seek to do.?
    4. Partial failure of consideration is no defence at law in such a case as this. 2 Wheat. 13 ; 1 Greenl. 356; 2 lb. 390; 3 Pick. 452; lSerg. & R. 438; 5 lb. 201; 7 lb. 43; 15 Mass. 171; Chit, on Bills, 89, and cases cited in note.
    
      D. Mayes, for defendant in error.
    1. Judgment in bar should have been entered on the demurrer. After verdict “ the judges are, in contemplation of law, bound, before in any case they give judgment, to examine the whole record, and then to adjudge either for the plaintiff or defendant, according to the legal rights, as it may on the whole, appear, notwithstanding, or without regard to the issue in law, or fact, that may have been raised and decided between the parties; and this because the pleader may, from misapprehension have passed by a material question of law, without taking issue upon it. Therefore, whenever, upon examination of the whole record, right appears, upon the whole, not to have been done, and judgment appears to have been given for one of the parties, when it should have been given for the other, this will be error in law. And it will be equally error, whether the question be raised on demurrer, or the issue was an issue in fact, or there was no issue.” Step, on Plead. 153, Phila. ed. 1831. In this case, when the judge came to examine the record, he found the special plea not replied to, but an issue of law on the replication. It was, therefore, his duty to enter judgment for the defendant. Had there been a verdict for the plaintiff it would have been error not to have given judgment for the defendant, and this court would have reversed and entered judgment for defendant. Bozman, Executor, v. Brewer, 6 Howard, 349; Bailey and Wade v. Gaskins, lb. 519. This is not a case in which a venire facias de novo is proper, (Steph. 131,) nor a repleader. Ib. 130.
    2. The land sold and conveyed by the deed of Matlock, being the consideration of the note, they cannot prove by parol, that any estate was sold in the land, save that which is shown by the order of court, and the deed, to have been sold. The question is not, can they prove an additional consideration? but, can they add to, or vary the deed or written evidence of the interest sold, which interest constituted the consideration of the notes? This cannot be done. 2 Starkie, 548 ; 3 Phillips, 1428, and numerous authorities there cited.
    3. The sale of the land was void. It was a proceeding under the first section of an act of 1830. Laws Mi. 398.
    The law was not complied with in the following particulars:
    1st. No citation issued.
    2d. No publication was made, as directed by the act. “That which does not appear, does not exist.” 4 Peters, 474; 3 J. J. Mar. 105.
    3d. The record contains no proof of publication, as required by law, but shows that publication did not conform to law.
    4th. The order was made without proof that the interest of the heirs would be promoted.
    5th. The order specifies no time of credit.
    6th. Bond and security was not required of administrator, as directed by the second section of the act. 2 Stuart’s Ala. R. 335.
    7th. No citation being executed, nor publication duly made, the court had no jurisdiction of the parties. Campbell v. Brown and Wife, 6 Howard, 114.
    8th. The record must show the facts which give jurisdiction. Vick, Spc. v. Mayor of Vicksburg, 1 Howard, 439, 440; 3 Ib. 43 ; 2 S. & M. 338 ; 1 S. & M. Ch. R. 561.
    9th. Defect of jurisdiction will be noticed, whenever and however it appears. Vickv. Vicksburg, supra; 6 Wheat. 128; 8 Cranch, 29; 9 Pick. 259; 2 Wils. 382; 1 Burr. 620; 1 Hayw. 414; 2 Peters’s C. C. R. 164; 1 Cook, 194, 268; 1 Willis, 199; 1 Saund. 313; 1 Str. 703; 2 Ib. 102, 996; Stamps v. Newton, 3 How. 34; 11 Wend. 652.
    
      10th. The defendant here may rely on want of jurisdiction, or that the sale was void for any cause. Campbell v. Broion, 6 How. 114; 4 Peters, 474; 11 Wend. 652; 6 How. 234; Gwin v. McCarroll, 1 S. & M. 351.
    4. The sale being void the whole consideration failed, and it is a good defence. . 2 Stu. Ala. R. 335; 8 Mass. R. 48; 7 lb. 14.
    5. In the ordinary cases of sale, with covenants of warranty, and possession delivered, equity cannot relieve on the mere ground of defect of title. The purchaser has obtained, and retains the legal seisin, and the covenant of warranty is in effect but a covenant against eviction, and equity cannot interfere in such case, for the reason, that the questions of title are legal questions, which the chancellor is incompetent to decide, although equity may decide on legal titles, where the question arises collaterally. Abbott v. Allen, 2 Johns. Ch. R. 523, 524. See also 6 Bro. P. C. 575; 1 Madd. Ch. 135; Puckett v. McDonald, 6 How. 273.
    6. Whatever the rule may be in equity it is well settled at law, that the vendor of land cannot recover the purchase-money, if vendee can show outstanding, paramount, title in another, even where the sale was not void, and where there was general warranty and possession. Martin Ads. v. Bobo, 1 Spear’s R. 28, in note; 6 Com. R. N. S. 436; Sproule v. Samuel, 4 Scammon, 138; Sumter v. Welsh, 2 Bay, 558; S. C. 1 Brev. 540; Rice v. Goddard, 14 Pick. 295; Dickinson v. Hall, lb. 220.
    7. Defence at law may be made, where a recovery would give rise to a circuity of action. Frisbee v. Hoffnagle, 11 Johns. R. 50; Cook v. Mix, 6 Con. R. 2d Series, 438; Turman v. Elmere, 2 Nott & McCord, 197; Rice v. Goddard, 14 Pick. R. 295; McAllisters. Reab, 4 Wend. 483 ; Sleinhauer v. Wit-man, 1 Serg. & R. 442 ; Tillotson v. Grapes, 4 New Hamp. R. 444; Knapp v. Lee, 3 Pick. R. 452.
    8. There is, beside the covenant of warranty, a covenant, that the proceedings of the probate court were regular, and authorized the sale. This is broken. Pringle v. Executors of 
      Witten, 1 Bay, 256; Bell v. Huggins, lb. 326; Furman v. Elmore, 2 Nott & McCord, 189.
    9. Even if Dearing bought Matlock’s individual interest, the purchaser, losing so large an interest in the land as the decedent’s half, and acquiring but a tenancy in common, when he contracted for an estate in severalty, might elect to rescind. This defence is such election, and the cases above referred to sustain the position, that the whole contract is void. This was a sufficient reason to reject Montgomery’s evidence, as it would not have varied the legal aspect of the case.
    10. Upon the whole record the judgment is right, and warranted by the pleadings, even if there was error on the trial of the issue. Judicial history does not furnish a case in which a judgment has been reversed where upon the whole record it is the true sentence of the law. Bailey v. Gaskins, 6 How. 519 ; Rev. Code, 150; Gwin v. McCarrol, 1 S. & M. 351, 371; 1 Bouvier Law Die. 548; Bingham on Judgment, 1 ; 2 Tom. Law Diet. 287; 3 Bl. Comm. 396; Step. PL 137.
    11. At law a vendor cannot recover part of the purchase-money, if he cannot make title to the whole estate sold. When title to the whole estate cannot be made, equity only can act. 1 Sugden on Vendors, ch. 7, § 1, p. 345, ch. 7, § 2, p. 360, (edit, of 1843, printed at West Brookfield, Mass.) of old edit. 506. Taking this in connection with the cases, Martin v. Bobo, 1 Spear’s R. 28, in note; 6 Com. N. S. 436; 4 Scammon, 135; Sproidc v. Samuel, 2 Bay, 556; Sumpter v. Welsh, 1 Brevard, 540; 14 Pick. 295; Rice v. Goddard, lb. 220; Dickinson v. Hall.
    
    If these cases, and those of Frisbee v. Hoffnagle, 11 John. R. 50; Cook v. Mix, 6 Con. R. 2d Series. 438 ; Furman v. Elmore, 2 Nott So McCord, 189; Rice v. Goddard, 14 Pick. R. 295; McAllister v. Reab, 4 Wend. 483; Steinhauer v. Witman, 1 Serg. So R. 442; Tillotson v. Grapes, 4 New Hamp. R. 444; Knapp v. Lee, 3 Pick. 452, are closely examined, it will appear manifest that the judgment should be affirmed.
    On the point of the sufficiency of the plea of no consideration, and the insufficiency of the replication, Judge Mayes cited further: Davis v. ~You?ig, 3 Monroe, 331; Coyle's Executor v. Fowler, 3 J. J. Mar. 472; 1 Chit. PL 244 ; 5 Com. Dig. tit. Pleader, C, 78 ; 7 Conn. 92; 1 Chitty, 266; Steph. PI. 378-405; 1 Maulé & Sel. 218; Ib. 441; 3 Ib. 114; 11 Price, 235; Myers v. Morse, 15 John. R. 426; 1 Saund. PI. & Ev. 161; 1 Step. N. P. 389; Head v. Baldy, 6 A. & E. 459 ; 13 Petersdorf, 274; 1 Tidd’s Pr. 643; Lawes on PI. 540, 541; Bank of Auburn v. Weed, 19 John. R. 302; 1 Chit. PL 497; 1 Tidd’s Pr. 599, 600; Wheeler v. Curtis, 11 Wend. 656; Step. PL 418; Harrison v. Wilson, 2 Marsh. 550; Step. PL 422; Warner v. Warrisford, Hob. 127; Com. Dig. Pleader, E. 13; Step. PL 140 ; 27 Eliz. ch. 5 ; 4 Anne, ch. 16 ; Surloit v. Beddon, 3 Monr. 109; 1 Dig. Stat. Ky. 264; McDowell v. Greenup's Rep. 2 Marsh. 568 ; Isaac v. Porter, lb. 442; McCurdy v. Dudley, 1 Marsh. 288; Steph. PL 145; Allen v. Crofort, 7 Cow. R. 47; Comley v. Lockwood, 15 Johns. R. 191; Mansel on Dem. 25; 2 Tom. Law Die. tit. Negative Pregnant; Cro. Jac. 559, 560.
    
      William Thompson, for plaintiff in error.
    1st. If the position of the counsel for defendant be right, that the plea that there was no good and valuable consideration is a good plea, then the verdict and judgment cannot stand, for the reason that the replication of the plaintiff that there was a sufficient and valuable consideration was a good answer to the plea. See jBurditt v. Ralston, 1 Marshall, 332; Rudd v. Hanna, 4 T. B. Munroe, 531.
    2. If the plea be a negative pregnant, 'the same result should follow as above, for notwithstanding the ability and learning shown by counsel, he succeeds in satisfying us that at worst his plea under the view of the court would only be an immaterial one, and not to be inquired into except on special demurrer, and on his demurrer to plaintiff’s replication, the court could not look back to the plea, still the replication, waiving the objections to the plea in point of form, tenders a good answer or proper traverse to it as a good plea, and the defendants’ demurrer remaining in the record to the replication that there was a sufficient and valuable consideration for the note, the defendant can never afterwards deny it in the progress of the trial, and there is error in the judgment below, whether the court meant to sustain the defendants' demurrer to replication, or to run it back to the plea, (it is not clear which was intended) for the demurrer in any view we take of the intention, still acknowledges the truth of the fact replied.
    3. The vendee was put in possession, and continued in the enjoyment of the property, his representatives were in possession at the time of the trial, and he had the personal covenant of warranty of the plaintiff, so there was not a total failure of consideration, even if partial, which is not conceded. And on a note nothing but a total failure can be made the ground of defence as regards the question, of consideration. See Millar v. Campbell, 3 J. J. Marshall, 526; 21 Wend. 134; 26 Wend. 116; 1 Bibb, 500; 1 Littell, 178; 4 How. 453; 2 Wheat. 13. Where plaintiff sues on a note, partial failure of consideration cannot be given in evidence on the general issue. See 11 J. R. 547; 15 J. R. 230; Brewer v. Harris, 2 S. & M. 88, 89 In this case there was no pretence of fraud.
    4. This defence cannot be set up by the sureties while vendee and his heirs never complained, and the heirs now in possession.
    5. Before the defence could be made under pleading of any kind, the property should be returned.
    6. If it be said the plaintiff below made no objection to the evidence below on the ground it was not admissible, we reply that it was a case of no issue; though all the evidence is in the record and would justify a verdict and judgment, yet this court stand without an issue ; but at least by-not objecting the plaintiff did not yield his record evidence given by the demurrer.
    7. The covenant of warranty may be, and in this case was, a part of the consideration of the notes. Suppose vendee says I will give five dollars per acre and risk the title, or I will give ten dollars per acre if you will warrant the title, does not the warranty make half the consideration ?
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This action was founded on a promissory note made by John T. Dearing, who has since died, and the defendants in error. The note seems to have been given for a tract of land purchased by Dearing at a sale made by the plaintiff in error, as administrator of James Matlock, deceased. The defendants pleaded non assumpsit, and a special plea “ that the said note was executed without any consideration good or valuable in law.” The plaintiff replied that the note was made for a sufficient and valuable consideration in law. The defendants demurred to the replication, and the court sustained the demurrer, and gave judgment of respondeat ouster, but the plaintiff failed to reply further, and the defendants had a verdict on the general issue.

After the note had been read to the jury, the defendants introduced a witness to prove the consideration, who stated that he was present at a sale made by the plaintiff as administrator of James Matlock, deceased;. a tract of land on which the plaintiff then resided was sold at auction to Dearing. He was then asked by defendants’ counsel if it was the land of the decedent Matlock that was sold, to which he replied, it was the entire tract then occupied by the plaintiff. The witness was then asked by the plaintiff’s counsel if proclamation was not made by the auctioneer that the interest of the plaintiff in the land was also to be sold. This question was objected to by defendants’ counsel, and to sustain the objection, and also for the purpose of showing a failure of consideration, he introduced certain records of the probate court, preliminary to the order of sale, which are defective in this; when the application was made to sell the land, the court directed that notice to persons interested should be published in two newspapers, but omitted to direct that notices should be also posted up as the law directs. The plaintiff’s deed to Dearing was also read.

The principal question seems to be as to the propriety of refusing to permit the witness to answer the question asked by plaintiff’s counsel. Under the state of case before the court, it does seem that there cannot be a doubt but what the court erred in excluding the answer. The objection seems to be that it was proving an individual interest in the administrator by parol. It was an effort to make the same kind of proof which the defendants had made. They had proved by the witness that a tract of land was sold, and more than this, that it was the land of the deceased Matlock. After this description of parol proof had been admitted, it was surely competent for the plaintiff to rebut it in the same way. If it was competent for the defendants to prove the consideration of the note by parol, it was equally as competent for the plaintiff to prove that in truth it was given for a different consideration. It was not an attempt to prove title by parol, but to prove what was attempted to be sold. It is always competent to prove by parol what the consideration was, but the validity or sufficiency of the consideration, or in other words the interest of the vendor must be established, if necessary, by paper title. What the vendor professed to sell is one thing, but what interest he had in the thing sold, is quite a different matter. There is a difference between what a party has done, and what he had a right to do. The effort was to prove what had been done; the tendency of the defendants’ record proof was to show that Matlock had no right to do the thing. If the plaintiff had introduced his title papers, they would not have proved that the note was given for. his interest in the land; and if there was no written evidence of that fact, he could prove it only by parol. The witness should have been permitted to answer the question, and to rebut the effect of an affirmative answer, the records could have been introduced by the other party to show that Matlock had no interest, and that he actually sold and conveyed as administrator only. Or this record proof would have come in very properly as rebutting evidence, to prove that his individual interest was not sold, and in either event, to show that there was no consideration.

It is, however, insisted that, even if the court erred in excluding the testimony, the defendants are still entitled to judgment. That the whole record must be inspected, and such judgment rendered as it will justify; that as the demurrer to the plaintiff’s replication was sustained, and he refused further to reply, the plea remained unanswered, and being a good bar to the action, judgment should be rendered for the defendant. This argument necessarily assumes that the demurrer was correctly sustained,, which is denied on the other side. This is an important point, because the rule of law is as stated, if the record will justify its application. On a former argument of this cause we thought the plea of no consideration was defective as amounting to the general issue. Subsequent investigation has resulted in a different conclusion. Under the general rule that a party may plead specially any matter which goes to defeat the action, this plea has been allowed. It puts in issue the consideration, where the promise is express, which the plaintiff is not bound to prove, as the writing imports a consideration. There is a class of cases, however, in which this plea is not allowed in England, but that is owing to the change which has been effected by the new rules of court; such, for instance, as actions against acceptors and indorsers ; and if it be pleaded in such actions the plaintiff may demur, or, he may take issue. As it is only by virtue of these rules that such a plea is bad, whatever is a good replication to it since the rules, must of course have been good before. On examining this question, we find that to such a plea the plaintiff may reply generally that there was a consideration, or he may reply specially and set out the consideration, and in either case conclude to the country. See Chitty Pl. 8 Amer. Ed. from 6 London Ed. 516, 517, (notes g and i,); Mills v. Addy, 6 Car. & Payne, 728; Easton v. Pratchitt, Ibid. 736. The general form of replication was adopted in this instance, in which the plaintiff avers that the note was executed for a sufficient and valuable consideration, and concludes to the country. This replication was sufficient, and the demurrer to it should have been overruled; an additional reason is therefore presented for reversing the judgment.

We have been pressed to give a decision on the main point in this case, on which it is said it must ultimately turn, to wit; whether, if part of the consideration of the note was James M. Matlock’s interest in the land, and there was therefore only a partial failure of consideration, the defence can be made at law, or must the defendants resort to a court of chancery. A decision on this point is not called for, and it would be premature to make it. But it would be also hypothetical. The 'defendants would not permit Matlock to introduce evidence that he had any interest in the land, or that he proposed to sell his interest. There is no proof in the record of any such fact. We should therefore have to assume that he sold such an interest before we could decide the question propounded. As the case is presented by the record, no other consideration appears, except that which passed by the administrator’s sale of the land. The proceedings of the probate court present the same defect which has been decided over and over again to be fatal to the validity of the sale, even in a court of law, and whether there was any other consideration remains to be determined on another trial.

Judgment reversed and cause remanded.  