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Feemster o. May.

Guion and Baine, for defendant in error. The defendant below is in possession of the land sold, and has been in its undisturbed possession since he bought it. The vendor has given a title-bond to the plaintiff in error to make him a title when the money shall be paid. Granting that the title of the defendant in error is defective, can any one undertake to say that he cannot perfect it by the time the vendee gets ready to pay the money? And if he could not, the vendee cannot keep the land and the money too. If he chooses to abandon the contract, and can compel a rescission of it, he must place his vendor where he found him. Glascock v. Horton, January Term, (October sitting) 1849, (ante, 85); Heath v. Newman, 11 S. & M. 201; Harris v. Bolton, 7 How. 167.

Mr. Justice Clayton delivered the opinion of the court.

This was a suit upon the last of a series of notes, given for the purchase-money upon the purchase of a tract of land. The vendor gave bond to make title upon payment of the purchasemoney, and put the vendee in possession. Upon the trial, the defendant introduced proof to show that the plaintiff had not a valid title to the land. He asked the court to instruct the jury, " that to entitle the plaintiff to recover, he must be able to make the defendant a good, clear, and sufficient title to the land in the title-bond mentioned.” This charge was refused.

It is certainly true, as argued by the counsel of the defendant in error, that a vendee who has been put in possession of land, and who has accepted a deed with covenants of general warranty of title, cannot defend a suit brought for the purchasemoney, upon the ground of failure of consideration from defect of title, until he is actually evicted. Heath v. Newman, 11 S. & M. 201; Dennis v. Heath, Ib. 206. But this rule does not apply where no deed has been executed, but only a bond given for title. In the latter case, the covenants are dependent, and the party cannot be forced to part with his money until the vendor is ready to make title.

We have decided, that it is not a compliance with a covenant to make "a good and perfect deed,” to make a deed good in

Commercial Bank of Manchester v. Kendall et al.

form only. The title must be good to satisfy the undertaking. Greenwood v. Ligon, 10 S. & M. 615. If the vendee in this case were to pay the purchase-money and sue on the title-bond, the vendor must show his title to be good, before he could be adjudged to have complied with his covenant. There is no reason why this should not be required in the present suit, so as to save the necessity of further litigation, and to guard the vendee against loss.

Where the vendee has accepted a deed, it is with an agreement, express or implied, that he will rely upon the covenants it contains; and he cannot resort to those covenants until there has been a breach.

For the error in refusing to give the instruction asked, the judgment will be reversed, and new trial awarded.

COMMERCIAL BANK OF MANCHESTER Us. William G. KENDALL ET AL.,

heirs at law of John L. Irwin, deceased.

A scire facias against the heirs at law is a proper remedy to subject the lands

of the ancestor descended to them, to the payment of an unsatisfied judge

ment against him. And it is no answer to such scire facias, that the ancestor's estate had been

declared insolvent; such declaration of insolvency does not affect or divest

the lien of a judgment rendered against the decedent in his life-time. In a scire facias to revive a judgment against the heirs at law of the defendant

in the judgment, it is not necessary for the plaintiff to set forth in the writ that the judgment had been enrolled ; that, if not done, and material to the

defence, should have been pleaded. Nor is it necessary, in the scire facias itself, to set forth a description of the

lands sought to be subjected to the judgment against the ancestor ; but such description should form part of the sheriff's return on the scire facias; his omission, however, to make such return, will not justify the quashal of the scire facias itself: the court should either have permitted an amendment of the return, or awarded another scire facias, with directions as to the service and return.

Commercial Bank of Manchester v. Kendall et al.

In error from the circuit court of Yalabusha county; Hon. Francis M. Rogers, judge.

On the 19th day of January, 1847, the Commercial Bank of Manchester sued out a scire facias in the following words, viz. : "State of Mississippi: To the Sheriff of Yalabusha county, Greeting.

"Whereas, by the consideration of the circuit court for the county and state aforesaid, the Commercial Bank of Manchester recovered, against William G. Kendall and John L. Irwin, the sum of three thousand six hundred and thirty-nine dollars and twenty cents damages, besides costs, and on the 14th day of November, 1840, as by the records, &c., appears, yet execution of the said judgment remains to be made; and whereas it is understood in the said court, on the part of the said plaintiff, that the said John L. Irwin is since deceased, to wit, &c., and died seised and possessed of divers lands, tenements, and hereditaments, and premises, as by the suggestion of the said plaintiff we have been given to understand, - we therefore command you, that by good and lawful men of your county you make known to William G. Kendall and [here the heirs' names are given) heirs at law of the said John I.. Irwin, deceased, that they be and appear before our next circuit court, &c., on, &c., at, &c., then and there to show cause, if any they can, why the judge ment and costs aforesaid should not be made of the lands and tenements of said John L. Irwin, deceased, if they see fit.

“Witness, &c.”

Duplicate writs issued to different counties, for the various heirs, and were returned simply "executed." At the August term, 1817, the defendants plead in substance that letters of administration, c. t. a., de bonis non, had been granted to Benjamin J. Hicks by the probate court of Warren county on the estate of John L. Irwin, and that court in 1842 had declared the estate insolvent. The plaintiff replied that the lands were not under the control of the administrator; to which the defendant demurred, and assigned as causes of demurrer, 1. That the replication did not answer the plea; and 2. That the scire facias was bad in not specifying the lands.

Commercial Bank of Manchester v. Kendall et al.

The court below sustained the demurrer and dismissed the scire facias, and the plaintiff sued out this writ of error.

Guion and Baine, for plaintiff in error,

Cited 7 How. 227; 6 Ib. 563; 2 Brok. 381 ; Steph. Pl. 85, p. 421, rule 11; Hutch. Code, 688, § 103.

N. G. and S. E. Nye, on same side,

Cited 6 S. & M. 333; 7 Ib. 404; Dye v. Barllett, 7 How. 224; 2 Saund. R. 72, n; Ib. 7, n. 4.

E. S. Fisher, for defendants in error,

Cited North on Probate, 154, 155, 156; Union Bank v. Meigs, 5 Ham. 312.

Mr. Justice Clayton delivered the opinion of the court.

This was a scire facias to revive a judgment obtained against the decedent in his life-time, against his heirs at law, upon a suggestion that lands had descended to them subject to the payment of said judgment.

The defendants appeared and pleaded to the scire facias, that administration with the will annexed had been granted of said decedent's estate, and that the same had afterwards been duly declared insolvent. To this plea, it was replied that the lands of the decedent were not under the control of the administrator, before the distribution thereof, and that they had not been accounted for by him. To this replication there was a demurrer, which was sustained by the court, and judgment rendered against the plaintiff.

It was decided in Smith et al. v. Winston et al., Executors of Kyle, 2 How. Rep. 601, that a scire facias is a proper remedy against the heirs at law, when there is an unsatisfied judgment against the decedent. It was also decided, in Dye v. Bartlett, 7 How. 224, that the insolvency of an estate does not affect or divest the lien of a judgment rendered against the decedent in his life-time. These authorities are decisive of the present case, and established the right of the plaintiff to have the scire

Aldridge v. Grider.

The

facias, notwithstanding the suggestion of insolvency. demurrer should have been extended to the plea, and that should have been held insufficient.

Some objections are urged to the scire facias itself, in this, that it does not show that the judgment had been enrolled, nor specify the lands sought to be charged. It was not necessary that it should have alleged, that the judgment had been enrolled; if that had not been done, and it was deemed material to the defence, it should have been pleaded.

As to the other objection, it appears but reasonable to require that the proceedings, in some stage, should point out the lands sought to be subjected. In England, it is not usual to set them out in the scire facias itself, but the sheriff returns the persons whom he summons as heirs or terre-tenants, together with a description of the lands or tenements held by them. Jefferson v. Morton, 2 Saund. 8; Tillinghast's Forms, 48; Bank of Georgetown v. Heirs of R. J. Meigs, 5 Ohio, Rep. 314. This description is not contained either in the process, or in the return of the sheriff in this case. We are disposed to adhere to the practice recognized by these authorities, and hence the return of the sheriff was insufficient to authorize a judgment against the heirs. But such insufficiency in the return does not justify the quashing of the process itself, and turning the party out of

court.

The sheriff, at the return term, might have been permitted to amend, or another scire facias might have been awarded, with directions as to the service and return.

As the court in this case went too far, the judgment is reversed, and the cause remanded for further proceedings.

WILSON M. ALDRIDGE vs. TOBIAS J. GRIDER, use of Samuel Moore.

To an action of assumpsit the defendant pleaded two defective pleas, to both of which the plaintiff replied; to the replication to one the defendant de

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