Daily Mississippi clarion and standard. [volume] (Jackson, Miss.) 1866-1866, 1866-06-05
DECISIONS OF THE HIGH COURT
OF
ERRORS AND APPEALS.
AT THE APRIL TERM, 1866


y, 100 as. OlFcull NOui0
Jas. T. Dozier. of Kinds Co.
Opinion of the Court delivered by
Justice Elicit.
The declarations in this case IS up
on a promisory note. The defendant
pleaded the general issue, and at a
subsequent term filed two special pleas
as pleas pals darsin continuance. The
first of these AYERS that the note sued
on was given in payment of land IN
Louisiana, and that prior to the max
ing of the note the plaintiff had execu-
ted bond, copy of which is filed
and prayed to be made a part OF the
plea, which instrument the defendant,
a nonresident of the State of Louis
lana, and ignorant of its laws, under
stood and supposed to be properly
drawn and executed in accordance
with the laws of said State; that after
the last continuance of this cause, he
ascertained that said instrument was
not executed or drawn in accordance
with the peculiar laws of said State, In
that it was not signed by both parties,
nor registered as is required by sad
laws, and is, therefore, void, and that
consequently the consideration OF said
note hal failed.
The second of said snecial pleas
merely AYERS that after the last contin-
uance the plaintiff refused to give pos
session of the said land to the defend
ant, although requested so to do, and
retains the same for his own benefit
and profit.
The agreement, called title bond, 4
| copy of which is filed with, and prayed
| to be taken as part of the first plea, is
in the ordinary form of bond for tt
tie, except that it is not sealed, and Do
zier thereby bound himself in penal
ty, by the first of February, the day of
the maturity of the note sued on, up
on the request of Lee, and payment OF
the purchase money, to convey the
land to the latter
The plaintiff demurred to both pleas
and the demurrer was sustained, where
upon jury was impanneled to try
the issue, and verdict and judgment
were given for the plaintiff.
Both these special pleas were bad
The first contained no matter tina
could be pleaded puiS darein contina
ance. The Office of such a plea is t.
set up matter of defence arising af
ter the last continuance, not one which
existing before, has just come to tn
knowledge Of the party. The fact
pleaded in this case were cOncurren
with the execution. of the agreement
and were necessarily within the know
5 edge of the defendant. But he allege
that he had only, since the last contir
uance, ascertained the law Of Louis
lana on the subject. That, however
does not alter the case The matter
relied on, that is, the want of his ow
signature to the contract, and the fai
D., ure to register it, are not facts that OF
G Cured after the last continuance, anC
o therefore, cannot be pleaded.
We have no idea that the plea state
correctly the law of Louisian
:, applicable to such case, c
that any court in our sistt
s State would hold tits agreement to |
e void between the parties for the reaso
II assigned. The cases cited serve to g
only to the extent, which command
our full approval, that where the agre
8 ment contains stipulations on bot
!, sides, and is obviously intended to
executed by both parties, the signatu
l. of one party will not be binding {
IS him, until the other party signs ais
Each party signs on the tacit cOnd
ton that all the other parties will sig
L. and that until the final assent is give
i there being no concurrence of diffe
IF ent minds, any one may retract. He
riot VS.. Broussard, 4Martin n. S., &c
Syndic of McManus VS.. levitt, 6 Lo
70 isiana R. (by Curry,) 530.) In Il
to present case the stipulations of Il
i two parties were contained in separa
instruments One signed the note
es the purchase money, and the other t
to agreement to convey when the mon
10 should be paid, and it could be ]
more essential that both should ST:
. the agreement for title, than that DO
IA should sign the note for the money.
- Furthermore the supposed defects q
p the omission of the defendant himse
~ and could at any time have been su
10 piled by him.
?" 1t is very clear that the promise
." pay the money and the agreement
IL convey the land, are mutual and {
e pendent agreements, and that Meth
n' party can compel performance by
- other, without first offering to perfol
" his own part. Before the defenda
could avail himself of the suppos
invalidity of the agreement as a {
~ fence to this action, he should ha
=, offered to pay the money, and demaI
~ ed a conveyance of the land. On t
NV other hand if the proper defence We
AS made, it is equally manifest that
ed plaintiff could not recover on the NJ
. against the defendant, without sho
ing previous tender of proper de
les conveying the land. and demand
ma the purchase money.
i' The second special plea does I
OF shew any thing in relation to the &C
Mt. sideration of the note or connect it
rts any way with any land, but only
- leges that since the last continuaI
the plaintiff 'has refused to give p
us session of the said land" not stat
ng what land or giving any reason W
possession ought to have been del
cred. Every plea must be correct 8
2, perfect in itself and must contain su
70. clenL matter to bar the action, and C
in not be made to depend on facts sta
=, in other pleas. Each plea must sts
or fall by itself and cannot be hell
ol by matter contained in another pl
we unless such matter is expressly rel
AIT red to Il Gritty, $685. Willis R
ba+ $50. 2 Johns 437 2Mass. s.
- So writings must be set forth by pr
en er averment in the plea, and accord
are to their legal effect and operation, :
pes it is not sufficient to set them forth
8. haze ver6a, much less to append th
to plea by way of exhibits. The
IAN ter is II mode of pleading adapted
ida proceedings in courts of chancery,
did finds no countenance in the simple
She and precision inculcated by the ri
her of the common law
But if this plea had contained Or
oes er averments that the note sued
was given for the purchase money
land, and had set out the agreem
usI for the title, it would still have b
q a fatally defective in not alleging
tender of the money at the time w
iar' the possession was demanded.
the The demurrer was therefore pro,
led, ly sustained to both, these pleas
an thereupon the Court ought to h
"a entered judgment of responded on
'''u' as required by the statute. .(F
GoIo-40E A T1AN !.