
    Lewisburg.
    Pence, for &c. v. Huston’s ex'ors.
    
    1849. July Term.
    
    (Absent Cabell, P. and Brooke, J.)
    1. In debt upon a bond the defendant files a special plea under the act of April 16th, 1831, in which he alleges that the bond was executed for part of the purchase money of a tract of land which the obligee in the bond had conveyed to the defendant, with a covenant to warrant the title thereof free from the claims of all persons whatsoever. That a valid claim had been set up to the land by a purchaser from the defendant’s vendor, and the defendant had been compelled to give up the land; and had purchased it again from said claimant at an advanced price. The plaintiff took issue on the plea; and there was a verdict for the defendant. Held : That if the plea does not set up a defence which is authorized by the statute, yet it asserts a substantial claim against the plaintiff; and after verdict it is cured by the statute of jeofails.
    
    
      2. Qttjere : If a breach of a covenant of warranty in a deed conveying real estate, may be set up as a defence to an action, under the act of April 16th, 1831, Supp. R. C. ch. 109, § 62, authorizing the setting up certain defences, by special pleas in the nature of pleas of set-off.
    This was an action of debt upon a bond for 113 dollars, in the Circuit court of Rockingham county, brought by Charles Pence, for the benefit of Andrew B. Irick, against Archibald W. Huston, and on his death revived against his executors. The defendant appeared and filed two pleas, on which there were issues. The first was the plea of payment; and the second was a special plea of set-off, under the act of April 10th, 1831. This plea was very informal, but in substance it alleged that the bond sued on was given for the purchase money in part of a tract of land bought by the defendant of John H. Pence. That said John H. Pence conveyed the land to the defendant by deed, with the following covenant of warranty, viz: And the said John H. 
      
      Pence, for himself, &c., doth covenant with the said Archibald W. Huston, (fee., the right, title and interest in the land aforesaid, herein conveyed, to the said Archibald W. Huston, &c., free from the claim or claims of all and every person or persons whatsoever, he the said John H. Pence, &c., will by these presents forever warrant and defend. That the price of said land was 300 dollars, for the last payment of which, the bond in suit for 113 dollars was given. That the bond was executed to the plaintiff Charles Pence for the benefit of John H. Pence, because the said John H. had previously taken the oath of an insolvent debtor, and had not either paid the debt on which he took said oath, or since obtained any further title to the land. That previous to the purchase by the defendant, said Pence had sold the land to John Carpenter by an agreement under seal; and that the said Carpenter set up his claim to the land against the defendant, and was about to sue therefor, when the defendant again purchased the land from said Carpenter for 450 dollars. That John H. Pence being insolvent, defendant claimed no damages for the amount of 117 dollars which he had paid.
    On the trial of the cause the jury found for the plaintiff on the plea of payment, and for the defendants on the special plea. And thereupon the plaintiff moved the Court to enter judgment in his favour, notwithstanding the verdict; which motion the Court overruled. And then the plaintiff moved the Court to set aside the verdict and award a repleader; which motion the Court also overruled. Whereupon the plaintiff applied to this Court for a supersedeas, which was awarded.
    The case was argued in writing by Samuels, for the appellant, and Grattan, for the appellees.
    
      For the appellant:
    The issue on the plea of payment was found for the plaintiff: the issue on the special plea, in the nature of a plea of set-off, was found for the defendants; the Plaintiff moved for a judgment notwithstanding the verdict, which motion the Court overruled.
    The question is presented, whether the plea offers a defence which may be made under the statute passed 16th April 1831, Supp. Rev. Code 157, § 62.
    It is submitted, that this section of the statute does not authorize such a defence as is attempted in this case. The mere failure of title to real property does not, of itself, give right to relief against payment of the price. See Commonwealth v. M’Clanahan’s ex’ors, 4 Rand. 482. The breach of covenants for title to real estate is not made a defence by the statute.
    The plea discloses the defendant’s own fraud. This would prevent him from having relief in a Court of equity. “He who hath done iniquity, shall not HAVE EQUITY.”
    For these reasons, the issue was immaterial, and a judgment non obstante veredicto, should have been rendered for the plaintiff. See Mansel on Demurrer, ch. 15, p. 114, 24 Law Lib., 2d series.
    If such pleas could be allowed in cases on contracts for the price of real property; yet the plea in this case not averring any particular amount of damages, and being otherwise defective, the verdict should have been set aside, and a repleader awarded. See 1 Chitt. Pleading, title Repleader, 648.
    For the appellees:
    There having been a verdict for the defendants, no question can arise on the form of the plea. All such questions are settled by the statute of jeofails. Further : There can be no question that Huston, if he had paid all the purchase money of the land, for a part of which the bond sued on was given, would have been entitled to recover against his grantor, the assignor of this bond, upon the covenants of his deed. The covenant is against all claims of all persons, and is a personal covenant; Tabb's adm'r v. Binford, 4 Leigh 132; and Huston has been obliged to surrender the land to a prior purchaser from his grantor. As then the plea sets up a substantial set-off against the plaintiff’s demand, and the plaintiff instead of objecting to the filing of the plea, or demurring thereto, has taken issue upon it and there has been a verdict for the defendant; even if the defence is not such an one as was authorized to be made under the act of 1831, yet the statute of jeofails of 1819, 1 Rev. Code, ch. 128, § 103, p. 511, 512, forbids that it should now be set aside. That act says the verdict shall not be set aside “ for any misconception of the form of the action ; or for any other defect whatsoever in the declaration or pleading, whether of form or substance, which might have been taken advantage of by demurrer, and which shall not have been so taken advantage of.” And although this may not aid a declaration or plea which states no ground of claim, yet where the claim asserted is substantial, it must be held to be protected by the statute, though the form of the action or defence is not the regular one. See Chew, ex’or &c. v. Moffett &c., 6 Munf. 120; Tomlinson’s adm’r v. Mason, 6 Rand. 169.
    But in truth the defence set up in the special plea is authorized by the act of 1831. The bond sued on was given for a part of the purchase money of land ; which the defendants’ testator has been obliged to surrender to a superior title. There has been, therefore, an entire failure in the consideration of the bond; and this the act authorizes to be set up as a defence to it.
    The act provides that in all actions founded in contract, whether by deed or parol, the defendant may file a special plea in bar, alleging any such failure in the consideration thereof, as would entitle such defendant either to recover damages at law in any form of action, from the plaintiff, or from the party to the contract under whom the plaintiff claims, or to relief in equity in whole or in part against the obligation of the contract upon him.
    The plaintiff claims under Pence the vendor; and to sustain the plea, it is only necessary to shew Huston's right to recover damages from Pence at law, or relief in equity.
    As I have before said, the covenant in the deed is a personal covenant. Tabb's adm'r v. Binford, 4 Leigh 132. It is not simply a covenant for quiet enjoyment, but against all claims. True, this will be construed claims valid in law or equity. Now here Carpenter did set up his claim and threatened a suit; and his claim was obviously valid. The covenant was, therefore, then broken, and an action might then have been brought upon it. The covenant that vendor has good title, where he has not, is broken at once; and it is held an action may be brought at once.
    But if there is any doubt on the question of Huston's right to sue at law, there can be none as to his right to relief in equity. Koger v. Kane's adm'r, 5 Leigh 606; Stockton v. Cook, 3 Munf. 68; Ralston v. Miller, 3 Rand. 44; Castleman v. Veitch, 3 Rand. 598. Being entitled to relief in equity, he is entitled to set off under the act of 1831.
    The defence may also be sustained under the second clause of the 62d section of the act; as the plea sets up matters existing before the execution of the bond such as would entitle the defendants to relief in a Court of equity.
    As to the suggestion in the note of Mr. Samuels, that Huston so concurred with Pence in committing a fraud upon his creditors, as to deprive him of the benefit of his defence ; if it was well founded, it would only apply to a defence under the second clause of the 62d section of the act of 1831. But 1 cannot perceive how it can be brought to bear upon this case now. The defendant has been permitted to make his defence without objection by the plaintiff; and he has the verdict. If the Court now sets aside the verdict, it is to be done on the motion of the plaintiff, who represents the party who committed the fraud. So, too, if the doctrine referred to has any application to the case, it must be applied to defeat the action of the plaintiff in his attempt enforce a security founded in fraud. But I do not suppose the doctrine has any application. The allegation in the plea, on which the counsel on the other side relies, is mere surplusage, not necessary to make out the defence, and will; therefore, be rejected as such.
    The objection that the plea does not set out the amount of damages sustained by the defendant, comes too late after verdict, even if it was well founded. But the plea does in fact set out the amount claimed in this action. It states that Pence is insolvent, and nothing could be made out of him; and the defendant only claims the amount of the bond. This objection too only refers to a defence under the second clause of the section aforesaid.
    If I am correct in supposing that the plea presents a substantial defence, then there is no necessity to enquire into the doctrine in relation to judgments non obstante veredicto, or repleaders.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that the matters set forth in the plea constituted a substantial defence to the action. The covenant in the deed referred to being a personal one, and the claim set up against the land appearing to be valid, the defendant would have been entitled to relief either at law or in equity. And as the plaintiff instead of objecting to the filing of the plea, or demurring thereto, has taken issue upon it, and there has been a verdict for the defendant, the question does not arise whether the defence was authorized by the act of 1831. The defect, if any, in the plea being cured by the act of jeofails, 1 Rev. Code, ch. 128, §, 103, p. 511, 512. It is, therefore, considered that said judgment be affirmed.  