¶1Debt by Folsom against Hooker and others, on a writing obligatory for the payment of 100 dollars. Plea, failure of consideration.
¶2The plea alleges that the writing obligatory sued on, was given in part payment, viz., for the one-third of the purchase-money of a certain tract of land purchased by said Hooker of one Lewis L. Davis, who directed the writing obligatory to be made to the plaintiff below; that Davis conveyed the land to Hooker by deed in fee, with covenants of warranty and seizin; that the only title Davis had to the land was obtained by him at sheriff’s sale upon two executions issued on two judgments ren*91dered in the Clay Circuit Court, in favor of one Osborn and against one Hawley, on the 20th of October, 1845; that afterwards, on the 6th of March, 1846, the same lands were sold to one Beasley, by the sheriff of Clay county, on an execution issued upon a judgment rendered in the same Court against said Hawley, on a day previous to the 20th of October, 1845; that Beasley had obtained a deed from the sheriff in pursuance of the sale to him, and had commenced ejectment against Hooker for the recovery of the land, which action was then pending in said Court.
¶3Demurrer to the plea sustained. Judgment for the plaintiff.
¶4The plea avers that Hooker received a deed from Davis for the land, with covenants of warranty and seizin; but does not allege a breach of either of the covenants. Had either of them been broken before suit brought on the writing obligatory, Hooker might have set up that matter in his plea, as a failure of consideration.
¶5The sheriff’s sale to Beasley may vest in him the paramount title to the land; but such title being in him would constitute no defence to this action, until there was an eviction. That such eviction had taken place is not shown by an averment in the plea that Beasley had commenced ejectment for the land, and that the action was then pending.
¶6The plea, to have constituted a valid defence to the action, should have alleged either an entire want of title in Davis, or an eviction by paramount title. Neither of these allegations being in it, we think the demurrer was properly sustained. Whisler v. Hicks, 5 Blackf. 100.—Smith v. Ackerman, id. 541.—Pomeroy v. Burnett, 8 id. 142.
¶7The judgment is affirmed, with 5 per cent, damages and costs.