Gidley v. Gidley

SAYRE, J. [1] Plaintiff (appellee) sued defendant Gidley on a promissory note. In plea 7 defendant, in substance, set up that the consideration for which the note was given had failed, in that the same was given by defendant to plaintiff for the purchase of certain 40 acres of land-and plaintiff had no title and failed and refused to deliver possession of the land to defendant. This plea obviously was not subject to the demurrer which invoked the doctrine — we state it in its most general form — that th'e purchaser cannot resist an action at law on a note given for the purchase money so long as he remains in possession under the contract. Gillham v. Walker, 135 Ala. 459, 33 South. 537. It is not suggested in argument that any other of the assigned grounds of-demurrer were well taken. Prima facie, therefore, the trial court committed reversible error in sustaining the demurrer to this plea. And' this appellee seems to appreciate, for the burden of th'e argument advanced by her counsel goes to th'e proposition that the action of the court on plea 7 was error without injury. To state this contention more specifically in one of its aspects, appellee contends that under plea 6 defendant, had he gone to trial on the facts, would have had the full benefit of every particle of the evidence admissible under plea 7. Plea 6, which was not questioned by demurrer, alleged “that the note sued on is without consideration.” We think the contention should be sustained. Under plea 6, as framed, evidence would have been admissible to prove either an original total lack of consideration or a total failure of consideration. Under it defendant would have been permitted to prove the facts alleged in plea 7. There should be, therefore, no reversal for the ruling on demurrer. [2, 3] There was no error in sustaining the demurrers to pleas 8 and 9. On demurrer the pleas must be construed against the pleader, and, for aught appearing, .defendant was in possession of the land under an unreseinded contract of sale, and in no position to set up the defense that the title to th'e land, the consideration of the note in suit, had failed. Sivoly v. Scott, 56 Ala. 555. The allegation, in the eighth plea, that “plaintiff is [was] insolvent and could not be made to answer in damages for failure to deliver said land to the defendant,” was by no means the equivalent of an allegation that defendant was not in possession. Affirmed. ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.