Opinion by Treat, C. J.:
This record is very voluminous, and numerous errors are assigned upon it; but on a careful examination, it is found to present but three questions for the consideration of the Court.
First. It is insisted that the Court proceeded to render final judgment for the plaintiff, without first disposing of an issue of fact formed on the fifth and eighth pleas. At an early stage of the case, the plaintiff filed a special replication to these pleas, concluding to the country, but the record fails to show that the defendant ever added a similiter. That was necessary to complete the issue. There was then no issue which the Court was bound to notice. The defendant in effect abandoned the pleas, by failing to join the issue tendered by the replication. The case of Waters vs. Simpson, 2 Gilman, 570, is precisely in point, and fully disposes of this question. Presumptions are often raised in favor of the judgments of the Circuit Courts. Thus, after a judgment on demurrer, a joinder in demurrer will be presumed; and after verdict, the want of a similiter will not vitiate the finding. But such presumptions are never indulged against a judgment. A party is not allowed to take advantage of his own errors and omissions.
Second. The declaration is on a promissory note, payable to Ramsey, and assigned to the plaintiff. The sixth re-amended plea is one of partial failure of consideration, and, after stating in substance that the note was made in consideration of the sale of a town lot, which Ramsey conveyed to the defendant, with covenants of good right to convey, and against incumbrances, proceeds to aver that a part of the lot, equal to three hundred and fifty dollars of the purchase money, had, at the time of the conveyance, “been sold, under and by virtue of the revenue laws of this state, to one Riddle, in the year 1844, for the taxes due thereon to the county and state aforesaid, for the year 1843, and that two years have elapsed since said sale of the same as aforesaid, and the same has not been redeemed, whereby the said portion of the said premises aforesaid became lost.” There was a special replication to this plea, to which a demurrer was overruled. It will not be necessary to advert to the replication, as the plea, in the opinion of the Court, is clearly bad on general demurrer. The defence relied on is a breach of the covenants contained in the deed, and in pleading it, the defendant is to be held to the same strictness as in declaring in an action brought directly on the covenants. On every principle of correct pleading, he is bound to set forth the proceedings under which the lot was sold, so that the Court can see that the covenant has been broken; or he must make the general averment that the sale was legally made, and the title thereby divested. In this plea, he does not pretend to set out the proceedings; nor does he make any allegations respecting their regularity and validity. He simply alleges that the lot had been sold under the revenue laws, without averring that the sale was duly made, or stating any facts showing that the title passed thereby to the purchaser.
Third. The defendant filed amended pleas two, three, four, five, seven, nine and eleven, all intended to present the same defence—a failure of consideration. The pleas state, in substance, that the note was given in consideration of the sale of a town lot, which Ramsey conveyed to the defendant with a covenant of seizin, and then aver generally that he was not seized. To these pleas the plaintiff filed the following replication: “ That heretofore, to wit, on the eighth day of November, A. D. 1843, the said Silas Ramsey was seized in fee simple of the said real estate, by title derived from Thomas Baxter, the patentee, by a regular chain of deeds, duly recorded in the county of Adams and state of Illinois; that Mary Ann Freeman, wife af Elam S. Freeman, claimed to have some title to said real estate, or a part thereof, derived from one James P. Rose, and which the the said James P. Rose had derived from one John Droullard, and which the said Droullard claimed under an alleged title from said Baxter, the patentee, which was not of record, and that this was the only conflicting claim of title to the said real estate; that on the 8th day of November aforesaid, the said Ramsey conveyed the said real estate to one Edward Mullen, by deed duly executed and acknowledged, and recorded on the next day, and the said Mullen executed to said Ramsey a mortgage on the said real estate for the purchase money, and acknowledged the same on the said 8th day of November, 1843, which was duly recorded on the 13th day of November, 1843 ; and that, on the 10th day of December, 1844, the said Edward Mullen sold and conveyed the said real estate to the said James E. Furness, by deed dated, acknowledged and recorded on that day, the mortgage on said property being unpaid and not released; that subsequently to these transactions, and about the 21st of April, 1845, the said James E. Furness contracted with the said Ramsey to purchase the said real estate from him, for the consideration of six hundred dollars, and the said Ramsey accordingly executed a deed to said Furness for said property, bearing date on the last mentioned day, and lodged it as an escrow in the hands of Wm. H. Ralston, to be delivered to said Furness on his compliance with the contract; that said Furness afterwards refused to comply with the terms of the purchase, because of the claim set up by said Mary Ann Freeman; that said Furness afterwards, to wit, on the 22d day of May, A. D. 1845, did purchase of said Mary Ann Freeman and her husband, Elam S. Freeman, their title to said real estate, and received their deed therefor, which was duly recorded on the 22d of October, 1845; that said Furness afterwards offered said Ramsey to complete the said purchase from him, if he, said Ramsey, would reduce the price to be paid for it by the deduction of one hundred and ninety dollars therefrom, which sum the said Furness ( concealing the fact that he had already purchased it) declared he would have to pay for the title of said Mary Ann Freeman; that afterwards the said Ramsey consented to this arrangement, and gave instructions accordingly to the said Wm. H. Ralston; that the said promissory note, bearing date the 25th day of May, A. D. 1845, was executed accordingly by the said James E. Furness to the said Ramsey, and on or about the 4th day of June, A. D. 1845, the said deed from the said Ramsey to the said Furness was delivered by the said Ralston to the said Furness, and accepted by him, and the said mortgage, from the said Mullen to the said Ramsey was duly released upon the record by the said Ralston, as attorney in fact for the said Ramsey; and so the plaintiff avers that the said Furness, at the time of the delivery and acceptance of the said deed from the said Ramsey, was in possession of the only other title or claim of title, that had ever been set up, inconsistent with the said Ramsey’s title; and was also the purchaser by deed from the said Mullen, to whom the said Ramsey had previously conveyed it, and from whom he had taken a mortgage as aforesaid; and he further avers, that, at the time aforesaid, there was no other title to the said property, except as stated in this replication, and that the said Furness, and those claiming under him, have never been disturbed in the possession of the same.”
The Court overruled a demurrer to this replication. In the opinion of the Court, the replication presents a good answer to the pleas. The pleas set up a breach of the covenant of seizin; and that covenant was broken, if at all, at the moment it was made.
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Opinion by Treat, C. J.:
This record is very voluminous, and numerous errors are assigned upon it; but on a careful examination, it is found to present but three questions for the consideration of the Court.
First. It is insisted that the Court proceeded to render final judgment for the plaintiff, without first disposing of an issue of fact formed on the fifth and eighth pleas. At an early stage of the case, the plaintiff filed a special replication to these pleas, concluding to the country, but the record fails to show that the defendant ever added a similiter. That was necessary to complete the issue. There was then no issue which the Court was bound to notice. The defendant in effect abandoned the pleas, by failing to join the issue tendered by the replication. The case of Waters vs. Simpson, 2 Gilman, 570, is precisely in point, and fully disposes of this question. Presumptions are often raised in favor of the judgments of the Circuit Courts. Thus, after a judgment on demurrer, a joinder in demurrer will be presumed; and after verdict, the want of a similiter will not vitiate the finding. But such presumptions are never indulged against a judgment. A party is not allowed to take advantage of his own errors and omissions.
Second. The declaration is on a promissory note, payable to Ramsey, and assigned to the plaintiff. The sixth re-amended plea is one of partial failure of consideration, and, after stating in substance that the note was made in consideration of the sale of a town lot, which Ramsey conveyed to the defendant, with covenants of good right to convey, and against incumbrances, proceeds to aver that a part of the lot, equal to three hundred and fifty dollars of the purchase money, had, at the time of the conveyance, “been sold, under and by virtue of the revenue laws of this state, to one Riddle, in the year 1844, for the taxes due thereon to the county and state aforesaid, for the year 1843, and that two years have elapsed since said sale of the same as aforesaid, and the same has not been redeemed, whereby the said portion of the said premises aforesaid became lost.” There was a special replication to this plea, to which a demurrer was overruled. It will not be necessary to advert to the replication, as the plea, in the opinion of the Court, is clearly bad on general demurrer. The defence relied on is a breach of the covenants contained in the deed, and in pleading it, the defendant is to be held to the same strictness as in declaring in an action brought directly on the covenants. On every principle of correct pleading, he is bound to set forth the proceedings under which the lot was sold, so that the Court can see that the covenant has been broken; or he must make the general averment that the sale was legally made, and the title thereby divested. In this plea, he does not pretend to set out the proceedings; nor does he make any allegations respecting their regularity and validity. He simply alleges that the lot had been sold under the revenue laws, without averring that the sale was duly made, or stating any facts showing that the title passed thereby to the purchaser.
Third. The defendant filed amended pleas two, three, four, five, seven, nine and eleven, all intended to present the same defence—a failure of consideration. The pleas state, in substance, that the note was given in consideration of the sale of a town lot, which Ramsey conveyed to the defendant with a covenant of seizin, and then aver generally that he was not seized. To these pleas the plaintiff filed the following replication: “ That heretofore, to wit, on the eighth day of November, A. D. 1843, the said Silas Ramsey was seized in fee simple of the said real estate, by title derived from Thomas Baxter, the patentee, by a regular chain of deeds, duly recorded in the county of Adams and state of Illinois; that Mary Ann Freeman, wife af Elam S. Freeman, claimed to have some title to said real estate, or a part thereof, derived from one James P. Rose, and which the the said James P. Rose had derived from one John Droullard, and which the said Droullard claimed under an alleged title from said Baxter, the patentee, which was not of record, and that this was the only conflicting claim of title to the said real estate; that on the 8th day of November aforesaid, the said Ramsey conveyed the said real estate to one Edward Mullen, by deed duly executed and acknowledged, and recorded on the next day, and the said Mullen executed to said Ramsey a mortgage on the said real estate for the purchase money, and acknowledged the same on the said 8th day of November, 1843, which was duly recorded on the 13th day of November, 1843 ; and that, on the 10th day of December, 1844, the said Edward Mullen sold and conveyed the said real estate to the said James E. Furness, by deed dated, acknowledged and recorded on that day, the mortgage on said property being unpaid and not released; that subsequently to these transactions, and about the 21st of April, 1845, the said James E. Furness contracted with the said Ramsey to purchase the said real estate from him, for the consideration of six hundred dollars, and the said Ramsey accordingly executed a deed to said Furness for said property, bearing date on the last mentioned day, and lodged it as an escrow in the hands of Wm. H. Ralston, to be delivered to said Furness on his compliance with the contract; that said Furness afterwards refused to comply with the terms of the purchase, because of the claim set up by said Mary Ann Freeman; that said Furness afterwards, to wit, on the 22d day of May, A. D. 1845, did purchase of said Mary Ann Freeman and her husband, Elam S. Freeman, their title to said real estate, and received their deed therefor, which was duly recorded on the 22d of October, 1845; that said Furness afterwards offered said Ramsey to complete the said purchase from him, if he, said Ramsey, would reduce the price to be paid for it by the deduction of one hundred and ninety dollars therefrom, which sum the said Furness ( concealing the fact that he had already purchased it) declared he would have to pay for the title of said Mary Ann Freeman; that afterwards the said Ramsey consented to this arrangement, and gave instructions accordingly to the said Wm. H. Ralston; that the said promissory note, bearing date the 25th day of May, A. D. 1845, was executed accordingly by the said James E. Furness to the said Ramsey, and on or about the 4th day of June, A. D. 1845, the said deed from the said Ramsey to the said Furness was delivered by the said Ralston to the said Furness, and accepted by him, and the said mortgage, from the said Mullen to the said Ramsey was duly released upon the record by the said Ralston, as attorney in fact for the said Ramsey; and so the plaintiff avers that the said Furness, at the time of the delivery and acceptance of the said deed from the said Ramsey, was in possession of the only other title or claim of title, that had ever been set up, inconsistent with the said Ramsey’s title; and was also the purchaser by deed from the said Mullen, to whom the said Ramsey had previously conveyed it, and from whom he had taken a mortgage as aforesaid; and he further avers, that, at the time aforesaid, there was no other title to the said property, except as stated in this replication, and that the said Furness, and those claiming under him, have never been disturbed in the possession of the same.”
The Court overruled a demurrer to this replication. In the opinion of the Court, the replication presents a good answer to the pleas. The pleas set up a breach of the covenant of seizin; and that covenant was broken, if at all, at the moment it was made. The replication shows that the only conflicting claim of title to the lot was in the defendant, at the time of the delivery of the deed, and that claim was, in fact, purchased in by him at the cost of Ramsey. It is attempted, therefore, on the part of the defendant, to establish a breach of the covenant, by proving that he was himself seized instead of his grantor. The law does not allow this to be done. The covenant of seizin only extends to a title existing in a third person, which may defeat the estate granted by the covenantor. It does not embrace a title that may already be in the grantee. The grantee is estopped from setting up the title previously acquired against his vendor. This precise question was decided in the case of Fitch vs. Baldwin, 17 Johnson, 161. The Court there say: “ It can never be permitted to a person, to accept a deed with covenants of seizin, and then turn round upon his grantor, and allege that his covenant is broken, for that, at the time he accepted the deed, he himself was seized of the premises. If there had been fraud in the case, and the plaintiffs could have shown that the testator had been induced by undue means, and in ignorance of his rights, to take a deed for his own land, there might be relief in a Court of Equity.” See also the case of Beebee vs. Swartwout, 3 Gilman, 182, where the same principle is recognized.
It is insisted that the replication sets up facts inconsistent with the deed, and therefore seeks to vary its terms. To this it may be replied, that the deed did not take effect until it was delivered by Ralston, and that before that time all of the transactions referred to in the replication were consummated. The true question is, was there any outstanding title in third persons, at the time the deed became operative, which could defeat the estate. The replication shows that such was not the case, and it is, therefore, a complete answer to the pleas.
The judgment of the Circuit Court must be affirmed, with costs.
Judgment affirmed.