The weekly Panola star. [volume] (Panola, Miss.) 1857-1881, 1866-06-23
ArnIL ftaa. 1850

duHh -. lFr w. dNfHfs ' Hnflef
Error 10 the Circuit Court of IIinds
county.
oriSioN 10 rit cmH DELIVERED
nf JUSTICE EtLEfr.
The declaration In this ease 4 upon
pfomissofy note. The defendant
pleaded the general issue, and Al al
subsequent term fled two special
pleas as pvia darcia continuance.
The first Of these AYERS that the
note sued on was given In payment
Of land IN Louisiana, and that prior
TO the making Of the note the plain.
TIT had executed q bond, n copy of
which Is filed aud prayed to be made
q part Of the plea, which instrument
the defendant, a nonresident Of the
State Of Louisiana, aud ignnorant of
lis laws, understood and supposed to
be properly drawn aud executed in
accordance with the laws of said
State; that after the last continuance
Of this cause, he asccrtaincd that said
instrument was not executed or drawn
in accordance with the peculiar laws
Of said state, in that II was not signed
by both parties, nor registered as is
required by said laws, and is, there
fore, void, and that consequently the
consideration Of said note had failed.
The second of said special pleas
merely AYERS that after the last con-
tinuance the plaintiff refused TO give
possession of the said land TO the de-
iendant, although requested 80 to do,
and retains the same for his own ben
eft and profit.
The agreement, called title bond,
a copy of which is filed with, and
prayed TO be taken as a part Of the
first plea, is in the ordinary form Of
bond for title, except that it is not
sealed, and Dozier thereby bound
himself in a penalty, by the first of
February, the day Of the maturity of
the note sued on, upon 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 sus-
tanned, whereupon jury was en-
paneled to try the issue, and a ver-
dict and judgment were given for the
plaintiff.
Both these special pleas were
bad. The first contained no matter
that could be pleaded puis ddrein con-
tinuance. The Office Of such u plea
is to set up matter of defence, not
one which, existing before, has just
come to the knowledge of the party.
The facts pleaded in this case were
concurrent with the execution Of the
agreement, and were necessarily with
in the knowledge of the defendant.
But he alleges that he had only, since
the last continuance, ascertained the
law Of Louisiana ON the subject.
That, however, does not alter the
case. The matters relied on, that is,
the want Of his own signature to the
contract, and the failure to register it,
are not facts that occurred alter the
last continuance, and therefore can
not be pleaded.
We have no idea that the plea
states correctly the law Of Louisiana
applicable to such a case, or that any
court in our sister. State would hold
this agreement TO be void between
the parties for the reason assigned.
The cases cited serve to 20 only to
the extent, which commands our full
approval, that where the agreement
contains stipulations on both sides,
and Is obviously intended TO be exc
cuted by both parties, the signature
Of one party will not be binding on
him, until the other party signs also.
Each party signs on the tacit condi-
ton that all the other parties will
sign, and that until the final assent Is
given, there being no concurrence oi
different minds, any one may retract.
(Hcrriot vs.. Broussard, 4 Martin N.
s, 260. Sydnic Of McManus vs..
levitt, 8 Louisiana X. (by Curry.)
530.) In the present case the stipu-
lations Of the two parties were con-
tanned in separate instruments. One
signed the note for the purchase
money, and the other the agreement
10 convey when the money should b
paid, and Il could be no more essen
, tial that both should sign the agree,
ment for title, than that both shoulc
sign the note for the money. Fur
ihermor the supposed defects are th'
omission Of the defendant, himself
and could at any time have beei
supplied BY him.
II Is very clear that the promise =
pay the money and the agreement =
. convey the land, are mutual and de
pendent agreements, and that neithe
!, party can compel performance by III
: other, without first offering to per
!, form his own part. Before the dc
: fendant could avail himself Of th
Z supposed invalidity of the agreemen
!. asa defence to this action, he shoul
4 have offered TO pay the money, an
: demanded conveyance Of the lan'
On The o.her hand, II The proper 4
; ssncs were made, Il i equally man
a fest that the plaintiff could n
i rcover on the note against the defens
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