Aaron Eames versus Edward Savage, Administrator, &c.
The statute of limitations may be avoided, when pleaded by an administrator to an action for money had and received by the intestate, &e., by evidence that the plaintiff paid money to the intestate, as a consideration for land, which the intestate promised to convey to the plaintiff, and of which he put the plaintiff into possession, that he never made such conveyance, and that the plaintiff has been evicted by persons claiming under the intestate within the time of limitation; whereby the consideration has failed.
But whether such a contract may be proved by paroi evidence, quart.
Assumpsit for 750 dollars, had and received by Ebenezer Seaver, the defendant’s intestate, on the 10th * day of October, 1809. The original writ was dated the 21st day of February, 1816. The defendant pleaded, besides the general issue, which was joined by the plaintiff, that the said intestate did not make the supposed promise within six years ; and in a third plea, that the cause of action did not accrue within six years from the commencement of the suit.
The plaintiff replies to the second plea in bar, that the money mentioned in the declaration was paid to the defendant’s intestate on the 10th of- October, 1809, as the purchase money for a certain messuage and lot of land situate, &c., into the possession of which the said intestate then and there put the said Eames, and promised to make him a good and sufficient deed thereof, and failed so to do; and that he, the said Eames, from the day aforesaid until the 1st day of February, 1816, quietly enjoyed the same messuage and land, and on the same day was evicted therefrom by persons claiming under said intestate: and the consideration for which the said money was paid then and there failed ; and that this action was commenced within six years from the time of his eviction aforesaid, and the failure of the said consideration.
The replication to the third plea in bar is, in substance, the same as the foregoing; and to each of them the defendant demurs spe daily, assigning the following causes, viz.: 1. Because the defend ant has in his plea alleged a material and issuable point, viz., that the said intestate never made the promise alleged, at any time within six years from the commencement of the plaintiff’s action, and *364thereby tendered to the plaintiff a material issue, on which the merits of the cause might have been decided ; but the plaintiff has not taken issue thereon, nor hath he traversed the same, but hath passed by and taken no notice thereof, neither confessing nor avoiding the same; and he hath, in his replication, set forth alleged certain facts, which it would have been competent, for him to show in evidence under the issue tendered by the defendant; which tends to introduce * uncertainty, confusion, and unnecessary length of pleading. 2. Because it does not appear, from the said replication, what was the nature of the said; supposed agreement between the plaintiff and the said Seaver, or what were the terms thereof, or whether it was binding on the parties. 3. Because it does not appear that the said Seaver was bound to execute a deed of the said messuage and land, or that he was ever requested by the plaintiff to make such conveyance, and refused so to do ; nor does it appear whether the agreement was of such a nature that the defendant, in his said capacity, might not have executed the same. 4. Because it does not appear, in the said replication, in what manner the said Seaver, or his estate, were liable to answer for the act of persons claiming under him, nor why the estate of the said Seaver should be answerable for the eviction of the said Eames. 5. Because the said replication and the matter therein contained are informal, argumentative, and void in law.
The plaintiff joins in demurrer.
Thatcher, for the defendant,
argued that the pleas, being given by the statute of limitations, are a sufficient answer to the plaintiff’s action ; and that the statute alone can furnish a sufficient reply. The defendant has tendered an issue on a material fact, the decision of which would settle the whole question. It was the duty of the plaintiff to join the issue so tendered, if he meant to insist, as a matter of fact, that the promise was made within six years, or that the cause of action accrued within that time.
If the plaintiff meant to avail himself of the provisions or exceptions of the statute to avoid its operation, as that he was disabled from bringing his action, or that the defendant could not be sued by reason of any of the causes which are contained in the statute, he should have replied such matter specially.
In the case of The Mayor, &c., of Oxford vs. Richardson & Al.
it is settled that, whenever the point in question is traversed by one party, the other must take * issue upon it; for the parties are not to go on in infinitum.
*365Ward, for the plaintiff.
Whenever the statute of limitations is pleaded, the matter relied upon to take the case out of the statute must be specially pleaded. The replication introduces new matter in avoidance of the bar with an averment. The plaintiff could not have availed himself of this matter, had he joined the issue tendered by the defendant.
If the agreement stated in the replication had been binding, the present action could not be maintained; and it appears, from the statement of it, that it was such as the defendant could not have been compelled to execute.
The replication, as to its merits, is within the reason of the decision in The First Massachusetts Turnpike Corporation vs. Field & Al.,
that fraud is a good replication to a plea of the statute of limitations. The presumption of payment, which is the ground of the statute, can have no place here upon the facts disclosed in the replication.
Per Curiam,.
The result of all the facts stated in the replica-
tions to the pleas in bar in this case is, that the cause of action accrued to the plaintiff within six years; and the plaintiff should have joined the issue, if he was well advised that the contract set forth might be proved by parole, of which we now give no opinion. The contract was broken, because the intestate did not make the deed in his lifetime; for no time being fixed, he had his rife to fulfil the contract, unless the plaintiff had demanded a performance, and been refused.
As the plaintiff, if entitled to this evidence at all, would have been entitled to it on the trial Of the issue tendered by the defendant, and as the latter has assigned this as a cause of demurrer, the replications are adjudged bad.
Ward had leave to amend his replications, on paying the costs arisen since the demurrers were filed,