text:
    Thomas Judy, administrator, and Frances Allington, administratrix of the estate of William Allington, deceased, appellants, vs. Thomas O. Kelley, appellee.

      Appeal from Madison.

    A judgment rendered inthe. Courts of a slster_state^a gn irisAan_n fouimshatorffcrivi ng his_ authority uiuIcrAnd^wí'jroe ofAhedawn oORis_staite^_who voluntarily entereffKis appcgr- J anee to 'the^aetion in which_su_ch4ndgni^UjwnSAnroiipm^ enforcedTih' our_ ~~ ~ ~
    A jndgm^t rendo'^jinjleivsnch'Circnpistanc^s isa nullity 1iere/~and the creditor mu&t resort tA Ins' action jip.()nAh(u>TÁgjnal contracts ' '*“ -
    A^ángoi3(hnimstratio!iñn!bñexmnitry^(xmfers on an_.admiuisü'ator np_=ütlA to the pro^Hy^)f^heJu^t^at^.8Íinate^in_nnot1foTCooñiiíj^J^[leJn!Lsjiojfaifoiityoyorj nor is he ro''STimisibie for eiiy__eifeids^f-Alic-ngtate_that.triay^heJjey()ii(i the j urisdiction appmntiñg Em."
    SuchjKljuinistrator.Jii liis-ollidai capacity, can neitheiE^iC-bor beAucd.-Out off ^oAoüntry from which fcaclfproperbyL or colfocEdehts, J).elonQi^_toAUpA‘8tate_jn a foreign country, lie must there obtain leffoíEji^Adminiiitivation r-nu(AgiveAnch.Pccurity, and'.'TE^melEElícetAo VuchTi-égu-J Intipps, us»hs-la^ysnaay=presci!ihe-=-^=^--
    A plea to a u _a ctionJirougnt against an administra,t.cir.,—on-n. deiAtAuehxhisJ^tostato, that siichAeina7id^wns-not'7^"ilntoiCaEnm5t"-sali<l-ebtate-rwithm two^vears afrerthe grant i)f administration, is a good_defenc(P_ If the debt v/as^^^dFt^ifnmdlie twoAlbiuETOf"if the plahTtiff'fcAiorctl uiidcr any„of the (lisahaftitETiientioncil iñ the statute, the plaintiff should set forth thérfiieís in a special replication.
    Where the plaintiff.has faüeíl.ton?^iliitJiisilcraan(lagain_st ^e estato, _witliin the two year's limited by the statute, he is, liovertheless^entitled to «a judgment against’ the administrator for tliEamount"found to be duo him, to be satisfied' <>ut of such aVsets'hs'niay thereafter be diseovnmlEanírwlIichiiWelaot been4nvenfcoi-iedxa^nec(rantedToiAiy^tae inirmnisiTators
    In this'stale^fc'plear-of-p/eac ud~Mñi$typytt"\&)to'Enswci^t^an^action • brought -against an administratorjmpori áTdebt due by his intestate. E-.EÜ~
    A judgment-hrthi^talc.ngainsLmT^^mm^trator^ is no^a^^mission of assets sufficient to sati4yffhe4ebtits onjy cffecbJ¿ to3A:tblish^áT4¿hE-ágaiiist4Vid^c¿tate^ to be paid in due course xf administration.
    The creditor is not entitled to execution on his judgment .against Ahe.. administrator, or the property of the intestate. '
    This is an action of debt, brought against plaintiffs in error, apon a judgment rendered against them as administrator and administratrix of said William Allington, deceased, in the Court of Common Pleas of Warren county, Ohio. The judgment was against them, de bonis testatoris. To which the defendants below pleaded several pleas.
    1. That they had. not, on the day of exhibiting the bill of the plaintiff, nor have they at any time since, had any goods and chattels which were of the said William Allingtan, deceased, at the time of his death, in their hands as administrator, &c. 2. That administration of the goods and estate of the said William Allington, deceased, was granted to them on the 9th day of September, A. D. 1839, at the county of Madison, by the probate justice of said county; and that no right of administration was granted to them, or either of them, on said estate elsewhere; that they undertook the administration thereof at the same time and place, and that said demand was not exhibited or filed by the said plaintiff, at any time within two years from and after said day, according to law, &c. 3. Thatthey have fully administered all and singular the goods and chattels which were of the said William Allington, deceased, at the time of his death, and which have ever come to the hands of them as administrators, Sec., to be administered, to wit, at the county aforesaid; that they have not, nor on the day of exhibiting the bill of the said plaintiff, or at any time since, had. any goods or chattels which were of the said William Allington, deceased, at the time of his death, and in their hands as administrators, &c. 4. Jlctio non, except as to fifty-one dollars, because they say they had fully administered all and singular the goods and chattels of the said William Allington, deceased, at the time of his death, and which have ever come to the hands of them, the said defendants, to be administered, except tile said sum of fifty-one dollars, to wit, at the county aforesaid; and that they, the said defendants, have not, nor on the day of exhibiting the bill of said plaintiff in this behalf, nor at any time since, had any goods or chattels which were of the said William Allington, deceased, at the time of his death, in their hands to be administered, except the said goods and chattels of the value aforesaid, &c. 5. That at the time of the rendition of said judgment in the state of Ohio, the defendants were not informed of the condition of the assets of the estate of said William Allington, deceased; nor was it in their power, at that time, nor had sufficient time then been allowed to have said estate declared insolvent, as required by law, or to allow said defendants to ascertain the amount of debts against said estate; but since the rendition of said judgment and before the commencement of this suit, all the goods and chattels belonging to said estate, and which ever come to the hands of the said defendants, had been fully administered and exhausted, in the payment of the debts and demands, of the first and second classes, against said estate, and in accordance with law and the orders of the Probate Court of Madison county aforesaid, duly made and entered, and this, See., wherefore, &c.
    To which pleas the plaintiff below demurred, and the Court sustained the demurrer, and gave judgment for plaintiff below, for $447 04s debt, and $198 49 damages, &c. Cause heard before Underwood, Judge, at August term, 1848. The error assigned was, the sustaining the demurrer to the pleas of defendant below.
    J. Gillespie and G. Trumbull, for appellants:
    1. The judgment upon which this action is brought, is a nullity, it being against administrators appointed in the state of Illinois. Story’s Conflict of Laws, 421; 2 Saund. Plea., 220, note 3. 2. The first plea in this case is a good defence to the action. 15 Johnson, 323. 3. An administrator is bound to plead the statute prescribing the time of prosecuting claims; but he may plead the general statute of limitations, at his option. R. L. Illinois 1845, sec. 115, page 561; 1 Binney, 221; Tollers on Ex., 267; 13 Mass., 201; 16 Mass., 171. 4. The third plea pleaded to the action of plaintiff, can be pleaded herein, and is a good defence to the action. 2 Wash. Va. Rep., 187; 3 Bac. Ab., 81; 5 Cond. Rep., 544. 5. As> to the plea of plene ad~ ministravitpreter, see 2 Saunders on Plead., 221. 6. The fifth plea herein, setting forth the facts, that at the time of the rendition of the judgment in Ohio, the defendants were ignorant of the condition of the estate, and it was impossible to find it out, but that since and before the commencement of this suit, all the assets have been exhausted in paying debts of the first and second classes, is good under the statute.
    E. Keating, for appellee.
   Opinion by Treat, C. J.:

This is an action of debt, on a judgment recovered in the state of Ohio, by Kelley, against the administrators of William Allington. It appears from the record of the proceedings in Ohio, that the suit was there brought against Allington, in his life-time, and service of process had on him. At a succeeding term, the plaintiff suggested the death of Allington, and obtained leave to revive the suit, against his personal representatives. At a subsequent term, the present plaintiffs in error entered their appearance, and pleaded to the action as administrators of Allington; and a trial of the cause resulted in the judgment now the subject of controversy. The presumption from that record is, that the plaintiffs in error obtained letters of administration on the estate of Aldington in Ohio. To repel this presumption, the second plea alleges, that they were appointed administrators in this state, and that administration was never granted them elsewhere. This presents the question, whether a judgment recovered in another state, against an administrator appointed in this state, can be here enforced against the estate. A grant of administration in one country, does not confer on an administrator any title to the property of the intestate, situated in another country. He has no authority over, nor is he responsible for any effects of the estate, that may be beyond the jurisdiction. In administering the estate, he acts only in reference to the effects within the jurisdiction, and the debts that may there be presented against the estate. In his official capacity, he can neither sue nor be sued, out of the country from which he- derives his authority, and to which he is alone amenable. If he wishes to reach property, or collect debts belonging to the estate in a foreign country, he must there obtain letters of administration, and give such security, and become subject to such regulations, as its laws may prescribe. So, if a creditor wishes to bring a suit in order to satisfy his debt out of property in another jurisdiction, administration must there be first obtained. See Story’s Conflict of Laws, section 518, and the numerous authorities there cited. There are a few cases in this country, to the effect that a foreign executor may be sued in another jurisdiction, and be there made liable to the extent of the assets he may have with him; but the cases go no farther than to sustain the action for the purpose of subjecting such assets to the payment of the particular debt. Campbell vs. Tousey, 7 Cowen, 64; Swearingen’s Ex’rs vs. Pendleton’s Ex’rs, 4 Sergeant & Rawle, 389; Evans vs. Tatem, 9 do., 252; Bryan vs. McGee, 2 Washington’s C. C. R., 337. It may be doubted, whether these decisions can be supported on principle or authority; but conceding their correctness, they have no direct bearing on this case. The attempt here is to enforce against an estate a judgment rendered in Ohio, against administrators appointed in this state. It is clear that the state of Ohio could not rightfully extend her jurisdiction over the plaintiffs in error, in their official character, while within her limits, further than to compel them to account for such assets as they might there have. The plaintiffs in error derived their authority from this state, and they are to be made responsible here only, for their acts. That state may grant letters of administration on the estate, and in that way have the effects found within her territory administered; but she cannot, by proceedings in her own Courts, reach the assets in this state, or establish claims against the estate that will here be enforced. The debts against the estate are to be adjusted, and the effects belonging to it distributed, according to our own laws.

But it is insisted, that the plaintiffs in error, by entering their appearance to the action in Ohio, submitted themselves to the jurisdiction of the court, and cannot now question its authority to pronounce the judgment. This position would be correct, if the proceedings there had been against them personally; but as respects them in their representative capacity, we think the effect is otherwise. The grant of administration in this state gave them no control over the estate in Ohio. It did not confer on them any authority to appear and defend the action—any power to go into another jurisdiction, and there permit claims to be adjudicated against the estate. Their authority is limited, and when they exceed it, their acts will not bind the estate. The appearance being wholly unauthorized by our laws, the judgment that resulted from it is not binding on the estate. If binding here, for any purpose, it is against the plaintiffs in error, personally. If the judgment had been obtained against an administrator, duly appointed in Ohio, the record would not be evidence of indebtedness, in an action against the administrators, in this state. Where administrations are granted to different persons in different states, they are so far regarded as independent of each other, that a judgment obtained against one will furnish no right of action against the other, to affect assets received by the latter, in virtue of his own administration; for, in contemplation of law, there is no privity between him and the other administrator.” Story’s Conflict of Laws, sec. 522.

We are of the opinion that the judgment, if the allegations of the plea are true, cannot be here enforced against the estate. It is not such an adjudication as will bind the estate. The demand against the intestate has not been adjusted in pursuance of our laws, but in defiance of them. If the creditor wishes to secure any share of the assets in this state, he must sue on his original cause of action. This conclusion is not in conflict with the case of Davis vs. Connelly’s Ex’rs, 4 B. Monroe, 136. That was an action brought in Kentucky, against executors appointed in that state, on a judgment obtained against them in Ohio. The executors pleaded that they had never administered in Ohio ; and the plaintiff replied that the defendants, acting as executors and professing to be such, entered their appearance in the original action, and thereby became executors de son tort, and are estopped to deny that they were executors in Ohio. The Court sustained the replication, and decided that the defendants were chargeable, as executors in their own wrong. In this case, the plaintiffs in error are not sued as executors de son tort; but the object of the suit is to enforce the judgment against the estate, and satisfy it out of the assets.

The second plea also alleges, that the demand sought to be recovered, was not exhibited within two years after the grant of letters of administration. The statute provides that “ all demands not exhibited within two years as aforesaid, shall be forever barred, unless such creditor shall find other estate of the deceased, not inventoried or accounted for by the executor or administrator ; in which case his claim shall be paid pro rata, out of such subsequently discovered estate', saving, however, to femes covert, infants, persons of unsound mind, or imprisoned, or beyond the seas, the term of two years after their respective disabilities be removed, to exhibit their claims.” R. S., chapter 109, sec. 115. If a demand against an estate is not exhibited within the time limited by this provision, the creditor is excluded from any participation in the assets already received by the administrator, and he must satisfy his debt out of subsequently discovered estate. The plea, therefore, required an answer from the plaintiff. If he exhibited his claim within two years after administration was granted, or if laboring under one of the disabilities named in the statute, he exhibited it within two years after the same was removed, it should have been specially replied. If barred, however, by the statute, from receiving any share of the estate already inventoried or accounted for, he would still, on proof of his debt, be entitled to a judgment for the amount due, to be satisfied out of future assets. Thorn vs. Watson, 5 Gilman, 26. The Circuit Court erred in sustaining a demurrer to the second plea. The plea was, perhaps, obnoxious to a special demurrer, as presenting two distinct defences to the action. But no such objection was taken.

The demurrer was properly sustained to the other pleas. Under our statute, they present no defence to the action. At common law, the failure of an administrator to plead a want of assets, or that he had fully administered, operated as an admission on his part that he had assets, sufficient to satisfy the demand; and he was afterwards estopped from asserting that he had no assets, or that he had fully administered. Hence the necessity of this class of pleas. The case is different under our statute. It provides “that no executor or administrator, or security for an executor or administrator, shall be chargeable beyond the assets of the testator or intestate, by reason of any omission or mistake in pleading, or false pleading of such executor or administrator.” R. S., ch. 109, sec. 77. A judgment against an administrator, only establishes a debt against the estate, to be paid in the due course of administration. The creditor is not entitled to execution on his judgment, either against the administrator or the property of the intestate. Welch vs. Wallace, S Gilman, 490. This change of the common law dispenses with the plea of plene administravit, and renders it wholly unnecessary. It is, in fact, no defence to an action against an administrator. A creditor has the right to bring his suit, at any time within one year after the administrator has settled his accounts with the Court of Probate, and recover judgment, to be satisfied out of assets thereafter to be discovered. R. S., ch. 109, secs. 102 and 115. Thorn vs. Watson, 5 Gilman, 26.

The judgment of the Circuit Court will be reversed, and the cause remanded for further proceedings.

Judgment reversed.

      Mr. Justice Trtoiuull haying been of counsel, did not sit at the hearing of this cause.


source: Caselaw Access Project

author: Opinion by Mr. Justice Catón :

license: Public Domain

text:
    Isaac G. Israel, who sues for the use of E. B. Scholl, plaintiff in error, vs. William T. Reynolds et al., defendants in error.

      Error to Pike.

    In an action upon an instrument of indemnity, the plaintiff must aver in the declaration^ that it was given for a sufficient consideration, and that he has been damnified by having to pay.
    "Where a general demurrer is filed to several counts in a declaration, one of which is good,, the demurrer should be overruled.
    This action was commenced by attachment. The first four counts in the declaration were special, and founded upon the following instrument of writing:
    “ St. Louis, Petty 5th, 1848.

      u I. G. Israel, esq.

    “ Dear Sir : In accordance with your request, we herein state, that according to our understanding with you, when we purchased your property, known as St. Louis, Ill., we will pay for the boiler purchased by you, for your saw mill, and not yet paid for by you, with the understanding, that the cost of said boiler does not exceed three hundred and fifty (350) dollars.
    “Yours, truly, W. T. Reynolds & Co.”
    The fifth count, was for work and labor; goods, wares, and merchandize, sold and delivered; money paid, laid out, and expended, and an account stated.
    To this declaration the defendants filed a general demurrer to the first, second, third, fourth and fifth counts; and to all the counts of said declaration, except the first, second, third, fourth and fifth, pleaded the general issue; to which last plea a similiter was added. There was a joinder in demurrer. The judgment of the Court below on the demurrer, is as follows : “ The demurrer filed to the first, second, third, fourth and fifth counts being heard, is sustained, and leave is given plaintiff to amend the second count in his declaration.” The plaintiff abided by the counts in his declaration, except as to the second count. This count was amended, demurred to as amended, and demurrer sustained. A trial by jury was had, on the issue joined, as the record represents, and a verdict was found for the defendant at April term, 1849, before Minshall, Judge. A motion for a new trial was made by the plaintiff, which was overruled. A bill of exceptions was filed, which it is unnecessary to notice, as the opinion of the Court is founded upon matters extraneous of the statements in the bill.
    The first count in the declaration states, that the defendants, as co-partners, made their certain instrument in writing, bearing date, &c., and thereby, then and there, promised the plaintiff in the words and figures following, to wit, (here setting forth the foregoing instrument verbatim,) and then and there delivered the said instrument or undertaking in writing, to the said plaintiff, and avers that the boiler cost the sum of three hundred and fifty dollars, and that the cost of the boiler did not exceed the sum of money in the said instrument, &c., specified, and the said defendants then and there, in consideration of the premises, undertook and promised to pay to the said plaintiff the said sum of three hundred and fifty dollars, according to the tenor and effect of said instrument, &c.j avers the indorsement before payment to one Stephen H. Gray, and an indorsement from Gray to the said Edward B. Scholl, for whose use this suit is brought; by means whereof, and by force of the statute, the said defendants became liable to pay Scholl the sum of money in the said instrument, according to its tenor and effect ; and being so liable, undertook and promised to pay the plaintiff, for the use of Scholl, the sum of money specified in the said instrument or undertaking in writing, according to the tenor and effect thereof. The second count is like the first, omitting an averment of the assignments. The third count omits the instrument, but sets forth its tenor and effect, and omits averment of assignment, but is in other 'respects like the first count. The fourth count sets forth, that the defendants made their certain other instrument or undertaking in writing, bearing date a certain day and year therein mentioned, to wit, the day and year aforesaid, and then and there delivered the same to the said plaintiff, and then and there promised to pay the said plaintiff the sum of three hundred and fifty dollars, according to the tenor and effect of said instrument or undertaking in writing. The fifth count is the common count. The only breach assigned is at the conclusion of the fifth count.
    The plaintiff below sued out this writ of error, and assigns for error the refusal of the Court below to grant a new trial} the sustaining of the demurrer to the first five counts, respectively, of said plaintiff’s declaration; that the verdict of the jury and judgment of the Court is contrary to the law and evidence, and that the verdict and judgment should have been for the plaintiff, and not for the defendant.
    C. A. Warren and O. C. Skinner, for plaintiff in error, make the following points:
    1. The defendant’s demurrer is general, and to the first five counts of the declaration, and includes the first common count. He insists that the first, third and fourth special counts are good on general demurrer; but if held bad, the fifth count is good, and, therefore, the demurrer should have been overruled. 2. The second special count overruled is good, and the demurrer to this count should have been overruled. 3. The paper evidence offered was proper in support of the common counts, 5 Gil., 587; 4 ibid, 46, 48; 2 Greenl., secs. 113, 114. 4. The Court should have granted a new trial. To the first point, the following authorities : Breese, 53; 1 Scam., 421; 3 Black. R., 16.7; 3 Black. R., 251. 5. Although the written instrument did not make complete proof, yet, if it tended to prove a liability to pay, it ought to have gone to the jury.
    R. S. Blackwell and M. Hay, for defendants in error:
    The first count is bad, and the demurrer properly sustained. 1. The instrument is not embraced within the provisions of the statute. R. S., 384, sec. 3; because no certain sum is named ill the instrument; because payable on a contingency. Cogshell vs. Cogshell, 1 Strobhart R., 43. Because no person named therein as payee. Mayo vs. Chenoweth, Breese R., 155; Walters vs. Short, 5 Gil., 252. Therefore, a consideration should be averred in the declaration ; the instrument creating no legal liability. Letcher vs. Taylor, 2 Bibb, 572, 585; Prior vs. Linsey, 3 Bibb, 76-7. 2. If the instrument does not import a consideration, because not within the statute, and the instrument set out in this count in hsec verba, showing upon its face a past and executed consideration, the count should aver that the boiler was purchased at the request of Reynolds & Co. Comstock vs. Smith, 7 John., 87; Parker vs. Crane, 6 Wend., 647. 3. The count showing a promise by Reynolds & Co. to pay for a boiler already purchased by Israel, it is in the nature of a promise to indemnify Israel, and he should aver that he had paid for the boiler, or that he has been damnified in some way. 4. If the instrument is negotiable under our statute, the count shows that Israel parted with his title by assignment, and he cannot, therefore, maintain an action upon it. Campbell vs. Humphries, 2 Scam., 478.
    The second count has been abandoned, by asking leave to amend. The amended second count is clearly bad, beingincomplete and uncertain. The third count is clearly defective. 1. No consideration is directly averred. 2. The one inferentially alleged is past and executed. 8. There is no averment as to whom the money is to be paid. 4. No breach of the promise is alleged. The fourth count is bad. 1. There is no consideration set forth. 2. No time of performance is alleged. 3. No breach is averred.
    There is a misjoinder of parties, in the several counts of the declaration, therefore demurrer was properly sustained to the whole declaration. 1. Chitty’s Plead., 236, 704. The Court can take no notice of the errors predicated upon the bill of exceptions, because it is informal and insufficient. 3 Scam., 63.
    Admitting that the demurrer was improperly sustained to the fifth count, yet the Court will not reverse the judgment. 1. Because they have committed the first irregularity in not joining in our demurrer to their declaration; which, under ordinary circumstances, would amount to a discontinuance. 2. Because they could have offered no evidence under the common counts, but the writing set forth in the affidavit, upon which the attachment was founded. Reasons : first, lien of attachment is good as against third persons, to the extent and nature of the debt set forth in the affidavit; second, defeats debtor’s remedy on bond. Fairfield vs. Baldwin, 12 Pick., 388. And the writing was inadmissible under the counts. Because, if valid, it was in full force and unrescinded. Robertson vs. Lynch, 18 John., 451; 1 Pick., 118. The legal title was in Gray, by virtue of the assignment. The writing was not evidence, under any of the specifications contained in this count. 3. The plaintiff is not prejudiced by the decisions of the Court, and it appearing from the whole record that justice has been done, the judgment will not be reversed. 3 Scam., 485-6; Sheehan vs. Hampton, 8 Ala., 942; Cunningham vs. Carpenter, 10 Ala., 109; Rakes vs. Pope, 7 Ala., 162; McKenzie vs. Jackson, 4 Ala., 230; Evans vs. Gordon, 8 Porter, 142; Proskey vs. West, 8 S. & M., 718; Smith vs. Elder, 7 S. & M., 507; Elliott vs. Fowler, 1 Littell, 201, 202; Clark vs. Boyd, 6 Monroe, 295; Williamson vs. Richardson, 6 ibid, 606-7; Sanders vs. Johnson, 1 Bibb, 322; Jones vs. Handley, 3 Bibb, 225; Harman vs. Kelley, 14 Ohio, 502; Andre vs. Johnson, 6 Blackford, 375.
    The demurrer being to the whole declaration jointly, the plaintiff, after demurrer was sustained, having asked leave to amend, and having actually amended second count, abandoned his whole declaration, and cannot now assign for error the decision of the Court upon the demurrer. The issue of fact and trial by jury waived the demurrer as to the fifth count.
    O. C. Skinner, in reply:
    As to the manner of counting in the declaration, upon the causes of action set forth in the affidavit, see Palmeras. Logan, 3 Scam., 56. That if the instrument counted on shows that there was a specific sum of money to be paid, it is good evidence to go to the jury upon the common counts. 2 Greenleaf, secs. 113, 114, and note 7. The agreement shows a distinct promise to pay, and it is presumable that the plaintiff has been compelled to pay for the boiler, inasmuch as defendants did not pay. The plaintiff paid a debt for defendants, a debt which they were liable to pay, in order to relieve himself from his original liability to pay, and which defendants bound themselves to pay in his stead. That plaintiff had a right to offer the instrument to the jury, as a step in his proof, and the Court ought not to have forbidden it, as plaintiff might afterwards supply any omission and establish his case. Rogers vs. Brent, 5 Gil., 587.
   Opinion by Mr. Justice Catón :

That the first four counts of this declaration are bad, we entertain no doubt. The writing on which they are founded, is not one upon which alone an action can be maintained under our statute; and we must, therefore, be governed by the common law rules. It seems to be in the nature of an indemnity against the debt, which the plaintiff owed for the boiler, and, in order to maintain an action upon it, it was necessary to show that the writing was given upon a sufficient consideration; and that the plaintiff had been damnified by having had the debt to pay, which the defendants had promised to discharge. The fifth is the common count, and its sufficiency is not questioned. As there were hut five counts in the declaration, the demurrer was, in fact, to the whole of it, and was improperly sustained to the fifth count; and in this there was error. The defendant filed a general issue to all of the declaration, except the five first counts, and there being hut five counts, of course the plea answered nothing, and could present no issue. As there was no issue to the country'formed, the trial which took place was a nullity, and it is not necessary to examine its history. It may be true, that the demurrer was only designed to be applied to the special counts, and that the general issue was supposed to he filed to the common count. But however probable this may be, we are not at liberty to assume that it was so, in defiance of the record, which declares to the contrary.

The judgment of the Circuit Court is reversed, with costs, and the cause remanded, with leave to both parties to amend theirp leadings.

Judgment reversed.


author: Opinion by Mr. Justice Trumbull :

text:
    Josiah H. Rucker and James Gordon, and Collins & Kellogg, plaintiffs in error, vs. Davis Fuller, defendant in error.

      Agreed case from Morgan.

    To entitle a party in a “civil action” to a pro rata distribution, under the 26th section of chapter 9, of the Revised Statutes, of the proceeds of property attached, such party must obtain judgment at the term to which the attachments are returned.
    ■If the civil action, commenced at the same term of Court as the attachments, should, for any cause, be continued, although without the fault or consent of the plaintiff in such action, he would thereby lose the right to share with the attaching creditors, in the proceeds of the attached property; and this, though the attachments should also be continued, and judgments should eventually be entered in all the causes, at the same term of the Court.
    Suits commenced and made returnable to a regular term, subsequent to a special term, and before its appointment, would, under our statutory provision, become returnable to the special term; but cases which had been made returnable to a prior regular term, would still be so returnable, although continued into the special term for further action.
    The agreed case, shows that Collins and Kellogg, as also Gordon and Rucker, sued out attachments against one Carlisle, refumable to the September term, 1849, of the Morgan county Circuit Court; which attachments were levied upon real and personal estate, and under them debts were also garnisheed. The Circuit Court to which these attachments were made returnable, stood adjourned, at four of the clock in the afternoon of the second day of the term, under the statute, in consequence of the non-attendance of the Judge. Afterwards, the Judge appointed a special term of the Court, to be held on the third Monday of November, 1849; during which term the attaching creditors obtained their judgments against Carlisle. Fuller, the defendant in error, at the special term of the Court, also obtained a judgment against Carlisle, in assumpsit, upon a cognovit. At the same term the Court directed, among other things, that the proceeds of all the property attached, after the costs should be paid, should be divided pro rata between the plaintiffs in the attachment suits and the plaintiff in the suit in assumpsit. To this order all the parties excepted. In the case of Fuller against Carlisle, in assumpsit, it was agreed, that the power of attorney authorized the confession of a judgment to Fuller, at the said September term, or any subsequent term of said Court. AH the judgments were entered at the same term, but the suit of Fuller against Carlisle was not entered upon the docket until the special term. The cause was brought to this Court for the purpose of settlingthe exceptions above stated, as to the rateable disposition of the effects attached in said attachment causes. Cause tried before Woodson, Judge.
    M. McConnel, for Rucker & Co.
    David A. Smith, for Collins & Kelloggs
    The decision of the question made must depend upon the proper construction of sec. 26, title, “Attachments in the Circuit Courts,” and secs. 28, 43, 50, title, “ Courts,” of Revised Statutes. 1. Under sec. 26, by its very terms, in order to give a judgment creditor, proceeding by attachment, the right to share in the proceeds of the property attached, he must obtain his judgment against the defendant in attachment, at the same term to which the writ or writs of attachment may be returnable. 2. To what term of the Court were the attachments of the plaintiffs in error made returnable P By their very terms, to the September term, 1849—from which they were continued, by operation of law, “ until the next succeeding term.” Sec. 28, title, u Courts.” 3. Sec. 43, title, “ Courts,” provides for the appointment of special terms of the Circuit Courts for specific objects—appointments being made by order of Court, during a regular term of the Court—and process may be made returnable to the second, description of special term provided for in that section, “ with like effect as at a regular term.” 4. We maintain that a proper construction of sec. 50, title, “ Courts,” does not authorize the appointment of a special term to which process eo nomine may be made returnable. The words at the close of said section, “ and all process which may have been made returnable to the regular term, shall be deemed in law returnable to the said special term appointed as aforesaid,” are properly applicable to process which may have been issued and made returnable to a regular term of the Court, to have been holden after the appointment of the special term, and does not apply to a regular term that may have been adjourned, or that has lapsed in consequence of the non-attendance of the Judge, by 4 o’clock, P. M., of the second day of the term. A suit cannot be expressly instituted to the special term provided for in this section. The Court below, in construing this section, arrived at the conclusion, that the attachment writs o'f the plaintiffs in error were, by operation of law, returnable to the special November term, 1849, when they were returnable to the regular September term, 1849. The claims of the defendant in error to share in the proceeds of the attached property, ought to be very strictly construed; because of the facility with which attaching creditors may be cheated out of the avails of their superior diligence, by colorable and collusive confessions of judgment by a defendant in attachment.
    Brown & Yates, for the defendant in error:
    Had the judgments of Collins & Kellogg and Rucker & Co. been entered at the September term, as they would have been but for the lapse of the term, it is conceded by appellants, that all would have rightfully shared pro rata in the distribution of the estate of the debtor. This is good law, and consonant with the principle that equality in the payment of debts is equity. If so, can the lapse of the term, and the rendition of the judgments at a special term, holden at the earliest period consistent with the official duties of the Judge, in holding other Courts, so alter the rights of the parties, as to entirely destroy and take away those of Fuller? If it can, he loses his rights without fault or negligence on his part. Fuller, by obtaining a power of attorney to confess judgment at the September term, is equally as diligent as the attaching creditors, and is entitled to equal favor. Had he placed his case upon the docket at or before the commencement of the lapsed term, the rights of the parties could not have been altered thereby. The judgments would not have been hastened thereby, nor could the final order of the Court have been different from that rendered.
    In order to give plausibility to the attempt to “rob” (a fa mode plaintiff’s brief) Fuller, the Court is asked soto construe the 26 th section of the attachment law as to say, that if Fuller’s suit had been regularly brought and process issued to the September term, and returned duly executed, still, if, in consequence of the lapse of the term, his judgment was not entered up at the September term, but at the next succeeding term, (at which term the judgments in attachment were also rendered,) his right to a pro rata distribution is gone. Such construction would certainly overlook the spirit of the law, and stick in the letter. The object of the law is to equalize diligent judgment creditors, whether by attachment or otherwise, and should be liberally construed, to effect that end, and not “ strictly,” as contended for by appellants, to enable men who are easy to swear out writs of attachment, to “ cheat” more honest and conscientious creditors out of a fair division of the effects of a common debtor.
    The assumption that the special term was appointed after the lapse of the September term, is gratuitous. It does not so appear in the record. It may have been appointed before, and in favor of the judgment of the Court below. It will be so considered, if necessary to sustain the judgment. The record does not show when the term was appointed, and if before the September term, then, according to plaintiff’s brief, the judgment is right. If the order appointing the special term were made after the regular term, still we contend that the judgment was right. The language of the law is exceeding broad: “All process, which may have been made returnable to the regular term, shall be deemed in law returnable to the special term; 33 and there is nothing in the facts of this case, which requires' that it receive a narrow construction.
   Opinion by Mr. Justice Trumbull :

These cases came before the Court from Morgan county, upon an agreed state of facts; from which it appears, that writs of attachment were sued out against Carlisle, one at the suit of Rucker & Gordon, and another at the suit of Collins & Kellogg;' and both made returnable to the September term, 1849, of the Morgan Circuit Court. That Carlisle, previous to said term of Court, executed a power of attorney, authorizing the entry of judgment against him, in favor of Davis Fuller, at the September or any subsequent term of said Court. For some cause, the September term was not holden, and a special term was appointed, and held in November following; at which special term, judgments were rendered in the attachment suits, and also by confession upon the warrant of attorney in favor of Fuller; and the Court directed that the proceeds of the property attached, be applied pro rata to the plaintiffs in said three suits, according to the amount of their several judgments. It' is insisted by the attaching creditors, that the order allowing Fuller to share with them in the proceeds of the property attached, is erroneous. The correctness of this order depends entirely upon a statutory enactment. Sec. 26 of ch. 9, R. S., declares that, in all cases where more than one attachment shall be issued against the same person or persons, and returned to the same term of Court to which they are returnable, or where a judgment in a civil action, which shall also be rendered at the same term against the defendant, who is the same person and defendant in the attachment or attachments, the Court shall direct the clerk to make an estimate of the several amounts each attaching or judgment creditor will be entitled to out of the property of the defendant attached, either in the hands of any garnishee or otherwise, after the sale and reecipt of the proceeds thereof by the sheriff, calculating such amount in proportion to the amount of their several judgments, with costs, as the same will respectively bear to the amount of the sum received; so that each attaching and judgment creditor will receive his just part thereof, in proportion to his respective demand.35 The provisions of this section provide for dividing pro rata among attaching creditors, whose attachments are returned and returnable to the same term of Court, without regard to the time when judgments are obtained, the proceeds of the property attached. But to entitle a party in a civil action to share in such proceeds, he must obtain judgment at the term to which the attachments are returned. His commencing suit to the same term is not sufficient, but the law requires that he should obtain a judgment at that term. If, therefore, the civil action, commenced to the same term of court as the attachments, should, for any cause, be continued, although without the fault or consent of the plaintiff in such action, he would thereby lose the right to share with the attaching creditors in the proceeds of the attached property ; and this though the attachments should also be continued and judgments eventually entered in all the causes at the same term of Court. In this ease the judgment in favor of Fuller was not rendered at the same term of Court to which the attachments were returnable, and it was, therefore, erroneous to direct that Puller should share pro rata with the attaching creditors, in the distribution of the proceeds of the attached property. It is true that it was no fault of Fuller’s that the regular September term was not held; and had it been held, he could have obtained judgment, which would have stood upon the same footing as the judgments in the attachment suits.

It has been insisted that, inasmuch as the law declares that all process made returnable to a regular term, shall be deemed in law returnable to the special term when one is appointed, that therefore the writs of attachment in this case are to be regarded as returnable to the November special term. This provision of the statute has reference to process made returnable to a regular term beyond the special term. Suits commenced to a regular term subsequent to the special term, and before its appointment, would by this statutory provision become returnable to the special term, but cases which had been made returnable to a prior regular term would still be so returnable, although continued into the special term for further action.

Why the Legislature should have provided for an equitable distribution of the proceeds of attached property among creditors, whose attachments are returnable to the same term, although judgments may be entered in said attachment suits at different terms, while a creditor in a civil suit should not be permitted to share with the attaching creditors, although his suit may have been pending at the same time with the attachments, unless he can obtain judgment at the term to which they are returnable, is not for the Courts to inquire. The whole matter is one strictly of statutory regulation; and when the Legislature has clearly declared its intention, the Courts have no power to depart from the plain language and requirement of the statute, for the purpose of establishing, as they may suppose, a more equitable rule.

The judgment of the Circuit Court, directing the proceeds of the attached property to he distributed pro rata to Fuller and the plaintiffs in the attachment suits, according to the amount of their several judgments, is reversed, and the cause remanded.

Judgment reversed.


author: Opinion by Treat, C. J.:

text:
    James E. Furness, plaintiff in error, vs. Archibald Williams, administrator of Martin Baker, deceased, defendant in error.

      Error to ¿¡dams.

    Where a defendant files several special pleas, to which the plaintiff replies, and defendant neglects to add the similiter, he cannot assign for error that the Court below rendered judgment for the plaintiff without first disposing of the issues of fact, upon the pleas and replication.
    A party is not allowed to take advantage of his own errors and omissions.
    Where an action is brought upon a note, which was given for the consideration of a conveyance of land, with a covenant that the grantor had good right to convey, it is no defence to the action to plead that at the time of the conveyance, a part of the land, equal to the value of 55350, of the purchase money, had “been sold under and by virtue of the revenue laws of this state to one Riddle, in the year 18 44, for the taxes due thereon to the county and state aforesaid for the year 1813, and that two yeara have elapsed since said sale of the same as aforesaid, and the same has not been redeemed, whereby the said portion of said premises became lost,” &e. The defendant should have set forth the proceedings under which the land was sold for taxes, so that the Court can see that the covenant has been broken; or he must make the general averment that the sale was legally made, and the title became thereby divested out of the plaintiff.
    A covenant of seizin only extends to a title existing in a third person, which may defeat the estate granted by the covenanters. It docs not embrace a title that is at the time vested in the covenantee, who is estopped from setting up such title against the covenanter.
    A «leed placed in the hands of a third person to hold until the performance of a condition, does not take effect until the condition is performed, and the deed is actually delivered to the grantee.
    This was an action of assumpsit, brought by Baker against Furness, in the Adams Circuit Court, upon a promissory note. payable to one Silas Ramsey, and by him endorsed to the plaintiff, and was tried at the October term, A. D. 1847, before Purple, Judge, without the intervention of a jury.
    The pleadings in the cause are quite voluminous, and such parts of them only will be recited as are necessary to present the merits of the case as decided by this Court. The fifth and eighth pleas set up a failure of the consideration of the note declared upon, to which the plaintiff replied, and tendered an issue to the country, and to which defendant neglected to add the similiter. The sixth re-amended plea was in these words : “And for further plea, &c., defendant says actio non, &c., because, he says, that the promissory note in said declaration mentioned, was made and given for a part of the price and consideration of a certain parcel of land, &c., and for no other consideration whatever ; and which said parcel of land the said Silas Ramsey and wife had conveyed to the defendant, by deed, wherein the said Ramsey covenanted with the defendant that said grantors had good right to convey said premises, and that they were free from all incumbrances ; and the said defendant says, that forty-five feet off the west side of said parcel of land, &c., being a part of the premises aforesaid, of the value of four hundred and fifty dollars, had, at the time of executing said deed, been sold, under and by virtue of the revenue laws of this state, to one Riddle, in the year 1844, for the taxes due thereon for the year 1843 ; and that two years have elapsed since said time of said sale, and the same have not been redeemed: and so the said defendant says, that the consideration for which said note was given has, in part, failed, and the defendant avers that the said plaintiff is not a bona fide assignee of said note, before the same became due, &e., and this the said defendant is ready to verify, &c.; wherefore he prays judgment,” &c. To this plea the plaintiff replied, and the defendant demurred to the replication, to which there was a joinder in demurrer, and the Court below overruled the same.
    The defendant, also, filed his pleas, numbered two, three, four, five, seven, nine, and eleven, the last of which sets out in full the ground relied upon as a defence to the action, and is, in substance, the same as the other pleas, as follows, to wit: “ And for further plea, &c., defendant says actio non, &c., because he says that the promissory note in said declaration mentioned was given by the defendant, and made to one Silas Ramsey, shortly after the sale and conveyance, for the consideration of six hundred dollars, by said Silas Ramsey and wife, to the defendant, of the same premises, in the second plea above pleaded, described by deed, whereby the said Silas Ramsey covenanted that the said grantors were seized in fee simple of said premises ; and the defendant avers, that said promissory note was made and given for part of the consideration of said conveyance and covenant, and for no other consideration whatever; and the defendant avers, that the said grantors, nor either of them, were, nor since then have become seized in fee simple of the following portions and parts of said premises, and described, to wit: commencing at the north-west corner of said lot number two, thence east forty-five feet, thence south one hundred and sixty-five feet, thence west forty-five feet, thence north to the place of beginning; and, also, the following described portions and parts thereof, to wit: commencing at the north-east corner of said lot number three, thence west forty feet, thence south one hundred and sixty-five feet, thence east forty feet, thence north to the place of beginning, both being in said block six, in said Whee-lock’s addition to said city of Quincy, in said county of Adams and state of Illinois, and which said portions and parts of said premises, &c., were then and there, and are now, of the value of four hundred dollars, and of two-thirds of the whole consideration ; and so the said defendant avers, that the consideration for which said promissory note was made and given, hath in part failed, to wit, to the amount and sum of four hundred dollars. And the defendant avers, that the said promissory note was, in fact, assigned to the plaintiff after the same was and had become due, and this he is ready to verify, &c.; wherefore he prays judgment, &e.
    One replication was filed by the said plaintiff, to all of the above pleas, numbered two, three, four, five, seven, nine, and eleven; which it is unnecessary to set out in this statement, as it is copied in full in the opinion of the Court. To this replication the defendant interposed a demurrer, and the plaintiff joined in demurrer, and the Court below overruled the same.
    The errors relied upon by the defendant, to reverse the judgment rendered by the Court below, were : 1. That the Circuit Court rendered judgment for the plaintiffs, without disposing of plaintiff’s pleas numbers five and eight. 2. In overruling defendant’s demurrer to plaintiff’s replication to pleas, two, three, four, five, seven, nine, and eleven. 3. In overruling defendant’s demurrer to plaintiff’s replication to defendant’s re-amended plea, number six. 4. The general assignment.
    C. A. Warren and O. C. Skinner, for plaintiff in error:
    1. The Court rendered judgment for plaintiff below, without disposing of defendant’s pleas. A complete issue at law is formed on the rejoinder of defendant to the replication of plaintiff to defendant’s pleas four and nine, and said issue is no where disposed of by the record. 2. The Court overruled the defendant’s demurrer to plaintiff’s replication to defendant’s sixth plea. This is a plea of part failure of consideration. The replication is no sufficient answer to the plea, and the demurrer should have been sustained. 3. The Court struck from the files defendant’s additional plea, number ten. The defendant had asked and obtained leave to file, and did file additional pleas ten and eleven. They were then regularly filed upon leave. The tenth plea is good, and the Court had no discretion in the matter, after having given leave to file such a plea as was filed. 4. The Court allowed the plaintiff to file replication, setting up new matter to defendant’s pleas, two, three, four, five, seven, nine and eleven. As to the fourth and ninth pleas, there was, then, replication, rejoinder, demurrer to rejoinder, and joinder in demurrer. As to the second, third, fifth and seventh pleas, there was, then, replication, rejoinder traversing the replication, and complete issue to the country. 5. The Court improperly overruled the defendant’s demurrer to plaintiff’s replication to defendant’s amended pleas two, three, four, five, seven, nine and eleven. The replication is double. The party is estopped by his covenants from setting up the defence contained in the replication. It is contradicting a deed by parol.
    In support of the second and third points, the plaintiff in error relies upon the following authorities: 11 Wendell, 425, 426; 4 Peters, 83 to 89 ; Comyn’s Digest, title, “ Estoppel,” (A 2) and at large; 1 Phillips’ Evidence, 547 to 549 ; 1 Starkie’s Ev., 294, 295; 1 Greenleaf’s Ev., secs. 22,23, 24; 17 Mass. 601; 9 Cowen, .752 to 755; 1 Johnson’s Chancery Rep., 428-430; 2 Brown’s Ch. Rep., 219; 1 Bro. Ch. Rep., 93, and note a, and cases there cited; 9 John., 307; 10 Wendell, 181 to 186; 1 McLean, 181, 182, 183; 8 Mass., 147, 148; 15 Pick., 66 to 70; 10 Conn., 431, 432; Cowen & Hill’s notes to Phillips’Evidence, 3 vol., 1430, 1431; 12 John., 429 ; 20 John., 50, 51; 3 Johnson’s Cases, 175, 177.
    Williams & Lawrence, for defendant in error:
    The sixth plea sets np a failure of consideration as to part of the note sued on, by averring a sale of the land for taxes. Inasmuch as a defence of this nature, to a suit brought on a promissory note by a grantor against his grantee, is permitted for the sake of avoiding circuity of action, a plea setting it up should contain the same averments that would be necessary in a declaration in covenant, founded on a breach of the covenants ‘in the deed. The covenants set up in this sixth plea, are of a right to convey, and that the land was free from incumbrances. A covenant of right to convey is the same as a covenant of seizin. 4 Mass., 631; 2 ibid, 437; 2 ibid, 408; Willard vs. Twitchell, 1 N. H., 177. The covenant, if broken at all, is broken as soon as it is made, like the covenant of seizin. The plea shows that the tax title accrued after the deed was made ; the time of redemption not having expired till after that time. The facts, therefore, alleged in the plea, admit a seizin at the time the covenant was made, and, therefore, a good right to convey. But it is contended that the plea shows a breach of the covenant against incumbrances, and this is the ground relied on. The plea does not aver a disturbance of the possession of the covenantee, nor that he has paid off the incumbrances. At best, therefore, it would only entitle the defendant to nominal damages, and is, therefore, bad as a plea of failure of consideration. The covenant against incumbrances, even if broken, only entitles the covenantee to nominal damages, until he has been evicted or paid off the incumbrance. Stanard vs. Eldridge, 16 Johns., 254; Delamyne vs. Norris, 7 Johns., 358; Prescott vs. Trueman, 4 Mass., 631; Deforest vs. Leete, 16 J. R., 122; Taft vs. Adams, 8 Pick., 547. The plea is, moreover, fatally defective in not showing that the sale of the land for taxes conveyed a title so as to constitute an incumbrance. It does not even aver a judgment and precept, or that the sale was legally or duly made. The presumption, therefore, on the face of the plea, is, that the sale of the land for taxes was void. Watson vs. Stucker, 5 Dana, 581. The replication is unquestionably good, as it avers that the tax title is held in trust for Furness, and is not, therefore, an outstanding incumbrance, and that Furness has remained in undisturbed possession of the premises. The replication to the second, third, fourth, fifth, seventh, ninth and eleventh pleas, shows that none of the covenants have been broken, and is therefore good. 1. It shows that the only outstanding claim of title was worthless. 2. It shows that this claim of title, such as it was, was vested in Furness, before the deed from Ramsey was delivered to and accepted by Furness, and that, therefore, even if it had been a good title, it would not have constituted a breach of any of the covenants. The replication further shows, that an abatement of the purchase money was made, to enable Furness to buy in this outstanding claim of title, and that he had already bought it in. The following cases are in point: Watts vs. Wellman, 2 N. H., 458; Fitch vs. Baldwin, 17 Johns., 166.
    A. Wheat, for plaintiff in error, in reply:
    The record shows three pleas, numbered five; the first alleging a want, and the other two a failure of consideration. To the first the plaintiff replied, by way of traverse, with a conclusion to the country. The plaintiff’s amended replication applied to but one of these pleas. If to the first, there is error, for the other two remained unanswered, and the judgment, instead of being for the plaintiff, should have been for the defendant, on them; and if to one of the latter, then, also, is there error; for there was no finding upon the issue formed by the original replication to the first plea numbered five—the only issue formed being that formed by the plea of non-assumpsit. It also appears from the record, that the same error occurred in relation to plea number eight. There were two pleas numbered eight; the first, like the first plea numbered five, alleged a want, and the latter, like the second and third pleas numbered five, a failure of consideration ; and on the first, issue was joined in the same way that it was on the first plea numbered five. No answer was filed to the latter. One, and but one, of these pleas was abandoned, and whichever of them it was, there is error in not properly disposing of the other.

      The record further shows, that the defendant, by leave of the Court, and which was given without qualification or terms imposed, filed a plea numbered ten, which was afterwards, on motion of the plaintiff, stricken from the files. In this there was error. The defendant having filed the plea by leave of the Court, it was as regularly on file, and a part of the record, as if it had been one of the original pleas. If it was substantially like some other plea, the Court, perhaps, might have compelled the defendant to elect which he would retain, and have ordered the other to be stricken from the files. But this plea was not like any of the rest.
    The objections taken to re-amended plea number six, are not good. The plea alleges that the premises were sold under and by virtue of the revenue laws, for taxes ; that they were not redeemed, and that thereby the title was lost. The Court will, of course, take notice of what these laws are, and, like the law, presume that the officers appointed to carry it into execution, performed their duty, until the contrary is made to appear. The authority cited, 5 Dana, 581, to show that the plea is not sufficiently particular, instead of sustaining the position taken by the other side, is a case in point to sustain the plea. The allegations of this plea are more full, certain, precise, and particular, than those of the bill in that case in which they were not questioned.
    It is not contended in this case by the plaintiff in error, that the warrant of a right to convey, or of seizin, is broken by a sale of the premises for taxes, previous to the conveyance, the title to which under the sale had not then matured. It is unnecessary for him to contend for the breach, and the only one assigned in the plea is of the covenant that the premises were free of incumbrance, and not of the covenant of seizin, as seems to have been supposed by the counsel for the defendant in error. This correction disposes of several authorities cited on the other side.
    It is further objected to this plea, that it contains no allegation that the defendant has been evicted, or that he has procured a discharge of the incumbrance, and several authorities are cited to sustain this position, none of which, however, do sustain it. They all show that the defendant being, as to this plea, in the attitude of plaintiff, would in such case, or without such allegation, have a right to recover nominal damages, at least. If the defendant was entitled to nominal damages, on the facts stated in his plea, then the plea is not bad. The objection is one to be made, on a question relative to the amount to be recovered, and not on one relative to the right to recover at all.
    If the grantee has not procured a discharge of the incumbrance existing at the time of his purchase, and no title has matured on that incumbrance, and he has not been disturbed in his possession, at the time of suit brought to recover damages, for a breach of the grantor’s covenant that the premises were free of incumbrance, he would, perhaps, be only entitled to recover only nominal damages. Rut whenever, at the time of suit brought to recover damages for the breach of such a covenant, he has procured a discharge of the incumbrance, or has1 been disturbed in his possession or enjoyment of the premises, by reason of it, or a title to the premises has matured upon it, he would unquestionably be entitled to recover all the damages he had sustained. Frisbie vs. Hoofnagle, 11 John., 50. And to the same effect are several of the authorities cited by the other side. This plea shows that, at the time of suit brought, a title had matured on. the sale made, previous to the conveyance. The replication to this plea is bad, unless it is the duty of a grantee to pay off or procure a release or discharge of an incumbrance existing upon the premises, at the time of his purchase, before he can maintain a suit against his grantor for a breach of a warrant against incumbrance. To show that such is not the law needs no reference to authorities. A bare glance at the effect and consequences of such a rule, must be sufficient to show that none such can exist. If the plea is true, and this is admitted by the replication, the covenant against incumbrance was broken the instant the deed was executed. The grantee then had a right of action against the grantor. How has that right ever been destroyed ? The replication does not pretend to show; but, on the contrary,, assumes that no such right ever existed. The Court, therefore, erred in overruling the demurrer to this replication. If, however, the plea is bad, still the Court erred in overruling the demurrer, for it should, in such case, have sustained it to the plea; and this is error that the defendant may assign, for by it he has been prejudiced.
    The Court erred in overruling the demurrer to the amended replication to pleas two, three, four, five, seven, nine and eleven. It is objected to some of these pleas, that they are to the whole declaration, which contains, besides a special count upon the note, the common counts, and that they are not good to the common counts. The pleas objected to do not state that they are to the declaration, and they all relate to the note declared oh in the first count. They will, therefore, be considered as pleas to the first count only. Holbrook vs. Vibbard, 2 Scam., 467.
    The replication seeks to avoid the covenants, by showing that the grantee was seized of the premises at the time.they were executed. This the grantor is estopped from doing, for his covenant is, that he was seized, and not that the grantee was seized. The replication, therefore, is no defence to the pleas. If it be true, however, that the grantee was seized of the premises at the time the covenant was executed, it is admitted that he would be entitled to recover only nominal damages. And for the purpose of preventing the recovery of any more, the grantor might show the grantee’s seizin at the trial.
   Opinion by Treat, C. J.:

This record is very voluminous, and numerous errors are assigned upon it; but on a careful examination, it is found to present but three questions for the consideration of the Court.

First. It is insisted that the Court proceeded to render final judgment for the plaintiff, without first disposing of an issue of fact formed on the fifth and eighth pleas. At an early stage of the case, the plaintiff filed a special replication to these pleas, concluding to the country, but the record fails to show that the defendant ever added a similiter. That was necessary to complete the issue. There was then no issue which the Court was bound to notice. The defendant in effect abandoned the pleas, by failing to join the issue tendered by the replication. The case of Waters vs. Simpson, 2 Gilman, 570, is precisely in point, and fully disposes of this question. Presumptions are often raised in favor of the judgments of the Circuit Courts. Thus, after a judgment on demurrer, a joinder in demurrer will be presumed; and after verdict, the want of a similiter will not vitiate the finding. But such presumptions are never indulged against a judgment. A party is not allowed to take advantage of his own errors and omissions.

Second. The declaration is on a promissory note, payable to Ramsey, and assigned to the plaintiff. The sixth re-amended plea is one of partial failure of consideration, and, after stating in substance that the note was made in consideration of the sale of a town lot, which Ramsey conveyed to the defendant, with covenants of good right to convey, and against incumbrances, proceeds to aver that a part of the lot, equal to three hundred and fifty dollars of the purchase money, had, at the time of the conveyance, “been sold, under and by virtue of the revenue laws of this state, to one Riddle, in the year 1844, for the taxes due thereon to the county and state aforesaid, for the year 1843, and that two years have elapsed since said sale of the same as aforesaid, and the same has not been redeemed, whereby the said portion of the said premises aforesaid became lost.” There was a special replication to this plea, to which a demurrer was overruled. It will not be necessary to advert to the replication, as the plea, in the opinion of the Court, is clearly bad on general demurrer. The defence relied on is a breach of the covenants contained in the deed, and in pleading it, the defendant is to be held to the same strictness as in declaring in an action brought directly on the covenants. On every principle of correct pleading, he is bound to set forth the proceedings under which the lot was sold, so that the Court can see that the covenant has been broken; or he must make the general averment that the sale was legally made, and the title thereby divested. In this plea, he does not pretend to set out the proceedings; nor does he make any allegations respecting their regularity and validity. He simply alleges that the lot had been sold under the revenue laws, without averring that the sale was duly made, or stating any facts showing that the title passed thereby to the purchaser.

Third. The defendant filed amended pleas two, three, four, five, seven, nine and eleven, all intended to present the same defence—a failure of consideration. The pleas state, in substance, that the note was given in consideration of the sale of a town lot, which Ramsey conveyed to the defendant with a covenant of seizin, and then aver generally that he was not seized. To these pleas the plaintiff filed the following replication: “ That heretofore, to wit, on the eighth day of November, A. D. 1843, the said Silas Ramsey was seized in fee simple of the said real estate, by title derived from Thomas Baxter, the patentee, by a regular chain of deeds, duly recorded in the county of Adams and state of Illinois; that Mary Ann Freeman, wife af Elam S. Freeman, claimed to have some title to said real estate, or a part thereof, derived from one James P. Rose, and which the the said James P. Rose had derived from one John Droullard, and which the said Droullard claimed under an alleged title from said Baxter, the patentee, which was not of record, and that this was the only conflicting claim of title to the said real estate; that on the 8th day of November aforesaid, the said Ramsey conveyed the said real estate to one Edward Mullen, by deed duly executed and acknowledged, and recorded on the next day, and the said Mullen executed to said Ramsey a mortgage on the said real estate for the purchase money, and acknowledged the same on the said 8th day of November, 1843, which was duly recorded on the 13th day of November, 1843 ; and that, on the 10th day of December, 1844, the said Edward Mullen sold and conveyed the said real estate to the said James E. Furness, by deed dated, acknowledged and recorded on that day, the mortgage on said property being unpaid and not released; that subsequently to these transactions, and about the 21st of April, 1845, the said James E. Furness contracted with the said Ramsey to purchase the said real estate from him, for the consideration of six hundred dollars, and the said Ramsey accordingly executed a deed to said Furness for said property, bearing date on the last mentioned day, and lodged it as an escrow in the hands of Wm. H. Ralston, to be delivered to said Furness on his compliance with the contract; that said Furness afterwards refused to comply with the terms of the purchase, because of the claim set up by said Mary Ann Freeman; that said Furness afterwards, to wit, on the 22d day of May, A. D. 1845, did purchase of said Mary Ann Freeman and her husband, Elam S. Freeman, their title to said real estate, and received their deed therefor, which was duly recorded on the 22d of October, 1845; that said Furness afterwards offered said Ramsey to complete the said purchase from him, if he, said Ramsey, would reduce the price to be paid for it by the deduction of one hundred and ninety dollars therefrom, which sum the said Furness ( concealing the fact that he had already purchased it) declared he would have to pay for the title of said Mary Ann Freeman; that afterwards the said Ramsey consented to this arrangement, and gave instructions accordingly to the said Wm. H. Ralston; that the said promissory note, bearing date the 25th day of May, A. D. 1845, was executed accordingly by the said James E. Furness to the said Ramsey, and on or about the 4th day of June, A. D. 1845, the said deed from the said Ramsey to the said Furness was delivered by the said Ralston to the said Furness, and accepted by him, and the said mortgage, from the said Mullen to the said Ramsey was duly released upon the record by the said Ralston, as attorney in fact for the said Ramsey; and so the plaintiff avers that the said Furness, at the time of the delivery and acceptance of the said deed from the said Ramsey, was in possession of the only other title or claim of title, that had ever been set up, inconsistent with the said Ramsey’s title; and was also the purchaser by deed from the said Mullen, to whom the said Ramsey had previously conveyed it, and from whom he had taken a mortgage as aforesaid; and he further avers, that, at the time aforesaid, there was no other title to the said property, except as stated in this replication, and that the said Furness, and those claiming under him, have never been disturbed in the possession of the same.”

The Court overruled a demurrer to this replication. In the opinion of the Court, the replication presents a good answer to the pleas. The pleas set up a breach of the covenant of seizin; and that covenant was broken, if at all, at the moment it was made. The replication shows that the only conflicting claim of title to the lot was in the defendant, at the time of the delivery of the deed, and that claim was, in fact, purchased in by him at the cost of Ramsey. It is attempted, therefore, on the part of the defendant, to establish a breach of the covenant, by proving that he was himself seized instead of his grantor. The law does not allow this to be done. The covenant of seizin only extends to a title existing in a third person, which may defeat the estate granted by the covenantor. It does not embrace a title that may already be in the grantee. The grantee is estopped from setting up the title previously acquired against his vendor. This precise question was decided in the case of Fitch vs. Baldwin, 17 Johnson, 161. The Court there say: It can never be permitted to a person, to accept a deed with covenants of seizin, and then turn round upon his grantor, and allege that his covenant is broken, for that, at the time he accepted the deed, he himself was seized of the premises. If there had been fraud in the case, and the plaintiffs could have shown that the testator had been induced by undue means, and in ignorance of his rights, to take a deed for his own land, there might be relief in a Court of Equity.” See also the case of Beebee vs. Swartwout, 3 Gilman, 182, where the same principle is recognized.

It is insisted that the replication sets up facts inconsistent with the deed, and therefore seeks to vary its terms. To this it may be replied, that the deed did not take effect until it was delivered by Ralston, and that before that time all of the transactions referred to in the replication were consummated. The true question is, was there any outstanding title in third persons, at the time the deed became operative, which could defeat the estate. The replication shows that such was not the case, and it is, therefore, a complete answer to the pleas.

The judgment of the Circuit Court must be affirmed, with costs.

Judgment affirmed.