
    Stewart v. Insall.
    
      Quere? Whether an instrument made by a married woman, and intended for a last will and testament, although bad as a will, could have the effect to repudíate a previous contract . inconsistent therewith made during minority.
    The court will not enforce the payment of a promissory note given in consideration of the sale of land, where the sale has been made by virtue of a power of attorney which had been iw-'tod by the death of the principal.
    Where land is sold by attorney, and part, of the purchase-money paid and notes given for the bala nee. nayable to the attorney himself, in a suit by the payee of the notes, the vendee may plead fraud and failure of title in recoilvention, and recover back the purchase-money paid.
    Where there is fraud or misrepresentation as to title in the sale of land, the vendee is not obliged to wait until evicted or disturbed by paramount title, although the deed contain a general warranty. (Note 63.)
    Appeal from Colorado. Suit by the appellee against the appellant on a promissory note for $120. The note was made payable to the plaintiff or bearer. Answer by the defendant that the note was given by the defendant to the plainfiir, in part payment of the purchase-money for laud sold to the defendant by the plaintiff, representing himself to be the attorney in fact of O. K. Whin; that the plaintiff falsely and fraudulently represented to the defendant that the land belonged to Winn, and that lie, the defendant, had good authority to convey, whereas the fact was that the land belonged to the heirs of one Sarah Ivelsejr, from whom and her husband, Winn, purchased during her minority, and who had by Iierlast will and testament repudiated said sale by devising the laud to her husband; and that the Probate Court bad canceled the will, and decreed the land to belong to the sister and heir of the said Sarah Kelsey ; and t hat, at the time of the sale to defendant, Winn, the pretended constituent was dead, and the said plaintiff’s power of attorney thereby revoked; that the price of the land was four hundred dollars, two hundred and eighty of which had been paid by the defendant, for which amount
    the defendant prayed judgment against the plaintiff in reconvoution, aud further, that the plaintiff being a resident of Xiouisiana, as appeared from his petition, aud having no other property in this State, the same be decreed to be a charge against the land, &e. The deeds aud power of attorney were all made exhibits. The deed from Winn by his attorney, Insall, to Slewart was a bargain and sale, with covenant of general warranty. There was also a general deuigl. The plaintiff excepted to the special pleas of the defendant on. the ground that ■they contained no averment of eviction or disturbance; that the deed contained a general warranty, but no covenant of seizin; that the plea of infancy of a previous grantor was a matter of privilege, and could not be claimed without ■offering to restore the consideration paid, &c.
    The court sustained the exceptions. The case was then submitted to the court without a jury, on the issue raised hy the general denial. Judgment for the amount of the note and interest, aud costs.
    
      B. J. Rivers, for appellant.
    The defendant in the court below, pleaded failure of consideration, because the power of attorney, under which Insall acted, was, at the time of the sale of the laud, revoked by the death of Winn. This plea was excepted to, and the exception sustained. On tills ground I confidently rely for a reversal, and do not deem it necessary to refer to a single authority.
    J. II. Robson, for
    appellee.
    There was no error in the court below in sustaining plaintiff’s exception to defendant’s pleas, and in overruling all his pleas, except the general denial, for the following reasons:
    
      1st. Beca~ise it is nowhere alleged in the original or amended answers of defendant that ho was evicted from the premises by one having paramount title, or that lie was even disturbed in the possession or enjoyment thereof. (Dallam Dig., 024; 0 J. J. Marsh. 11., 182; 4 Id., 187, 188; 0 Mon. 11., 200.)
    2~i~ `The `coiiveyanee of the laud for which `the liote was gi~'en was not the only consideration of the note. The covenant of warranty in the deed formed the principal consideration. (5 Litt. Sd. Cas., 24S, 249.)
    3d. There WflS no covenant of sehzhi iii the deed; and consequently thera was no breach of warranty till eviction. See distinction between covenant of warranty and covenant of seizin. (4 Kent, 470, 471, 472; 2 Blaokstone, 245.)
    4th. So far as the plea of iufaiicy is concerned, it was ina~lniissib1e for th& above reasons, and also becanse ~t is strictly a personal privilego, and cannot be taken a6vantage of by the representative of the infant. (2 J. B., 279; 5 Id., 161; Chitty oh Cout., 155; 2 Kent, 239.)
    Besides, the acts of an infant are only voidable, not void; and unless it hacL been stated in the defense that the conveyance of the land was detrimental to the interests of the infant, the plea was bad. (Comyn on Contracts, 704; on Cont., 155; 2 Kent, 234; 1 Story, Eq. Jar., 248; 10 Pet. 11., 234.) Again, the plea ~as inadmissible, unless the consideration
    received by th& infant for the land had been restored. (2 I~ent, 239.) LrcscoMB, J. Of the several defenses set up
   Lipscomb, J.

pleas of the appellant in the court below, and ruled out oii clew urrer, we propose to consider but three of them. Tue appellant pleaded that the note sued on was given in part consideration for certain land o~vnecl by Sarah Kelsey, as one of the heiis of the original patentee o~ the land; that she had conveyed it to 0. K. Winn ; that the plaintiff, as attorney in fact of Winn, had conveyed it to the defendant; that, at the date of the conveyance, the said Sarah was not of age; that she had subsequently, after shecanje of age, by her will, devised it, the said land, to her husband, A. W. Kelsey, and thereby expressed her dissent to the conveyance to Winn ; that the will was set aSide and annulled by the Probate Court, and the title [&~Oh decreed to he hi the sistbr as of the said Sarah, &c. Now, the will may have been invalid as to he devise, and yet would be good as a disclaimer of the deed wade during her minority, and evidence of a repudiation of such deed. We do not decide that it had that effect; nor could we do so, unless it had been set out in the plea; but these suggestions ate thrown out as worthy of consideration should the question be again presented by a more perfect plea. - The Jefeudant pleaded that at the time

that the plaintiff executed the con- ~eyauce to him, as the agent and a~torney of Wino, Wiun was dead, and con- sequently his authority to act had ceased to be valid. The object of this plea was to show the entire failure of the consideration of the note, and to bar a recovery upon it, and not arnere abatement of the suit; and no principle of law is better settled thaii that the authority of an agent to act ceases to exist by the death of his constituent. (Story on Contracts, 1 ed., sec. 34g.) The demurrer admits the truth of tins plea; and we believe that the court erred in sustaining it, and ruling the defense to be bad, because it could not bind the heirs of Winn, and consequciitly ought not to bind the other party to the con- tract. It w'as not merely voidable, but it was void. Again, the defendant pleaded in rceonveiition, the money

dwawthat he had paid upon the purchase of the land, prayed judgment for the same, and that the land should bd decreed subject to the satisfaction of the amount so paid. The last part of the plea, 1. e., the last prayer in it, was unquestionably bad, be- cause, from his own showing, the land was not subject to such decree~i but this might have been stridden out, and the plea would remain good. The suit~ it must be recollected, is in the name of the very person who, without any authority, had made the contract of sale of the land ~tnd received the note. Under such a state of facts, we can perceive no valid objection to the plea, and 200 no valid objection to the plea and that it ought to hare been sustained. Again, the defendant avers that the plaintiff liad practiced a fraud upon him by misrepresenting himself to be the authorized agent of IVinn, aud able to make a good and valid title tO' him to (lie land so conveyed, when lie knew that the land did not belong to O. K. Winn, but to the heirs of Sarah Kelsey, or those claiming under them. The demurrer admits this to be true,- and if so, the fraud certainly tainted and annulled the contract. The court below therefore erred in sustaining the demurrer. For tho errors wo have noticed, the judgment is reversed and the cause remanded.

Note 05. — Brook v. Southwick, 10 T., 05; Claiborne v. Yoeman, 15 T., 44, Fortson v. Caldwell, 17 T., C27; Coopor v. Singleton, 19 T., 200; Woodward v. Rogers, 20 T., 170; Taul v. Bradford, 20* T., 201; JEnrfc r. McReynolds, 20 T., 595; ITnrt v. Blackburn, 20 T., 001; Smith v. Nolen, 21 T\> 490; Littloiiold v. Tinsley, 22 T., 259; Luokio v. McGlasson, 22 T., 282; Herron y. He Bard, 24 T., 181; Littlefield v. Tinsley, 20 T., 858; Johnson v. Long, 27 T.,21; Biayv. Taylor, 27 T., 125;. Baldndgo i\ Cook, 27 T., 505; Lemmon v. Hanley, 28 T., 2L9; Demaret v. Bennet, 29 T., 202; O’Connell r. Duke, 29 T., 299; Tooke v. Bonds, 29 T., 419; Garrison v. King, 35 T., 183; Keep v*. Simpson, 38 T., 203; Price v. Blount, 41 T., 472.

Reversed and remanded.  