#### Vincent and Bertrand, Appellants, v. Samuel Morrison, Appellee.

APPEAL FROM ST. CLAIR.

A special verdict must find facts, not the evidence of facts.

In a sale of land, where there is no fraud, and the vendee has taken a deed with covenants, the same will be considered a sufficient consideration for notes executed for the purchase money of said land.

In relation to covenants, the general rule is, that an administrator has no power to charge the effects of his intestate by any contract originating with himself, and his contracts, in the course of his administration, or for the debts of his intestate, render him liable de bonis propriis.

Opinion of the Court by

Justice Lockwood.

This is an. action of debt on a sealed note, brought by Morrison in the St. Clair circuit court, to recover the sum of $466. The defendants pleaded four several pleas, to which the plaintiff below demurred; and the court decided that all the pleas were insufficient, and thereupon the following order was entered, to wit: “On motion of defendant’s attorney, leave is given to plead on the third Monday of July next, and the cause continued to next term;” at said term, defendants filed four new pleas, which were severally traversed, and issues joined. On the trial, a special verdict was taken, comprising the facts relied on by defendants to bar the action. On the special verdict, the court below rendered judgment for Morrison, and the cause is brought into this court by appeal. A number of errors have been assigned, but the court do not deem it necessary to examine them all in detail. In relation to the first set of pleas, they are of opinion that by the motion to plead generally, they were abandoned, and can not be relied on as subsisting defenses to the action. The second set of pleas, being all traversed, the special verdict presents all the questions that the court are called on to decide.

In order to enable the defendants below to get at their defense, it was necessary for them to prove in what the consideration of the note consisted; all we find in the special verdict on that point, is as follows : “We further find, that on the 4th day of October, 1821, the said S. Morrison and Olive Morrison executed the deed of conveyance for the houáe and lot, to the said Michael Vincent, set forth in the third plea of the said defendants, and that the same was delivered to him, and he accepted it, and that the said note or writing obligatory was made to the said Samuel at the same time, and that they are in the handwriting of the said *228John Hay.” In relation to special verdicts, it is a general rule that they must find facts, and not merely the evidence of facts. Jac. Law Dict., Title “Verdict.” (1) In this verdict, there is no evidence whatever that the note was executed as the consideration for the deed. It is true that facts are stated, that possibly might have authorized the jury to have presumed the note was given, as the consideration for the deed. But as the jury have not found the fact, it would probably be a stretch of power in the court, if they should conceive the deed and note executed in consideration of each other. As the special verdict is defective, it would perhaps be the duty of the court to send back the case to the circuit court, with directions either to amend the special verdict, if it could be done, or award a venire de novo. Yet as the court, upon an inspection of the whole verdict, are satisfied that plaintiff below is entitled to recover, admitting the fact to exist, that the note was executed in consideration of the execution of the deed mentioned in the pleadings, sending back the case would only be attended with costs, without any benefit to the parties.

The special verdict does not find that Morrison and wife were guilty of any fraud in the sale to Vincent, and the law will not impute fraud to them. In the case of Abbot v. Allen executor of Allen, 2 Johns. Chan. Cases, 159, it was decided by the court of chancery, that “ a purchaser of land, who had paid part of the purchase money, and given a bond and mortgage for the residue, and is in the undisturbed possession, will not be relieved against the payment of the bond, or proceedings on the mortgage, on the mere ground of a defect of title; there being no allegation of fraud in the sale, nor any eviction, but must seek his remedy at law, on the covenants in his deed.” The same point is also decided in the case of N. J. & S. Bumpas v. Platner, Bay and Underwood, 1 Johns. Ch. Cases, 213. In the case under consideration, th'e verdict finds that one of the defendants received a deed from Morrison and wife, which contains a variety of covenants—that Vincent entered into possession of the house and lot, conveyed by said deed, and has continued to live in it *229ever since, and still is in the possession of the same. Upon the principle decided in the above cited cases, even a court of equity would not relieve, although the title was defective. The party having thought proper to take covenants to secure his title, he must resort to them in the first instance. (2) It *230was, however, urged on the argument, that the covenants contained in the deed, were not personal covenants, but covenants in the character of agents. In order to ascertain how far it was the intention of Morrison to bind himself by"this deed, it will be necessary to examine the deed itself for the terms of the covenants. By the deed, Morrison and wife, in the capacity of administrators, covenant that the intestate died seized; that said Olive Morrison, administratrix, was duly licensed to make sale of the premises; that it was necessary to sell the same for the purpose of paying the debts of the intestate; that previous to the sale, she took the oath prescribed by law; that she gave public notice in the newspaper printed at Edwardsville, according to the directions of the law in such case made and provided, and of the court; and that one Frangois Olivier Valois offered the most for said premises, which were struck off to him for the sum of four hundred and sixty-six dollars. They also further covenant in their said capacity, that the premises are free from incumbrance, and that they will warrant and defend the same forever, against the claim or demands of all persons in law and equity, and Morrison and wife sign and seal the deed, without the addition of their representative character. Under these covenants, it was urged, that Morrison was not person*231ally liable, but that the assets of the intestate were the only fund which could be reached to pay any damages that might arise from the breach of the covenants in the deed. > That the assets of the intestate can not be bound to answer a breach of the most of these covenants, is apparent from the nature of the covenants. Most of these covenants are, that the administratrix has done her duty as administratrix. If an administrator, in the course of his administration, is guilty of any improper conduct, the estate is not answerable for such malfeasance. In relation to covenants, the general rule is, that an administrator has no power to charge the effects of the intestate, by any contract originating with himself; and it seems from the current of decisions, that his contracts, in the course of his administration, or for the debts of his intestate, render him liable de bonis propriis. The whole doctrine relating to the liability of administrators, covenanting in their capacity of administrators in the sale of real estate, was very elaborately discussed by the supreme judicial court of Massachusetts, in the case of Sumner, administrator v. Williams and Williams, 8 Mass. Rep., 162. In that case, the administrators, in their capacity of administrators, covenanted that, as administrators, they were lawfully seized of the premises; that they were clear of all incumbrances, &c.; that they, in their said capacity, had good right to sell, &c., and that as administrators, they would warrant and defend the premises, and then signed and sealed the deed as administrators. The court held the administrators personally liable for a breach of these covenants. It is to be remarked, that a very material difference exists between the case in Massachusetts, and the one before this court, in this, that in the case in Massachusetts, there Avere no covenants that the administrators had proceeded in all respects according to the directions of the statute which, as the court has before observed, must from their very nature, be personal covenants. The court infer from the pleadings and verdict, that the gist of the defense to the action below, consists either in the fraud of the plaintiff, or a breach of the covenants— on the part of Morrison and wife, that she had proceeded according to law in making sale of the premises mentioned in the deed. In conclusion, therefore, the court are of opinion first, that there was a good consideration for the note, to wit: the deed with covenants; second, that there has been no failure of the consideration, because Vincent received the possession of the premises contracted for, and has remained in the quiet possession thereof, until the trial of the cause; third, that the verdict does not find that any fraud was prac*232ticed on the defendants; and lastly, if there has been any breach of any of the covenants mentioned in the deed, it is no bar to this action, but the party must resort to his covenant for damages. The judgment of the court below is affirmed, (a)

Blackwell, for appellants.

Cowles, for appellee.

Judgment affirmed.

(1)

A special verdict, to enable the court to act on it, must find facts, not merely state the evidence. Brown v. Ralston, 4 Rand., 504. Henderson v. Allen, 1 H. and M., 235. Seaward v. Jackson, 8 Cowen, 406. Laframboise v. Jackson, id., 589. Thompson v. Farr, 1 Speers, 93.

The presiding judge may authorize the jury to find specially on any point arising at a trial. Dyer v. Greene, 10 Shep., 464.

A special verdict may be found by consent of parties, or by the direction of the judge, or at the discretion of the jury, but can not be claimed of right by one party. Thompson v. Farr, 1 Speers, 93.

(2)

The principle is well settled, that where a suit is brought on a note, a plea that the consideration of the note was an agreement to convey certain lands—that the conveyance has not been made, and that the payee has no title to the land, is a good defense to the note. Tyler v. Young et al., 2 Scam., 444. Mason v. Wait et al., 4 Scam., 135. Gregory et al. v. Scott, id., 393. Duncan et al. v. Charles, id., 566. Hall v. Perkins, id., 549. Davis v. McVickers, 11 Ill., 329. But where the conveyance lias actually been executed, it is not by any means clear that such is the rule. In New York, (and this appears to be the rule in most of the states,) if a purchaser who has a deed containing the usual covenants, has been evicted, he may, in an action by the grantor for the purchase money, show the eviction as a defense to the suit. Lamerson v. Marvin, 8 Barbour’s S. C. Rep., 11, and cases there cited. Hoy v. Talieferro, 8 Smedes and Marshall, 727. Clark v. Snelling, 1 Carter, 382. Wilson v. Jordon, 3 Stewart and Porter, 92. Rawle on Covenants for Title, 652. Where, however, there has been no eviction, though the evidence shows a want of title in the grantor at the time of making the conveyance, it is not so well settled, and the authorities are conflicting. Frisbie v. Hoffnagle, 11 Johns., 50, was one of the first prominent cases on this subject. In that cáse the defendant, in an action on two notes given for the purchase money of land sold with covenants of warranty, proved that the land had subsequently been sold under a judgment against the plaintiff, and a sheriff’s deed made .to the purchaser, but the defendant had not been actually evicted or disturbed in his possession. The court said: “ The consideration for the note has entirely failed, for the defendant has no title, it having been extinguished by the sale under the judgment. Here is a total, not a partial failure of consideration; for although the defendant has not yet been evicted by the purchaser under the sheriff's sale, he is liable to be so, and will be responsible for the mesne profits.” This decision, it is said, has been repeatedly overruled; but the principal objection to it has been that there was no eviction. It was however approved in James v. Lawrenceburg Ins. Co., 6 Blackford, 525, and Cook v. Mix, 11 Conn., 438. In Scudder v. Andrews et al., 2 McLean C. C. Rep., 464, McLean, J., said: “If the plaintiff had no title or claim to the land, which is asserted by the plea and admitted by the demurrer, the defendant has a right to set up that fact as a defense to an action on the note. Why should he be driven to his action on the warranty, if a warranty deed were given, of which, however, there is no evidence ? ”

In Tallmadge v. Wallis, 25 Wendell, 113, Walworth, Chancellor, said: “ The question whether a total failure of title, upon a conveyance with warranty, is a, good defense to a suit upon the notes given for the purchase money, is one upon which judges have entertained different opinions.” Again, after speaking of an actual eviction so that the claim to damages would be equal to the full amount of the,purchase money: “ In such a case I can see no good reason why the defendant, to avoid circuity of action, should not bo permitted to plead such total failure of consideration as an absolute bar to the suit, in the same manner as if the note or bond had been given upon the sale of a horse warranted sound, which turned out to be unsound and entirely valueless.”

On the other hand, in Lamerson v. Marvin, 8 Barbour’s S. C. R., 11, it was held, that as the defendant had received the possession from his grantor, and still retained it, until he had been evicted or compelled in some way to recognize the title of the person in whom it was alleged to be, he should not be permitted to draw in question the title of his grantor, Rawle says, in Covenants for Title, 652, after reviewing the New York decisions: “From the foregoing cases, it would seem to be settled in New York, that unless there has been an eviction, actual or constructive, of the whole subject of the contract, no defense to payment of the contract price can be set up in a plea in bar.” The cases referred to in the opinion of Judge Lockwood, and in the note of Judge Brebse, are to the same effect.

*230See also Dix v. School District, 22 Vermont, 316. Oldfield v. Stevenson, 1 Carter, 153. Clark v. Snelling, id., 382. Wheat v. Dobson, 7 Arkansas, 699.

In oar own courts the question was raised once incidentally and once directly, since the decision of the case of Vincent and Bertrand v. Morrison. In Furness v. Williams et al., 11 Ill., 229, in an action brought to recover the purchase money, the defendant pleaded that a part of the land conveyed had been sold for taxes— that the time of redemption had expired—and that therefore the consideration to that extent had failed. Tkeat, C. J., said: “ On every principle of correct pleading, he, (the defendant,) 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.” Probably we might infer from this, if the matter had been properly pleaded, the court would have held it a good defense; but the question not being directly before them, no further opinion is expressed by the court.

The other case referred to is, Slack v. McLagan, 15 Ill., 242. There the cjurt held it a “ sufficient defense to an action upon a note to set up a breach of a covenant of warranty in a deed of land, for the price of which the note was given.” The opinion of the court was delivered by Scates, Justice, and in it no allusion is made to the case of Vincent and Bertrand v. Morrison, and the only authorities referred to are Gregory et al. v. Scott, 4 Scam., 392, and Tyler v. Young et al., 2 Scam., 446. These two cases we respectfully submit, do not sustain the position of Judge Scates. In each case no conveyance had been made; the defendants held only bonds for title, and the pleas alleged that the titles were defective, or that the plaintiffs had no title, and therefore the consideration of the notes sued on had failed. We have before attempted to show that in such cases our courts have invariably held it a good defense; but in none of those cases, except the case of Slack v. McLagan, has the question under consideration been decided by them. We therefore assert, from this review of the authorities, that it is not a settled principle, that such defense can be made where there has been a conveyance with covenants of warranty, and no eviction.

(a)

Where a special verdict is imperfect by reason of any ambiguity or uncertainty, so that the court can not say for which party judgment ought to be given, a venire de novo should be awarded. 2 Mason, 31. 11 Wheat., 415.

Where a promissory note is given for the purchase of real property, the failure of consideration, through' defect of title, must be total, to constitute a good defense to an action on the note. Greenleaf v. Cook, 2 Wheat., 13.

Any partial defect in the title is not inquirable into in an action on the note in a court of law, but the party must seek relief, if any where, in chancery. Ibid.

The guardian of an insane person who had given promissory negotiable notes for the proper debt of his ward, and expressed in the notes that he did it as his guardian, was held bound in Ms private capacity. Thatcher v. Dinsmore, 5 Mass. Rep., 299.

If a deed contain the usual covenants, the vendee can not set up either a partial or total failure of title against the vendors’ suit for the purchase money. Phelps v. Decker, 10 Mass. Rep., 279. So in Maine, 1 Greenleaf, 352.

In Pennsylvania and South Carolina a defect in the title or quality of the land may be given in evidence against a demand upon a bond or note for the consideration money of the deed. 1 Searg. and Rawle, 438. Hart v. Porter, 5 ibid., 204. Thompson v. McCord, 2 Bay, 76. Sumpter v. Welch, ibid., 558.

A covenant by an executor on a conveyance of land of Ms testator, in his capacity of executor, “ and not otherwise,” is not binding on him in Ms individual capacity, although it may not be binding on the estate of the testator. Thayer v. Wendell, 1 Gallison, 37. Coxe’s Dig., 219.