Opinion
September 1809.
Whatever is not denied in pleading is virtually admitted. [Acc. Copeland v. May, 1 Tenn. 301, and cases cited.]
A plea of covenants performed admits the due and proper execution of the bond on which the action is founded, and, if the covenant be to make title to land, implies that the defendant had made title; and he must prove it, or show by law, that, agreeably to the plaintiff's own showing, he was not bound to make it. [Acc. Governor v. Organ, 5 Hum. 161; Hogan v. Carland, 5 Y. 283.]
When no time is specified in a bond to convey, the law implies that the conveyance shall be made in a reasonable time.
Where a covenant to convey land is silent as to the precise quantity, quality, and boundaries, parol evidence is admissible as to these points; but not as to the meaning of the covenant so far as it goes. [Acc. McFarlane v . Moore, 1 T. 174; Vanleer v. Fain, 6 H. 104; Cheathem v. Haley, 1 Tenn. 265; Snodgrass v. Ward, 3 Hay. 40.]
The measure of damages for the breach of a covenant to convey land is the value of the land at the time fixed for the conveyance, with interest. [Acc. Perkins v. Hadley, 4 Hay. 143; Hopkins v. Yoweli, 5 Y. 305, and now settled law.]
M'KENNEY, for defendant, offered parol proof of what was intended by the covenant.
This was an action brought on a bond, given by the defendant to Stephen Bean in the year 1800, containing a covenant to convey part of a 500 acre tract, with a reference to one of the lines of a tract which had previously been sold out of the same tract. The quantity, or particular boundaries, were not expressed. Plea, covenant performed, non infregit conventionem, and release; replications and issues on the first two pleas.
Oyer and demurrer, and joinder in demurrer, as to the last. The covenant was assigned by Stephen Bean to John Bean, in the year 1801; and by John Bean to the plaintiff, in the year 1806. This covenant was signed by the defendant and Stephen Bean; nor is any time within which the title should be made expressed in it. In it there is a covenant, on the part of Bean, in these words: "for which land, said Bean does promise to pay said Taylor one dollar fifty cents per acre." And on the part of Taylor it was covenanted, that, if the land should be lost by better claims, he was to refund the price received. The jury having been sworn on the issues.
On the part of the plaintiff, evidence was given showing the bounds of the 500 acre tract; the part that had been sold previous to giving the bond; and the quality of the part unsold, which lay in the direction from the line of the part sold, as described in general terms in the bond.
The construction of all instruments of writing is matter of law for the Court; and not of fact for the jury. The precise quantity, quality, and bounds of the lands are left open by the covenant; parol proof may be adduced to those points; but not as to the meaning of the covenant so far as it goes.
M'KENNEY then offered the same instrument of writing, which was pleaded as a release in this cause, in the following words: "State of Tennessee, Carter County. I, John Bean, of Grainger county, do hereby acknowledge that Nathaniel Taylor has fully complied with an article that he. Taylor, entered into with me, as to a tract of land in Grainger county; it being the place where I now live, c., which he, Taylor, sold me, and bound himself, in an article, to convey to me,c., which land, I do acknowledge he, Taylor, has conveyed to me as he was bound to do; and the article he, Taylor, gave me, binding to convey the land, is null and void and I will give it up to him, Taylor, or heirs, e. And further, I do acknowledge that I have no other article or instrument of writing on said Taylor, binding him to convey land, but which is hereby made void. As witness my hand and seal this 21st March, 1807." Test,c. JOHN BEAN (Seal).
It was insisted that this was evidence of a satisfaction of the, covenant under the plea of covenant performed.
If this would be proper evidence at all, it cannot be received under the pleadings made up in this cause. Had accord and satisfaction been pleaded it might be another question;
The counsel then insisted to the jury it was necessary for the plaintiff to prove notice of the assignment on the defendant, as charged in the declaration; and that, as no time was mentioned in the articles of agreement within which the title should be made, the defendant had his whole life to make the conveyance. There could be no evidence as to the value of the land, because its limits were not expressed. It is incumbent on the plaintiff to support his action in every respect; this he has not done.
The covenant specifies that, if the land be lost by better claims, the defendant is to refund the price of the land which has been proved to be one dollar fifty cents.
The plaintiff, before he can recover, ought to show the payment of the consideration; and then the obligation would arise, but not before.
By the Court. The construction of this article cannot now come into question, as the pleadings are made, further than is stated in the declaration. If this were designed, the defendant should have craved oyer and set out the covenant, after which, he might have exhibited any defence he thought proper. The declaration does not aver the payment of any consideration on the part of the plaintiff, or those under whom he claims; nor was it necessary as the deed itself, per se, imports a consideration. It only avers that the defendant bound himself to make a title, which he had not done. The only plea which meets this case is covenant performed. The general plea of non infregit conventionem, if good at all, can only be so to a negative covenant; but it is doubted whether it be good even in that case. See 2 Lev. 183; 3 Lev. 19; Tidd's Practice, 201; Com. Dig. tit. Pleader, 2, v. 5.
This is an affirmative covenant, to which the second plea cannot in any event apply. The defendant cannot go beyond the pleadings. The declaration states a breach in not making a title, as the defendant was bound to do. The plea of covenants performed implies that the defendant had made this title; and he must prove it, or show by law that, agreeably to the plaintiff's own showing, he was not bound to do it. This, it seems to us, is not one of those cases in which the defendant had his whole life to comply with the covenant. The law will imply (under all its circumstances) it should be performed in a reasonable or convenient time, of which the jury are the judges. Further, as to the state of the pleadings, and the objections on the part of the defendant to the plaintiff's case for want of proof; it seems to be a general rule, that whatever is not denied in pleading is virtually admitted. And it is important that evidence should, in all cases, be confined to the issue, to prevent surprise.
As to the measure of damages, there seems to be some doubt. Cases of this kind, for the most part, have been heretofore left to the jury, who have generally given the value of the land contracted for at the time of the rendition of the judgment. And per OVERTON J. — It seems to be the better opinion, that the value of the land at the time of the contract, or the time fixed for its performance, with interest, should be the measure. And the best evidence of such value is the price paid, when that can be ascertained. This question is, however, now before the Federal Court for West Tennessee, from the decision of which we may expect to derive much light. Verdict for the plaintiff.
The law has been since settled according to this opinion of Overton, J.
During the same term, on the argument day, the demurrer to the third plea was argued before Overton, J., sitting alone. See the copy of the instrument pleaded as a release in this report.
M'KENNEY, PARSONS, and KENNEDY argued for the defendant after WHITE, for the plaintiff, had briefly opened the cause. It was contended, on the part of the defendant, that a covenant perpetual was equivalent to a release, and might be pleaded as such. Bac. Ab. tit. Release, A.; Ib. tit. Pleas and Pleadings, V. On demurrer, the Court must determine on the whole record; and if the Court should be of opinion, notwithstanding the plea may be defective, that the plaintiff, by his declaration, has not made such a case as to entitle him to recover, it must give judgment for the defendant.
WHITE, in conclusion. — The first question is, whether the paper referred to by the plea was intended as a release against the article declared on. And, secondly, whether the words of it will warrant such an inference. He took it to be a sound rule, that a covenant never will be construed to embrace more parties, or greater matter, than the words will warrant. There is nothing to lead us to suppose that the instrument declared on, was the one in view by the release.
By no possible rule of construction can the instrument relied on in the plea be considered as a release of the one declared on. In the first place, John Bean had assigned to the plaintiff, before the release was given. The paper pleaded as a release, refers to an article that he, Taylor, entered into with me, meaning John Bean. In the conclusion of the instrument, John Bean, who gave it, acknowledges that he had no other article or instrument on the defendant, Taylor. Can this language fairly be made to release an obligation given to Stephen Bean, which happened to pass through John Bean's hands, but was not then in his possession? By no means. Nor does the latter clause help the defendant; John Bean might well say that he had no instrument on the defendant; for he had not, at that time, any other article, or instrument by assignment or otherwise, for aught appears on the defendant. Besides, this latter clause does not vary the meaning of the first as to the description of the instrument intended to be released. It is true, as stated by the defendant's counsel, that though the plea may be defective, yet, if it appear from the declaration that the plaintiff is not entitled to recover, there must be judgment for the defendant; but the declaration is sufficient, therefore there must be judgment for the plaintiff.
Demurrer sustained.