Cook v. Johnson

Tompkins, J.,

delivered the opinion of the Court.

Cook brings his action of covenant against Johnson, and judgment is given against him. He appeals to this Court. Cook in his declaration alledges performance of all things he was bound to do, and assigns for breach that Johnson had not conveyed certain lands according to his covenant. Johnson pleads that Cook had not on a certain day, any deed on file in the Circuit Court for record for him, Johnson, thereby meaning to put in issue the sufficiency .of the title of Cook to some lands which he. Cook, had averred an offer to convey in performance of his covenant. To this plea the plaintiff demurred, and the Circuit Court overruled the demurrer. The covenant here sued on is the same given in evidence in the action of ejectment between the same parties brought up and decided at this term in this Court. That covenant being decided to be independent of Cook’s covenant to Johnson, the plea is bad, and the judgment of the Circuit Court must he reversed, and the cause remanded.