
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1807.
    Tucker v. Gordon.
    Inconsistent counts cannot be joined in the same declaration as trespass on the case, and indebitatus assumpsit.
    This was an action tried in Laurens district, before Wilds, I. The first count in the declaration was a special count in trespass on the case, stating that the defendant had sold the plaintiff a tract of 300 acres of land for £100, and that he knew at the time he sold the same, that it belonged to one Samuel Bell, and that he promised to warrant and defend the same land to the plaintiff; and that the plaintiff confiding in the promises of the defendant, took possession of the said land, and laid out and expended a large sum of money in improving the same; and that afterwards the said Samuel Bell brough, his action against the plaintiff, and recovered the said land and damages, and that the plaintiff thereby suffered damage to six hundred dollars. The declaration contained two other counts, for money laid out and expended, and money had and received. The defendant’s plea was non assumpsit. To support the action the following evidence was adduced. 1. A letter from defendant to the sheriff, stating that Judge Grimke had requested him (the sheriff, Mr. Tennant,) to sell the land in question, belonging to the estate of one Oliphant, under an execution at his suit, and to contract with some person to purchase the same at sheriff’s sale, at a certain price, previously to the sale, to be paid down at the sale, or auction, to be made publicly by the sheriff, or secured by bond. 2. Another letter from defendant to plaintiff, enclosing a letter to the sheriff, stating that the said letter to the sheriff communicated the bargain agreed on between the plaintiff and defendant, and recommending to the plaintiff to attend the sale of the land. 3. Mr. Tennant, the sheriff, who sold the land under execution, deposed, that he made the sale at the instance of the plaintiff, and Judge Grimke. He understood the plaintiff and defendant had made some agreement about the land prior to the sale. The land was sold at sheriff’s sale for JE100, which was paid by plaintiff. 4. James Saxon deposed, that he was present at the sale. That after the land was knocked off at the auction to the plaintiff he demanded a title with a warranty, which the sheriff refused to give; whereupon, plaintiff expressed some doubts about his obtaining possession, and the defendant then said that he would put him in possession. 5. It appeared that defendant was notified of the suit against the plaintiff, by Bell. 6. The record of the recovery by Bell was adduced in evidence. 7. It appeared that the defendant was one of the administrators of Oliphant. 8. That the plain, tiff had erected a saw mill on the land, worth $300. 9. That his grist mill, on another tract, would be rendered useless by the loss of this land. The defendant proved, that before the plaintiff made the purchase he had notice of Bell’s claim, and was told that Bell intended to sue for the land, .
    The jury found a verdict for the plaintiff, contrary to the charge of the presiding judge.
    The motion was made in this court to arrest the judgment. 1. On the ground, that the special count could not be joined with the general counts in the declaration. 2. That the cause of action stated in the special count is not maintainable unless founded on a deed. The motion was also to set aside the verdict, and for leave to enter up a nonsuit, a nonsuit having been moved for in the District Court, which motion was overruled. 1. That fraud being the gist of the action, and no fraud having been proved, the action was not supported. 2. That the plaintiff having laid an express war. ranty, was bound to prove it; and having failed to do so, he ought to ^ave been nonsuited. 3. That no implied warranty could bé raised in such a case, as the defendant was not in possession of the land when it was sold. 4. That the plaintiff had never been lawfully evicted. 5. That the land was not sold by the defendant, or offered to be disposed of, in his own right, and that he never received any consideration for contracting to sell it, but was a mere agent for the estate of Oliphant, and for the creditors of that estate.
    Bowie, for the defendant,
    in support of the motion, cited 1 D. and E, 274. Trover and assumpsit cannot be joined. The defendant appears to have acted candidly, and with good faith. The contrary did not appear from any thing that came out on the trial. He may have been mistaken as to the validity or extent of Oli-phant’s title, but there is no ground to believe he did not conduct himself conscientiously in the transaction. At all events, the plaintiff has no right to recover, as it does not appear that he has been lawfully evicted, and has given due notice thereof. He is still in possession.
    
      Nott, on the contrary, for the plaintiff.
    Gordon being interested, as acftfeiijjtjator, is liable in this action. The evidence adduced, authorized the jury to presume fraud. The counts consistent. EM§dic|t^nMcessary to be proved.
   25th April», 1807.

Brevard, J.,

delivered the unanimous .iopi¿idcfo|l all'the judges. The first count in the declaration is evidently a count in trespass on the case, founded on tort, and not on cofifract. The general issue on this count would be on the plea of not guilty. The other counts are general counts in indebitatus as-sumpsit. These counts are inconsistent, and might have been demurred to. A verdict has been found upon all the counts for the plaintiff. I am of opinion that the plaintiff is not entitled to judgment on this record, because of this inconsistency in the declaration ; and that the motion in arrest of judgment ought to prevail. But as the defendant’s counsel has expressed a wishj that the decision may be made on the other grounds taken by him, rather than on this, if they should be found valid, the court has taken them into consideration, and we are all of opinion, that to have supported the action on the first count, it was necessary that the allegations therein contained, material to the maintenance of the case, should have been substantially proved. The wrong complained of is the fraud and deception practised by the defendant, in selling land td which he had no title. But no evidence was given to substantiate 0 this charge ; and if fraud were legally presumable, yet there was no evidence given upon which a presumption of fraud could be fairly raised.

There was no proof of any sale by the defendant, as alleged. The declaration does not state that the defendant persuaded and induced the plaintiff to purchase at sheriff’s sale, and falsely and deceitfully suggested, or insinuated, that Oliphant’s title was sufficient ; or that he prevailed upon the plaintiff, deceitfully, to make this contract to prejudice him, or to advantage himself. But if the declaration had been thus drawn; still no evidence was given to sup. port these allegations.

How could Bell’s recovery affect the defendant, who did not sell or convey ihe land 1 And it appears that the plaintiff was not ignorant of Bell’s claim when he purchased, and it is not improbable that he intended to buy on speculation, and run the risk of there being a better title in Bell.

We are all of opinion the Verdict in this case should be set aside, and that the defendant should have leave to enter up a judgment of nonsuit.  