Green v. McCarroll

Mr. Justice Fisher delivered the opinion of the court. This was an action in the circuit court of Madison county, against the plaintiff in error, founded upon his promissory note to the defendant. The record presents this question: the defendant in error, as administrator of Z. Banfield, deceased, in December, 1836, sold a tract of land, belonging to the intestate, at public sale, to one James H. Andrews, who failed to pay the purchase-money. This contract was, by consent of the parties, cancelled in 1838, and the land sold by the defendant in error and Andrews, and conveyed by a deed of general warranty to the plaintiff in error, who gave, to secure the purchase-money, the note in controversy. It is admitted that the sale to Andrews was made under an invalid order of the probate court, and the question is therefore presented, whether the case falls within the rule laid down by the court in the case of Duncan v. Lane, 8 S. &. M. 744. We are of opinion that it does. As to the question made upon the action of the court, in treating the plea to the bill of discovery as a nullity, we think the judgment correct. The plea presented a question proper to be made in the action at law, and presented no reason why the discovery should not be made. As to the judgment of the court in overruling the defendant’s demurrer to the plaintiff’s replication, we are of opinion that the defendant was not prejudiced thereby, as he could make the same defence under the general issue, which was pleaded. The pleas only amounted to the general issue, and were, therefore, bad on demurrer. Anderson et al. v. Patrick et al. 7 Howard, 346. Judgment affirmed.