Powell v. Stowers

Peyton, C. J.: R. M. Stowers brought an action of debt in the circuit court of Panola county, against S. D. Powell, on a seated note, commonly called, a bill single. To this action the defendant, at the July term of said court, 1871, pleaded non-assumpsit' and payment, upon which issues were taken by the plaintiff. And at the March term, 18 72,- the defendant pleaded the following additional pleas, to wit: That the instrument of writing sued upon in this case was executed in part consideration of the purchase of a tract of land known as the whole of sec. 3, and N. E. of sec. 10, T. 9, R. 6 west, in said county of Panola, for which said plaintiff executed and delivered a certain bond to make a good and sufficient deed upon payment of the purchase money; that the whole of the purchase money [580] agreed to be paid for said land is and has been due for some time past, yet said plaintiff has never offered to perform his part of the contract by executing or offering or tendering to defendant a good and sufficient deed, or any deed at all, to said land. And for further plea, the said defendant says that the said instrument sued on was executed in part consideration of the purchase of the tract of land in said county of Panola, known as sec. 3 and the N. E. | of sec. 10, T. 9, R. 6 W. That, at the time of said purchase, said plaintiff executed and delivered to defendant his bond, to make defendant a good and valid deed, upon the payment of the purchase money. Defendant avers that, at the time of said trade, said plaintiff had not, nor has he now, any title to said land, so that he is not able to make defendant a good and valid deed or title to said land, and the consideration for which said note was given has failed. To these two last special pleas, the plaintiff filed a general demurrer, which was sustained by the court, and the defendant declining to plead over to the declaration, the cause was submitted to a jury upon the issues joined upon the two first pleas, who found a verdict for the plaintiff the sum of $1,221.30, upon which judgment was rendered. Hence the cause comes to this court by writ of error on the part of the defendant, who assigns for error the action of the court in sustaining the demurrer of the plaintiff to the two last pleas of the defendant. It is not averred, in either of said pleas, that the consideration money was due at the time of the institution of the suit. It has been held, that a covenant to pay a certain sum of money, one-half on a certain day, and the other half on a certain subsequent day, at which time the covenantor was to execute and deliver a deed, so far as respects the first payment, the covenant is independent, but as to. the other, it is dependent. And, [581] in an action for the recovery of the last instalment, the tender of the deed must be averred. And so in a declaration for the whole sum, after both installments have become due. Biddle v. Corgell, 3 Harrison, 377 ; Leonard v. Bates, 6 Black, 172 ; Robinson v. Harbour, ib. 802, 803. The record in this case shows that it was twelve months after the suit was brought when these additional pleas were filed. Although it may be true, as stated in the first of said pleas, that the whole of the purchase, money has been due for some time past, yet it may have become due since the commencement of the suit, and therefore would not constitute á good bar to the action. It is a maxim in pleading, that every thing shall be taken most strongly against the party pleading. That construction shall be adopted which is most favorable to the party pleading; because it is to be presumed that every person states his case as favorably to himself as possible. 1 Chitty Plead. 237. As these pleas were both defective, it follows that the court did not err in sustaining the demurrer to them. The judgment is affirmed.