Mr. Chief Justice Hemphill
delivered the opinion of the court, Mr. Justice "Wheeler not sitting.
This action was instituted on a promissory note executed by the defendant’s intestate, and the defense was, a failure of consideration. That the note had been given for the purchase money of a tract of land, the title of the plaintiff to which was intrinsically wholly defective, and that there was also a paramount outstanding title in third persons. The verdict being found for appellee, an appeal was taken to this court.
Several questions of considerable interest and importance are suggested by various decisions of the court below in the progress of the cause. These points we will examine to some [147]*147extent, though the case is in such an attitude that whatever may be our opinion upon these questions, yet the cause must necessarily be sent down for a new trial, on the ground that the verdict of the jury is without and contrary to evidence.
We see no error in the ruling of the court admitting the note in evidence without proof of the signature. The act on the subject of the plea of non est factum, 3 vol. p. 115, was designed to facilitate the recovery on written instruments, and its purpose would, to a considerable extent, be defeated if the representatives of deceased parties were exempted from its operation. Prom the comprehensiveness of its terms and its evident spirit, it would seem to embrace all cases where the action is founded on an instrument of writing, whether the defendant represents his own or the interest of a person deceased.
The representative of a succession could not be required to swear in the same positive terms with one charged in his own right, and his affidavit to the best of his knowledge and belief should be regarded as a sufficient compliance with the statute.
The grounds of the objection, which was overruled, to the admission of any evidence in support of the defense, are not stated. They were certainly without proper foundation. The answer had averred the total failure of the consideration of the note; the warranties of the conveyance; the worthlessness of the plaintiff’s title; his insolvency and absence from the country; and the impossibility of obtaining redress on the covenants in the deed.
"Whether, upon these allegations alone, the purchaser would have been entitled in this action for the purchase money, to introduce evidence in support of his defense, or to have proven the existence of a paramount title in third persons, it is not necessary to express any opinion. If the warranties in the deed be regarded as equivalent to a covenant of seizin in the plaintiff, numerous authorities might be adduced to show that a vendee, not being in possession of the land, may, before eviction, prove the failure of the plaintiff’s title, as a valid defense in an action for the recovery of the price of the land. Hardin v. Titus, Dall. Dig. p. 622; 1 Bay, 278, 326; 2 id. [148]*148558, 2 N. & McC. 186, 189; 2 Const. 159; Harper, 232; 1 Bailey, 217-50-59; 1 Serg. & Rawle, 5 id. p. 204.
If doubt exist as to the admissibility of the defense in the -original state of the pleadings, this was removed by the amendments, in which the defendant’s nonclaim, to the land was averred, and protest was made of the deed for cancellation, or other proper disposition by the court. All the powers appertaining to the chancery jurisdiction could now, if not on the original answer, be exerted for the settlement of the whole matter in controversy, and for the enforcement of mutual justice between the par’ties. On what ground, then, could proof of the defense set up in the answer be refused? It may possibly have been on the ground (and this supposition receives some countenance from the argument of the appellant in this court) that the defendant had not been judicially ejected from the premises, and that until eviction the defense was unavailable. But why should the defendant be postponed until actual eviction, when redress would very frequently be hopeless?
"Where the vendor has impliedly or expressly warranted his authority to sell, and it appear afterwards that his title is intrins-'cally defective, or there is sufficient evidence of a valid -subsisting outstanding title in others, it would operate great Injustice to compel the purchaser to pay the purchase money; and then after final eviction consequent on a harassing litigation of the title, to institute a new action on the covenants of the conveyance against the vendor, then perhaps bankrupt, and who in this instance is, as appears from the -evidence, already insolvent. The vendee must, by competent and sufficient evidence, establish the existence and validity of the outstanding title; but when that is done, there is no reason why his remedy should be delayed until disturbed in the enjoyment of the land, and this even when the defendant is in possession, for the court has authority adequate to the adjustment of all the matters arising out of the controversy between the parties.
We cannot pass altogether without notice the ruling of the -court that the evidence was insufficient to establish the fact [149]*149that the grantee named in the deed was the wife of the defendant’s intestate. It is true that on a future trial, additional evidence might establish the point more satisfactorily, but we are of the impression that the evidence adduced was such as would have authorized the reading of the deed to the jury.
The facts to be ascertained were, whether Thomas H. Poage was a married man, and whether his wife’s name was Nancy. These being ascertained, the'jury could, from all the circumstances, determine whether Nancy A. Poage, named in the deed, was the wife of the intestate or not. For the purposes of this suit the marriage was susceptible of proof by evidence of cohabitation, reputation, acknowledgment of parties, reception in the family, and other circumstances from which an inference of marriage could be drawn. Phill. on Ev. Gow. & Hill’s notes, 4 Bur. 2057; 4 Johns. 54; 18 id. 346; 1 Nott. & McO. 287; 2 id. 114-15. .
The reputation of Poage’s being a married man was general in the community where he lived. One of the witnesses testifies that he thought this reputation may have arisen from the deceased’s own representation. This is not affirmed positively; and another proves that he had heard from persons acquainted with Poage and his wife in Kentucky that her name was Nancy. The reputation may have arisen from the representation of others, as well as his own.
But there can be no objection to his own acknowledgment of his being a married man, and of the name of his wife. No interest or unworthy motives can be attributed to him in making such declarations. All the circumstances under which they were made strengthen the presumption of their truth, and no possible conceivable advantage could grow out of his acknowledgment of these facts. The reputation was general at the time of making the deed, and the obvious conclusion is, that the plaintiff intended to convey to the wife of the deceased intestate.
"We do not positively decide, however, whether the deed should have been received as having been made to the wife of the deceased. It is our impression from the slight examination we have bestowed on the point, that there was sufficient evi[150-151]
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Mr. Chief Justice Hemphill
delivered the opinion of the court, Mr. Justice "Wheeler not sitting.
This action was instituted on a promissory note executed by the defendant’s intestate, and the defense was, a failure of consideration. That the note had been given for the purchase money of a tract of land, the title of the plaintiff to which was intrinsically wholly defective, and that there was also a paramount outstanding title in third persons. The verdict being found for appellee, an appeal was taken to this court.
Several questions of considerable interest and importance are suggested by various decisions of the court below in the progress of the cause. These points we will examine to some [147]*147extent, though the case is in such an attitude that whatever may be our opinion upon these questions, yet the cause must necessarily be sent down for a new trial, on the ground that the verdict of the jury is without and contrary to evidence.
We see no error in the ruling of the court admitting the note in evidence without proof of the signature. The act on the subject of the plea of non est factum, 3 vol. p. 115, was designed to facilitate the recovery on written instruments, and its purpose would, to a considerable extent, be defeated if the representatives of deceased parties were exempted from its operation. Prom the comprehensiveness of its terms and its evident spirit, it would seem to embrace all cases where the action is founded on an instrument of writing, whether the defendant represents his own or the interest of a person deceased.
The representative of a succession could not be required to swear in the same positive terms with one charged in his own right, and his affidavit to the best of his knowledge and belief should be regarded as a sufficient compliance with the statute.
The grounds of the objection, which was overruled, to the admission of any evidence in support of the defense, are not stated. They were certainly without proper foundation. The answer had averred the total failure of the consideration of the note; the warranties of the conveyance; the worthlessness of the plaintiff’s title; his insolvency and absence from the country; and the impossibility of obtaining redress on the covenants in the deed.
"Whether, upon these allegations alone, the purchaser would have been entitled in this action for the purchase money, to introduce evidence in support of his defense, or to have proven the existence of a paramount title in third persons, it is not necessary to express any opinion. If the warranties in the deed be regarded as equivalent to a covenant of seizin in the plaintiff, numerous authorities might be adduced to show that a vendee, not being in possession of the land, may, before eviction, prove the failure of the plaintiff’s title, as a valid defense in an action for the recovery of the price of the land. Hardin v. Titus, Dall. Dig. p. 622; 1 Bay, 278, 326; 2 id. [148]*148558, 2 N. & McC. 186, 189; 2 Const. 159; Harper, 232; 1 Bailey, 217-50-59; 1 Serg. & Rawle, 5 id. p. 204.
If doubt exist as to the admissibility of the defense in the -original state of the pleadings, this was removed by the amendments, in which the defendant’s nonclaim, to the land was averred, and protest was made of the deed for cancellation, or other proper disposition by the court. All the powers appertaining to the chancery jurisdiction could now, if not on the original answer, be exerted for the settlement of the whole matter in controversy, and for the enforcement of mutual justice between the par’ties. On what ground, then, could proof of the defense set up in the answer be refused? It may possibly have been on the ground (and this supposition receives some countenance from the argument of the appellant in this court) that the defendant had not been judicially ejected from the premises, and that until eviction the defense was unavailable. But why should the defendant be postponed until actual eviction, when redress would very frequently be hopeless?
"Where the vendor has impliedly or expressly warranted his authority to sell, and it appear afterwards that his title is intrins-'cally defective, or there is sufficient evidence of a valid -subsisting outstanding title in others, it would operate great Injustice to compel the purchaser to pay the purchase money; and then after final eviction consequent on a harassing litigation of the title, to institute a new action on the covenants of the conveyance against the vendor, then perhaps bankrupt, and who in this instance is, as appears from the -evidence, already insolvent. The vendee must, by competent and sufficient evidence, establish the existence and validity of the outstanding title; but when that is done, there is no reason why his remedy should be delayed until disturbed in the enjoyment of the land, and this even when the defendant is in possession, for the court has authority adequate to the adjustment of all the matters arising out of the controversy between the parties.
We cannot pass altogether without notice the ruling of the -court that the evidence was insufficient to establish the fact [149]*149that the grantee named in the deed was the wife of the defendant’s intestate. It is true that on a future trial, additional evidence might establish the point more satisfactorily, but we are of the impression that the evidence adduced was such as would have authorized the reading of the deed to the jury.
The facts to be ascertained were, whether Thomas H. Poage was a married man, and whether his wife’s name was Nancy. These being ascertained, the'jury could, from all the circumstances, determine whether Nancy A. Poage, named in the deed, was the wife of the intestate or not. For the purposes of this suit the marriage was susceptible of proof by evidence of cohabitation, reputation, acknowledgment of parties, reception in the family, and other circumstances from which an inference of marriage could be drawn. Phill. on Ev. Gow. & Hill’s notes, 4 Bur. 2057; 4 Johns. 54; 18 id. 346; 1 Nott. & McO. 287; 2 id. 114-15. .
The reputation of Poage’s being a married man was general in the community where he lived. One of the witnesses testifies that he thought this reputation may have arisen from the deceased’s own representation. This is not affirmed positively; and another proves that he had heard from persons acquainted with Poage and his wife in Kentucky that her name was Nancy. The reputation may have arisen from the representation of others, as well as his own.
But there can be no objection to his own acknowledgment of his being a married man, and of the name of his wife. No interest or unworthy motives can be attributed to him in making such declarations. All the circumstances under which they were made strengthen the presumption of their truth, and no possible conceivable advantage could grow out of his acknowledgment of these facts. The reputation was general at the time of making the deed, and the obvious conclusion is, that the plaintiff intended to convey to the wife of the deceased intestate.
"We do not positively decide, however, whether the deed should have been received as having been made to the wife of the deceased. It is our impression from the slight examination we have bestowed on the point, that there was sufficient evi[150-151]*150-151dence to have permitted the fact of marriage and the name of the wife to have gone with the other facts to the jury; but we forbear the expression of any positive opinion, without some argument and further elucidation of the subject.
The court subsequently overruled a motion of the defendant to strike the words “the wife of Thomas H. Poage” out of the answer, and then to offer the deed in evidence to the jury. "We have been referred to no authorities by either party for or against this decision, but as the point may be presented on a future trial, we deem it expedient to express an opinion on the question of its correctness; an opinion which will not, however, be entirely conclusive, should the point be again presented for consideration.
The defendant being taken by surprise by the rejection of the deed when offered, as having been made to the wife of the deceased, we see no ground under the then existing laws which would have prevented the making of the amendment attempted by the defendant, and the subsequent introduction of the deed as having been made to a stranger. In the same cause the petition had been amended after the commencement of the trial. And if the Nancy A. Poage named in the deed be neither the wife nor child of the purchaser, she must, from all the circumstances as they appear in the record, be regarded simply as his -trustee and holding the land for his use and benefit. It is a well established principle of law, that where the consideration money is paid by one, and the deed taken in the name of another, yet a resulting trust arises in favor of the former, and the latter shall hold the thing purchased for his use and benefit. This doctrine, according to Mr. Justice Story, has its “ origin in the natural presumption, in the absence of all rebutting circumstances, that he who supplies the money means the purchase to be for his own benefit, rather than that of another, and that the conveyance in the name of another is a matter of arrangement and convenience between the parties for collateral purposes.” 2 Story’s Eq. pp, 551-2; Jennings’ Eq. Jur. p. 85; 1 Ves. 275; 10 id. 360; 15 id. 350.
The purchase by the defendant’s intestate having been made for himself (at least all evidence to the contrary being ex-[152]*152eluded), we are informed of no principle of law which would, the answer being amended, have prevented the cestui que trust, the real owner of the property, for whose use it was purchased and from whose funds payment is now sought, from availing himself of the defense set up in the answer.
■ The courts, under our system of jurisprudence for the speedy attainment of justice and the adjudication of controverted rights, are required to try causes by the principles of law or equity, or both, and defenses available in equity can be set up in all actions as a matter of right. In this cause the answer had invoked the exercise of chancery powers in offering the deed for cancellation, and thus removing all pretense of the continued responsibility of the warrantor on the covenants of the deed.
The grantee named, being neither the wife nor child of the purchaser, and coming within none of the exceptions of the general rule, the real intent was in the purchaser himself, and it would be contrary to the first principles of reason and justice, that he should be prevented from protecting this interest when attacked, especially when he offers full equity to the other party, and to save him from all liability growing out of the transaction.
We have barely glanced at this point. To discuss all the questions arising out of the various phases which this conveyance might assume would require a laborious investigation; nor do we pretend to discuss fully the doctrines involved under its natural aspect, viz.: that of a grant to one with the use, benefit and trust resulting to another.
We are of opinion that the court erred in rejecting the amendment, and that the deed when last offered should have been received and read to the jury.
The principal question, which in the present state of the record is before us for positive adjudication, is, whether there was any evidence before the jury which justified their finding a verdict for the defendant.
On examination of the record, it appeal’s that all attempts on the part of the defendant to introduce what was regarded by him as sufficient proof of his defense were overruled, and [153]*153the effect being to exclude essential evidence, without which, the verdict cannot be supported, the same must be set aside and the canse remanded for a new trial.
The grounds upon which the jury acted are not material to be considered, for whether their motives were praiseworthy or otherwise, whether founded on their own knowledge of want of "consideration or on any other circumstance or inducement extraneous to the evidence before them, yet juries in their action must confine themselves to their proper position, and the rights of parties determined, not capriciously, but according to the established rules of law and evidence. The objection to the verdict is fatal, and the judgment must therefore be reversed. It is urged by the appellee that an objection of this character is now inadmissible, not having been made on a motion for a new trial in the court below.
That such would have been the correct practice has been in more than one case decided by the former supreme court, viz.: Herbert v. The Republic, decided at the December term, 1845; and in the case of Foster and Foster v. Smith, at the last term, it was laid down as a positive rule, that “no judgment ought to be reversed merely on the ground that the verdict was not supported by the testimony, unless a motion had been made in the court where the verdict was rendered for a new trial and overruled, and then the evidence and the ground on which the motion had been made should be spread on the record, and that the rule should be applied to all cases to be subsequently decided.” This appeal was taken before the adoption of the above as an imperative rule of practice, and will not, therefore, be subjected to its operation. It is one which will be observed in all future cases to which it is applicable; and it is adverted to as well in answer to the appellee as to impress it again on the attention of all whose interests may be affected by its enforcement.
The judgment of the court below is reversed and a new trial is ordered.