John Patterson, Appellant, vs. B. B. Goodrich, Appellee, 3 Tex. 331

Mr. Justice "Wheeler, after stating the facts of the case,, delivered the opinion of the court. The defendant had covenanted to mate to the plaintiff a good and sufficient title to the land in question. The breach assigned in the petition is, that he had failed and refused to make such title. The answer alleges that the defendant had made a good and sufficient title, such as by law he was required to make, by a deed which it sets out, and which, it avers, constitutes such a title.

To this answer there was no replication or exception; and, from the reference to the “issuespresented iy the pleadings” made in the record of the judgment overruling the motion for a new trial, it is supposed that the ruling of the court may have proceeded upon the position that, as the plaintiff must be regarded as having joined issue upon the answer, its legal sufficiency was thereby admitted, and its truth being established, that is, the issue being proved in favor of the defendant, he was entitled to recover, without regard to the merits of the defense set up by the answer.

That is, in effect, that if there is no replication or exception to the answer, and its truth is proved, judgment must go for the defendant, though the answer may have presented in law no defense to the action. This is a question which we have heretofore had occasion to consider. We have decided that where the answer, though true, presents in law no defense to the action, it cannot afford a foundation for a judgment for the defendant, when the plaintiff, on his part, has shown a cause of action supported by proof. [Borden vs.

The Republic, 2 Texas R.] It would be as repugnant to the sense of justice to permit an illegal or invalid defense to prevail against a legal and meritorious cause of action, merely because the plaintiff had omitted to accept, as it would be to permit a recovery to stand, for the same cause, when the foundation of the action had manifestly failed. It was said, in argument, that the plaintiff had been placed in possession, and had sold the land in question, and is enjoying the benefit of his purchase. Such is not the case presented by the record before us.

There is, in the statement of facts, or in the record, nothing to warrant this position. The tender of a deed by the defendant, when he had no title, was not a performance of his covenant to make a good and sufficient title. This he could only do by conveying a good title. [4 Shep. 164; 2 Greenl. 22; 1 Blackf. 380; 10 Johns.

R. 266; 5 Mass. 499.] And though it was not, perhaps, incumbent on the defendant to show that he had a title at the time of the tender of the deed [4 Pick. 179], yet, when the plaintiff had shown that he had no title, he had shown that which must repel the defense set up, of a compliance by the defendant with his undertaking.

"We are of the opinion that the plaintiff, being the vendee, was not bound to prepare and tender a deed for the signature of the defendant [5 Cowen, 506; 15 Pickering, 552], nor to accept it when executed and tendered to him by the defendant, unless it had conveyed a good title to the land which the latter had covenanted to convey. "We are of opinion, therefore, that the court erred in refusing the 1st, 2d and 3d instructions asked by the plaintiff, and in qualifying the 4th by denying its application to the case in evidence; and that, therefore, the judgment be reversed, and the cause remanded for a new trial.