Powers v. Caldwell

Bell, J. We are of opinion that the court below erred in refusing to permit the defendant Powers to introduce any evidence in support of his answer and amended answer. The answers would have been held insufficient upon special demurrer, because they do not allege with sufficient particularity what declarations or representations were made by the administrator in reference to the title, at the time of the sale of the land; nor does the plea allege with the necessary certainty wherein the title to the land is defective. This was an executory contract, and the same rules do not apply to the defence of failure of title in cases where the contract is executory, as apply in cases of executed contracts. The allegations of the plea now before us are vague and somewhat indefinite, but it is alleged that the administrator represented the title to be good. It is also alleged that the administrator made false and fraudulent representations in respect to the title at the time of the sale, and that the defendant was deceived thereby. It is further alleged that the title is defective, or, rather, wholly bad, and there is an allegation that the land still forms a part of the public domain. We are of opinion that these allegations constitute a good plea upon general demurrer, and that the party ought not to have been refused the right to introduce evidence in support of his plea. If the plea had been excepted to, the defendant would have had an opportunity to have amended his plea in such manner as to have cured its defects; whereas, upon the ruling of the court sustaining an objection to the introduction of evidence in support of the plea, the defendant was cut off from the opportunity to amend. This practice is one which we are not inclined [354] to favor, and to sanction which, the plea under which evidence is offered must be clearly bad on general demurrer. The judgment is reversed and the cause remanded for another trial. Reversed and remanded.