Robert J. Mickler and Mary E. Mickler, Appellants, vs. John M. Reddick, Appellee, 38 Fla. 341

Mabry, C. J.: The order of the trial judge vacating the judgment by default and final judgment entered thereon is assigned as error. We are of the opinion that the judge committed no error in the order made. Pleas had been filed and demurred to, and without any disposition of the demurrer an order was made in term time for leave to withdraw the pleas and file amended ones, but when the default was entered there had been no withdrawal of the pleas, and plaintiffs had no right to take tbe default.

The order granting leave to withdraw the pleas did not compel defendant to abandon them, nor did it remove them from the case, and until there wás some disposition of them, no default could properly be taken for want of pleas. The position of counsel for appellants, that by force of the statute the default entered in the case could not be set aside after the expiration of sixty days from the entry thereof, is not correct.

Under the pleading act of 1873 (sec. 35, p. 821 McClellan’s Digest) it is provided that the court or judge, for good cause shown, may open any default or judgment for want of appearance, answer or plea, and allow a defendant to demur, plead or answer within a time to be fixed, provided an application for such purpose be made within sixty days from the time of the entry of such default or judgment, unless a term of court shall in the meantime be held, when such application must be made during such term.

The limitation of the sixty days for opening defaults provided in the statute has no application to defaults entered in violation of law, and without any legal authority whatever. The clerk has no authority by the statute to enter a judgment by default for want of a plea when one with due formalities and sworn to is on file in the case, and should he do so, his act would be entirely void. The Circuit Judge can annul any such void act of the clerk, and nothing more was done in the present case.

The action of the court in overruling the demurrer to defendant’s first and second j-deas is also assigned as error, and this presents a question of some difficulty.

Chancellor Kent, in his Commentaries (vol. 2, p. 471) says that “on the subject of the claim to a completion of the purchase, or to the payment or return of the consideration money, in a case where the title or the essential qualities of part of the subject fail, and there is no charge of fraud, the law does not seem to be clearly and precisely settled; and it is difficult to reconcile the cases, or make the law harmonize on this vexatious question.” In the case of Long vs. Allen, 2 Fla. 403, S. C. 50 Am.

Dec. 281, a bond for title to real estate had been given by the vendor to the vendee and a note taken for the purchase money. In a suit at law on the note the defense of an outstanding equity in the land in a third party was attempted to be made, and it was held that it was not sufficient to sustain a plea of a failure of consideration.

It was also held that a bond or covenant constitutes a good and valuable consideration for a note given upon a sale of land, and the want or failure of title was no defense to an action on the note, and that a court of law, though the proper tribunal to try the title to land, will not try it collaterally.

In speaking of the defense at law to a note for purchase money of land, it is said: “The cases on the subject in the American courts are based on the ground of fraud or eviction, or that which is equivalent, or of admitted or unquestionable paramount title.” On the subject of eviction, or trying the title collaterally, the following language in the opinion in Hoy vs. Taliaferro, 8 Smedes & M. 727, is quoted: “A court of law, although the proper tribunal for the trial of titles to land, will not try such titles collaterally. The proceeding must be direct, otherwise the title can not be questioned.

Where there has been an eviction, the defense of failure of consideration may be let in, because the superiority of the outstanding title is then established by g, judicial determination.” The doctrine of the Mississippi case cited clearly is that a vendee of land who has received a deed with covenants of warranty and possession can not, when sued at law on a note given for the purchase money, set up the defense of a failure of consideration without showing an actual eviction. No question was raised in the case as to the effect of fraud in the sale of the land. The first plea in the case of Reddick vs.

Mickler, 23 Fla. 335, 2 South. Rep. 698, which was an action at law on a note, alleged that the note was given for part of the purchase money of certain described land conveyed by plaintiff to defendant, but the consideration of the note had failed because plaintiff had not placed defendant in possession of the land. There were other' vague and uncertain pleas designed, probably, to set up the defense that defendant got less land than called for in the deed. Nothing was alleged as to the character of the covenants in the deed, if any.

The pleas were considered as presenting no sufficient defense, and regarding them as attempting to present a failure ■of consideration, because the defendant got less land than called for in the deed, it was decided that a partial failure of consideration was not a good plea to an •action on a promissory note for the purchase money of land, where the failure consists in the land falling short of the quantity described in the deed. The cases of Greenleaf vs. Cook, 2 Wheaton, 13, and Lloyd vs. Jewell, 1 Greenleaf (Maine), 352, S. C. 10 A. M. Dec. 73, are cited as authority in the opinion rendered in Long vs.

Allen, and the first one, from the Supreme Court of the United States, holds that where a note is given for the purchase money of real estate, the failure ■of consideration through defect of title must be total, in order to constitute a good defense to an action on the note. The Maine case holds that in an action upon a note given for the purchase money of land conveyed by deed with usual covenants of seizing and warranty, it is not competent for the defendant to set up a partial or total failure of title, or want of title in the grantor at the time of the conveyance.

The doctrine •of the Maine decisions seems to be that a partial failure' of title to real estate conveyed with warranty of title will not be permitted to operate as a defense pro tanto to a note given for the purchase money. Howard vs. Witham, 2 Greenleaf (Maine), 390; Wentworth vs. Goodwin, 21 Maine, 150; Hammatt vs. Emerson, 27 Maine, 308, S. C. 46 Am. Dec. 598.

In the last case it is held that a partial failure of consideration for a note given for land, not arising out of a failure of title, but out of fraudulent representations respecting the quantity of timber trees on the land, may be given in ■evidence in defense to a suit on the note. The doctrine of recoupment has become well recognized and favored by the courts, but it has been questioned as having proper application to the case of a partial failure of title to land. In Myers vs.

Estell, 47 Miss. 4, it is said (page 19): “And although there is some diversity of judicial opinion upon the subject, it is believed to be the better opinion that this defense can not, in general, be made where the partial failure relates to the title to real estate merely,” and the opinion states some of the reasons why it was believed the rule does not apply in such cases. It was decided in Whitney vs.

Lewis, 21 Wend. 131, that where land had been conveyed by deed with covenant for quiet enjoyment, and a note given for the purchase money, it was no defense to an action at law on the note that the grantor was not seized in fee and had no right to convey the premises, in the absence of fraudulent representations on the part of the grantor in respect to the title. The later case of Talmadge vs.

Wallis, 25 Wend. 107, expressly holds that where there has been an eviction and the purchaser is liable to the true owner for mesne profits to an amount equal to the sum demanded of him by his vendor, he may plead such facts in bar of an action for the purchase monéy as showing a. total failure of consideration, but whether a total or partial failure of consideration by reason of defect of title can be shown where the conveyance was with warranty and there was no eviction, was made a question.

This case also holds that a plea of want of seizin in a vendor who had conveyed real estate with covenant of seizin was no bar to an action of debt on bond given for the purchase money, and that to prevent a recovery on the ground of a total failure of consideration, the defendant must allege that he obtained no estate or interest whatever under the conveyance; and also in a plea of want of seizin it should specify the defect of title and show in whom the title was. In chancery a distinction is made between executed and executory contracts as to the sale of land. The chancery case of Hunter vs.

Bradford, 3 Pla. 269, decides that where a purchaser takes a deed with warranty, pays the purchase money and has possession, and there is no fraud in the transaction, he can not, before eviction, obtain the aid , of chancery to have the contract rescinded, or purchase money restored on the ground of a defect of title, as his remedy is at law on the covenants in his deed. The rule is otherwise as to executory contracts.

It was also held that in case of an executed contract the court would interpose to rescind the contract, where it was rendered.proper and necessary by reason of the fraud or insolvency of the vendor.

This case involved the sale of land, and bond to make title upon the payment of purchase money evidenced by note was executed, and resting the decision upon the principle that the vendee must seek his redress at law upon the covenants in his bond, it was held the insolvency of the vendor who had died was good ground for equitable interposition upon the principle that chancery will lend its aid when there is not a full, complete or adequate remedy at law. In the case of Yonge vs.

McCormick, 6 Fla. 368, the court, following the liberal rule stated in Virginia cases, held that equity would enjoin the collection of the purchase money of land, on the ground of defect of title, after the vendee has possession under a conveyance with general warranty, if the title was either prosecuted, or threatened, or if the purchaser could show clearly that the title was defective. In this case there was a partial failure of title and the insolvency of the vendor was alleged.

In foreclosure suits it is the settled rule, in chancery, that a mortgagor in possession under a deed from the mortgagee with full warranty of title, and there has been no eviction actual or constructive, or fraud or insolvency on the part of the mortgagee, can not set up an outstanding title or breach of covenants as a defense to a bill to foreclose for unpaid parchase money. Randall vs. Bourgardez, 23 Fla. 264, 2 South. Rep. 310; Adams vs. Fry, 29 Fla. 318, 10 South. Rep. 559.

At law the rule seems to be well established that in the absence of fraud the vendee of land who has accepted a deed and gone into possession, can not defend' an action to recover the purchase money on the ground of a defective title, as he is remitted in such a case to his rights under the covenants in his deed, and if he has neglected to protect himself by sufficient covenants, he is without remedy on a subsequent failure of the title. 2 Warvelle on Vendors, p. 919, sec. 2.

If, however, he has been induced to enter into the contract of purchase by fraud and deceit, or he has lost the land, held under deed with usual covenants of warranty of the title, by an eviction, or that which is tantamount thereto, with liability to mesne profits, he can successfully defend against the payment of the purchase money remaining unpaid. The pleas in this case, as shown by the statement, set up a partial failure of the title to the land sold, but, in view of the decisions referred to in the case of Long vs.

Allen, we do not consider the right of a defendant to set up a partial failure of title to land under our statute permitting a total or partial failure of the consideration of a note. The conclusion reached makes it unnecessary to consider this point. The fact that Mary E. Mickler is a married woman and not liable on the covenants in her deed, if such be the case, will not aid the pleas. It clearly apftears that it was the agreement of the parties that the husband should unite with his wife in a deed of warranty, and the defendant obtained all he contracted for in this respect.

The husband could be sued on the warranties in the deed, in case of breach, and such a deed was satisfactory to the defendant. The insolvency of the husband may constitute. sufficient ground for equitable interference, but the ground of such interference was based, In the case of Hunter vs. Bradford, supra, upon the inadequacy of the legal remedy. The contention here in support pf the pleas is that they allege fraud in the sale of the property. We are of the opinion that the pleas do not sufficiently allege fraud in the sale of the property.

It is true that one of the pleas alleges that in the sale of the property a fraud was perpetrated upon the defendant, but this is the. conclusion of the pleader without a sufficient predicate. The plea states that Mary E. Mickler agreed to convey the land by deed with covenants of warranty in which her husband should join, and that they did execute and deliver a deed with covenants, among others, that the land was clear, free and unencumbered, and that they would defend the title against all legal'claims whatsoever.

It is further stated that the note sued on was given for the residue of the purchase money of the land upon the sole consideration of the said sale and conveyance, the stipulations and assurances on the part of plaintiffs that they had good right, full power and lawful authority to sell the fee in the land as described, and of the covenants therein contained. Stipulations contained in a deed of warranty that the vendors had good right, full> power and lawful authority to sell the land, though untrue, do not alone constitute fraud in the sale.

If so, every such deed when the vendor’s title failed could be set aside on the ground of fraud in fact. A fraudulent purpose, or such conduct as will amount to a fraudulent intent in making the representations, should be alleged. A plea undertaking to set up fraud in the sale of land much like the one before us was held to be insufficient in the case of Whitney vs. Lewis, supra. The case of Hammatt vs. Emerson, supra, also contains a discussion as to the essentials of a plea alleging such a defense. Neither can the pleas be sustained on the ground that there was an eviction, or that which was tantamount thereto.

It is stated that plaintiffs, the vendors, did not have title to part of the land when the deed was executed, and had not since acquired any title or right to sell, and that by means thereof defendant had not had possession or enjoyment of the land, but it is not stated who held the title, or how it was held, or that the land was held adversely by any one. It is not shown that defendant was kept out of possession by any superior title, or that he could not have gone into possession under the deed at any time since its execution and before suit brought on the note.

Maupin on Marketable Title to Real Estate, sec. 146. In our judgment the court should have sustained the demurrers to the pleas, and the judgment will be reversed with directions that such order be made.