¶1The Opinion of the Court was delivered by
¶2.In October, 1835, the School Commissioner of Greene county sold to Evans part of the sixteenth section, for which he gave the notes sued on, with security. To this declaration in debt he pleaded, that the consideration of the notes sued on, was a sale by the School Commissioner, and conveyance by the State by Letters Patent, of the title in fee to the lands; and that the consideration had failed in this, — that long before the instituticn of suit on the notes, the State had conveyed her title in fee by Letters Patent to Greene Weaver for one portion, and to J. W. Dunnahay for the remainder for a full consideration by them. A demurrer was sustained to this plea, and judgmenty?r0 forma entered; and this decision is assigned for error.
¶3We are of opinion that the plea is bad. The principle settled in the case of Mason v. Wait, 4 Scam. 135, and Gregory v. Scott, Ib. 392, does not apply to the state of the case presented by this plea. The estate is the true consideration for the notes; but it was settled in the cases of Poole v. Vanlandingham, Bre. 22, and Bradshaw v. Newman, Ib. 94, that where a party sets up a failure of consideration, &c. he must show in his plea, how it failed. In attempting to do this here, he sets up that the State had conveyed to another. This may not defeat the title of the defendant, unless the sale to another was prior to his own. The law requires the School Commissioner to keep a book of his sales, and make returns to the Auditor. The defendant may, for any facts set forth in his plea, have obtained a Patent prior to the other Patents; or may compel the Auditor by mandamus to issue a Patent to him; The People, ex. rel. John Davlin v. The Auditor, &c. 2 Scam. 567; and which, by uniting a prior equity and subsequent title in fee, may be sufficient to assure to him the estate, as against the Patents mentioned in his plea'. No one would contend, that a Patent issued by the executive officers of the State without any authority of law, or contrary to the provisions of law, would divest the title of the State, or her former grantee, and it would be as difficult to maintain, that, after the State had sold and conveyed by Patent in pursuance of law, that title could be affected or defeated by another voluntary Patent issued contrary to law. The law also authorizes an assignment by the purchaser of his certificate of purchase. If these Patents were issued to the assignees of the defendant, the consideration has been fully realized. Every intendment, where pleading is uncertain, is most strongly against the pleader. We would presume that the public officers had done their duty, rather than that they had violated the law, and the right of the party defendant. The defendant, having shown that he purchased before the emanation of these Patents to Weaver and Dunnahay, if we indulge a presumption, it will be that they had secured his interest, and the right from him, to have these Patents as assurances of it.
¶4The’defendant should have negatived both these facts, that no Patent had issued to him prior to their Patents, and that the Patents issued to them were not so issued to secure his title to them as his assignees; At least, the former is indispensable; for he undertakes to show a failure of the consideration, by showing that the State had parted with the title to others, but without showing that the State had not previously made him a good and effectual title. In either point of view, the plea is defective.
¶5The judgment is affirmed with costs.
¶6Judgment affirmed.