delivered the opinion of the Court.
This was an action of debtj brought by James McDaniel, in the Jefferson Circuit Court, against William P. Grace and Robert E. Waters, upon the following obligation :
“$1200. On the 1st day of March, A. D. 1852, we promise to pay Elias Hooper, the sum of twelve hundred dollars, for value received of him. Witness our hands and seals, this March 31st, A. D. 1851.
GRACE & WATERS, [Seal.]”
Which was assigned by Hooper to Moses Belcher, on the 1st day of April, 1851; and, on the next day, assigned by Belcher to the plaintiff.
The defendant, Waters, pleaded non est factum, to which plaintiff filed a special replication.
The defendant, Grace, obtained oyer of the obligation sued on, and the assignments thereon, and filed a special plea in bar, in substance, as follows:
That, on the 13th day of July, 1850, at the county of Jefferson, the said Elias Hooper, the payee, in the bond mentioned in the declaration, applied to the defendants, Grace & Waters, and then and there represented, declared and stated, that he and Mary E. Hooper, his wife, and their children — the only children and heirs of the said Mary E.' — were citizens and residents of the State of Louisiana, and were domiciled there, as was true; and that the said Mary E. was one of three children, and sole heirs of one Nathan Cloyes, and as such owned, and was entitled in her own right, and exclusively, except as to such rights as said Elias ob-*469tainecl and bad therein in virtue of bis marriage with her, or such interest as the widow of Nathan Cloyes might have therein as her dower, to one undivided third part of a certain pre-emption right, or claim, under the pre-emption laws of Congress, which said Nathan Cloyes, in his lifetime, had, and held in, and to a certain tract of land known and designated as the north-west fractional qwwt&r of section two, township one north, of rcmge twel/oe west, situate in the county of Pulaski, in the State of Arkansas, and lying immediately east of the Quapaw line. That said Elias or Mary E. never had, and have no other right or claim to the said land, other than such as was, as aforesaid, cast upon the said Mary E., as one of the heirs of the said Nathan Cloyes. And the said Elias then and there offered to sell and convey to the said defendants, in fee, all the right, title, interest and claim of the said Elias and Mary E., in and to the land aforesaid, in due form of law, for the sum of $2,500, and the defendants agreed and contracted to pay the said sum of $2,500 to the said Elias Hooper, in consideration, and only for and in consideration of the transfer and conveyance, in due form of law, in fee simple, to. the said defendants, by the said Elias and Mary E., of all their right, title, interest and claim in and to the land aforesaid. That said Elias then and there, pretendedly, in pursuance of said com tract, for himself, and for his wife, pretending to be duly authorL zed and empowered thereto, by the said Mary E., his wife, executed and delivered to the defendants, a pretended deed for said land, as follows — the same being signed and,jsealed by the said Elias for himself, and by him in the name of his wife, and by no one else, or in any other manner executed by his wife, who was not present, to wit:
“Know all men by these presents, that we, Elias Hooper, and Mary E, Hooper, wife of said Elias Hooper, of Claibourn Parish, State of Louisiana, for and in consideration of twenty-five hundred dollars, to us in hand paid, have this day bargained, sold, and conveyed, and by these presents do bargain, sell, and convey, unto 'William P. Grace and Robert E. Waters, of the State *470of Arkansas, county of Jefferson, all of our right, title, interest and claim in and to, and out of the following described tract or parcel of land, to wit: the nortb-west fractional quarter of section numbered two (2), in township numbered one (1) north, of range numbered twelve (12) west, and extending to the adjoining partition, which land was formerly adjoining the town of Little Nock, east of the Quapaw line, but a portion of it is now included.within the town or city of Little Nock, said land being situate in the county of Pulaski and State of Arkansas, together with all the privileges and appurtenances, buildings and dwellings of every description whatsoever thereto belonging. To have and- to hold the aforesaid interest to them, their heirs and assigns forever; and we, the said Elias Hooper and Mary E. Hooper, do, and our heirs shall warrant and defend the above described premises unto the said William P. Grace and Eobert E. Waters, against the lawful claims of all persons claiming by or through us. In testimony whereof, we have hereunto affixed our hands and seals, at Pine Bluff, this 13th day of July, A. D. 1850.
ELIAS HOOPEE, [Seal.]
MAET E. HOOPEE, [Seal.]
By E. Hoopee, Attorney in fact.” Test :
J. 0. Murray,
Peter GebmAN.
) )
Be it remembered, that this day personally appeared before me, an acting and duly commissioned justice of the peace, in and for the county of Jefferson, and State aforesaid, Elias Hooper, who, on producing a power of attorney from his wife, authorizing Mm to act for her, in her name acknowledged that he had made and executed the foregoing deed of conveyance, for the uses and purposes and considerations rtherein expressed, and desired me to certify the same, which is hereby accordingly done, this the 13th day of July, A. D. 1850.
PETEE GEEMAN, J. P.”
*471Tbe plea makes proferí of the aboye deed and acknowledgment, and continues:
And then and there, said Elias acknowledged said deed before Peter German, then a justice of the peace of said county, in the manner and form shown by the certificate to said deed annexed, and not otherwise : and the same was never, -in any manner, or at any time, acknowledged by the said Mary E.: and said defendant further avers, that when the said Elias made said contract to convey said land, and when he made said deed, and acknowledged the same as aforesaid, he had no other written power or authority from the said Mary E. to act for her, than that conferred upon him by an instrument in the words and figures following, to wit:
STATE OE LOUISIANA,
Parish of OlatbourN.
1 J
Pe it known, that this day before me, J. H. Cunningham, Parish Becorder, and ex-officio Notary Public, in and for the State and Parish aforesaid, duly commissioned and sworn, and in the presence of the subscribing witnesses, personally came and appeared Mary E. Hooper, wife of Elias Hooper, formerly Mary E. Cloyes, both residents of the State and Parish aforesaid, who declared that she had made, constituted and appointed, and by these presents do make, constitute and appoint, and in her place and stead put, and depute Elias Hooper-, my husband aforesaid, he being present and authorizing the same, and accepting the same, my true and lawful attorney, for her and in her name, and for her use, to ask, demand, sue for, recover and receive all such sum or sums of money, debts, goods, wares, dues, accounts and other demands whatsoever, which are, or may be due, owing, payable and belonging to her, or detained from her by any manner, or ways, or means whatsoever, or in whose hands soever the same may be found; and also to pay and discharge all sums of money due and owing by her to any person, or persons whatsoever: giving and granting unto her said attorney, by these presents, my full power, authority, in and about the premises, to have, sue and *472take all lawful ways and means in her name, and for the purpose aforesaid, and upon the receipt of any such debts, dues or sums of money, acquittances, or other sufficient discharges for her and in her name to make, seal and deliver. And generally, all and every act or acts, thing or things, whatsoever, needful and necessary to be done in and about the premises, for her and in her name to do, execute, and perform as fully, largely, and amply to all intents and purposes, as she myself might, or could do, if personally present; and attorneys, one or more, under him for the purpose aforesaid, to make and constitute, and again to revoke, at pleasure, hereby ratifying and allowing all and whatsoever, her said attorney shall lawfully do. This done and passed in my •office, in the Parish of Olaibourne aforesaid, in presence of W. ~W. Manning and Jacob Darsh, witnesses of lawful age, and domi-ciliated in said Parish; who hereunto sign their names, together with said parties, and me, the said Parish Recorder, on the twenty-ninth (29) day of June, in the year of our lord one thousand eight hundred and fifty (1850).
(Signed,) MARY E. HOOPER.
ELIAS HOOPER.”
Attest :
W. W. MANNING,
Jacob Danset.
) J
J. 0. CUNNINGHAM,
L ^
Recorder cmd ex-officio Notary PubMc.
Notarial seal.
The plea makes proferPof the above instrument, and continues:
And the said instrument was executed in the said State of Louisiana, and the same never was signed, sealed or acknowledged by the said Mary E., otherwise than appears on the face of the said instrument. That, soon after the date of the aforesaid deed, the said Mary E. departed this life, leaving her surviving, her lawful children, who were and are minors. That when the foregoing contract for the sale of said land was made, as aforesaid, the said *473land was, and ever since lias been, lield adversely by various persons claiming under a title adverse and hostile to the supposed title of said Mary E. and Elias, and they, or either of them, never gave, pretended, or had the power to give the-'possession of said land, or any part thereof, and said defendants, or either of them, never have been in possession of any part of said land, and have never received any rents or profits therefrom. That said Elias, or the said Mary E., or any one whomsoever, have never, in any manner whatsoever, conveyed, or attempted, or offered to convey, to the said defendants, or either of them, any interest or title whatever, in or to the said land, or any part of it, other than such as might have been vested in them by virtue of the deed and power of attorney aforesaid. Defendants aver and submit, that they, or either of them, in consequence, or in virtue of the deed and power of attorney aforesaid, did not acquire any title whatever in or to the interest, title or claim of the said Mary E., in and to the said land, or any part thereof; and at the time, and during her life, she, and since her death, her children and heirs, have been, and still are, the owners in fee of her interest and share in the claim and title in said land. That, in pursuance of the said contract for the sale of said land, and in full reliance on the good faith and honesty of the said Elias in the premises, on the date of the deed aforesaid, defendants paid down to said Elias the sum of §1,250, parcel of the consideration agreed to be given for the fee in said claim, and the title to the said land; and to secure the residue of the price agreed to be given for the same, and for no other cause or consideration whatever, executed and delivered to the said Elias, their bond for the sum of $1,250 payable about the first day of March, A. D. 1851; and after the same became due and payable, to wit: on the 31st day of March, 1851, the defendants paid said Elias the sum of $50, parcel thereof; and, in lieu and substitution of said bond, and for no other new or ■different consideration whatever, the said ¥a P. Grace made, sealed and delivered to the said Elias Hooper, the said bond in the declaration mentioned. And so the defendant submits that *474the said contract in respect to tbe said land aforesaid, lias become, and is void, and at an end, by reason of the imposition practiced upon said defendants in respect thereof; and by reason of the failure of the said Elias and Mary E., or any one else, .to transfer and convey to the said defendants; or either of them, the fee in and to the claim or land aforesaid; and the consideration, whereon only the said bond sued on was based and founded, has failed, and said defendants ought not to be charged therewith”' — concluding with a verification and prayer for judgment, &c., and sworn to by said Grace.
A demurrer to this plea having been overruled, the plaintiff filed a replication thereto, as follows:
“Precl/wU non, because the plaintiff says, that although the said defendants, on the 13th day of July, 1850, made and entered into a certain contract with Elias Hooper, the payee in the note sued on, &c., and that said Elias and Mary E., his wife, were residents of the State of Louisiana; and that the said Mary E. was one of the children and heirs of Nathan Oloyes; and that she was entitled to the one-third interest in and by virtue of a certain pre-emption right _or claim, by virtue of the laws of Congress, which the said Nathan Oloyes, in his lifetime, had and held in and to the land described in said plea; and that said Elias never had and held any other interest than the interest aforesaid, and never pretended to have and hold any other right and interest in said land, except the light and interest which they had, and did fully convey to the said defendants all their rights, title, claim and interest to the land aforesaid, for the consideration of $2,500, and that the said defendants were fully apprised of all the rights that the said Elias Hooper and wife had in and to the land aforesaid, and all that they pretended to have; and all and every part of their rights were fully made known to said defendants at that time; and at the- time it was fully made known to said defendants, that said lands were in litigation, and that there was risk in the purchase of said right; and hence, said right was sold for the small sum of $2,500; and the said defendants both being lawyers, *475and understanding fully tbe claim and rights of tbe said Elias and wife, to said land; and tbe said Elias, then and there, fully exhibiting his power of attorney, from his wife, Mary E., to him, to sell and convey her interest therein; and after fully examining the same, with a knowledge of all the facts, made the purchase; and that said deed and said power of attorney, copied into said plea, are true copies of the power and deed then made; and that they conveyed all the rights of the said Elias and wife, that ever were agreed to be conveyed; and that the said deed fully contains the contract and fulfils the same; and that they never pretended to convey, and never contracted to convey, any thing but the half-interest of the said Elias and the said Mary E., in and to the land aforesaid; and if there were any mistakes, it was wholly and solely the fault of the defendants, for they drew the said deed to their own satisfaction — and the said Elias never made" any pre-tence, in any manner whatsoever, but exhibited his power of attorney; and the defendants agreed to give $2,500 for their own interest, and were to risk all the consequences of the suit then pending, (a.) And if there were any defects in the said deed or power of attorney,- the said Mary E.4 during her life, and the said Elias, were willing to make them good;-and if they were not rectified, it was solely owing to the defendant’s laches and neglect — and that said Mary E. never acknowledged said deed in said plea mentioned, except as alleged in said plea; and if there is any defect or illegality in said acknowledgment, or signing, it was wholly and solely owing to the laches -and neglect of the said defendants, for they both being lawyers, held that said signing and acknowledgment of said Mary E., was good and valid inlaw, and fully accepted the same, informing the said Elias and Mary E. that the same was good and valid in law; and that they, the said defendants, never desired the same altered or amended during the said Mary E.’s lifetime. And that said land, so conveyed as aforesaid, is held adversely, and was so held at the time of making said deed; and that said Grace & Waters were fully advised of the manner in which said land was held when the said contract *476and deed were made; and made tbe contract aforesaid with a full knowledge of adverse claims to tbe said land. Tbe said Elias and Mary, bis wife, never conveyed, and never have been desired or requested to convey, and never were, by said contract, to convey any other interest than that mentioned in said deed; and if tbe right of tbe land aforesaid has vested in tbe heirs of tbe said Mary E., it was, and is, owing entirely to tbe laches and neglect of tbe said defendants, in representing tbe conveyance aforesaid to be good, and in receiving and bolding tbe same to be good and valid until tbe death of tbe said Mary E. [b]. And tbe plaintiff admits that tbe said defendants paid tbe sum of §1,250, as tbe said plea alleged, and that Grace & "Waters then executed their note or bond to tbe said Elias for tbe sum of $1,250, due about tbe time in said plea alleged, and after tbe same became due and payable, and shortly previous to the 31st of March, 1851, at tbe county of Jefferson, tbe said Grace, acting for himself and Waters, made, and entered into, a new and other agreement with •- Sloton, the agent of the said Elias Hooper, and sold and conveyed a certain tract of land in tbe county of Jefferson to said Hooper, and then and thereby paid off and took up the said twelve hundred and fifty dollar note, so due and payable as in said plea alleged' — Ike numbers and description of tbe land are unknown to this plaintiff — and afterwards, the said Grace, acting for himself and Waters, canceled tbe said trade and tbe conveyance of the land aforesaid, and took into bis possession tbe said contract, deed and papers of tbe conveyance of the lands aforesaid, with tbe said Elias Hooper, and took up tbe said papers, and tbe same have not been recorded, and are now in tbe possession of the said Grace — and afterwards, to wit: on tbe 31st day of March, 1851, for tbe consideration of tbe said land, conveyed as aforesaid by Grace to Hooper, and for and in consideration of the canceling of said trade, which was a new trade and contract, and entirely different and new from the contract first entered into by the said Elias and wife, and tbe said defendants, the said Grace acting for himself and Waters, on tbe 31st March, 1851, executed to the *477said Elias Hooper, tbe said note or bond in said plaintiff’s declaration mentioned, and for a valuable consideration, him thereunto moving. And so the said plaintiff says, that there was another new and different consideration for the execution of the said bond, than that which is alleged in said defendant’s plea; and there was a good and valid consideration in law for the execution of said instrument sued on. And so the said plaintiff says the contract,, mentioned in said defendant’s plea, is not void; and, if itjjis, it is by the neglect, laches, and misrepresentations of the defendants,. Grace & "Waters, and not the fault of Hooper and wife, or of the plaintiff — and the plaintiff says there is another good, new, and valuable consideration, for which the said bond in the plaintiff’s, declaration described, was given■ — 'and, of this, the said plaintiff' puts himself upon the country.”
To this replication, the defendant, Grace, demurred, on the following grounds:
1st. Said replication is argumentative.
2d. Said replication is double.
3d. It tenders issues that are double, and not single, &c.
The court sustained the demurrer to the replication, the plaintiff rested; and final judgment was rendered, discharging both defendants; and plaintiff appealed to this court.
The counsel for the appellant insists that the demurrer to the-replication reaches back to the plea, and that it is bad, because the facts set up in it, do not show a total failure of a consideration for the bond sued on.
By sec. 75, chcop. 126, Digest, the consideration of a bond may be impeached by special plea, in the same manner as unsealed instruments; and by sec. 3 oha/p. 15, Digest, such defence may bein-terposed, by the maker, as against an assignee of the obligation.
In Wheat, use, &c., vs. Dotson, 7 Eng. Rep. 699, this court held that, to an action on a bond for the purchase money of land, a partial failure of consideration is the subject of recoupement, when the partial failure is in the quantity or quality of the land $ *478but otherwise, when the partial failure is in the title. That no defect of title, that does not amount to a total failure of consideration, can be set up as a defence to a suit for the purchase money: and perhaps not even then (the Judge, delivering the opinion, remarks) without eviction.
Intending, in the sequel, to attempt to show to what class of cases the rule applies, that the vendee may retain the purchase money, by showing a total failure of title and eviction, or its equivalent, we will, in the first place, endeavor to determine whether the plea in question sets out such facts as show a total failure of consideration.
Did the deed executed by Hooper, under the power of attorney from his wife, pass to Grace & Waters her interest in the land, which was the subject of the contract ?
The general principle of the common law is, that the laws of the place where real or immovable property is situate, exclusively govern in respect to the rights of the parties, the modes of transfer, and the solemnities which should accompany them. ' Story’s Conflict of Laws, sec. 424, p. 108. Also, as to the capacity of the contracting parties, Ib. sec. 430, 431.
The plea, in this case, alleging that the land, which was the subject of the contract, lies in Arkansas, our laws must govern its transfer, and not the laws of Louisiana, where, it is alleged, Mrs. Hooper resided.
By the common law, a married woman could only convey her real estate by a fine or common recovery — she could not convey by deed. 2 Kent Com. 150; 1 Hilliard on Real Prop. 121; 2 ib. 271; Dart’s Vend. & Purch. of Real Prop. 270, and cases collected in Note. 1. But, by statute, 3 and 4 Wm. 4, c. 74, a wife may convey by deed, with the husband’s consent, and with a private acknowledgment. Sarnie authorities last cited.
In most of the States of this Union, provision has been made, by statute, for the wife to convey her estate, by deed, with the consent of the husband, and the private examination of a magistrate. 2 Kent Com. 152, 153, 154.
*479By seo. 10, chap. 37, Digest of the Statutes of Arka/nsas, it is provided that, “A married woman may'convey her real estate, or any part thereof, by deed of conveyance, executed by herself and her husband, and acknowledged and certified in the manner hereinafter prescribed.”
Section 21, of the same chapter, provides that, “The conveyance of any real estate, by a married woman, or the relinquishment of dower inany of her husband’s real estate, shall be authenticated and the title passed, by such married woman voluntarily appearing before the proper court or officer, and, in the absence? of her husband, declaring she had, of her own free will, executed the deed or instrument in question, or that she had signed and sealed the relinquishment of dower for the purposes therein contained and set forth, without .compulsion or undue influence of her husband.”
Section 13 enumerates the officers who may take such acknowledgments in, or beyond the State; and section 16 requires the officer, taking the acknowledgment, to endorse a certificate thereof upon the deed.
Inasmuch as a married woman could not, by the common law,, convey her estate by deed, and can only do so by virtue of such statutes, it seems that a substantial deviation from the form prescribed by the statutes, will render the deed invalid. 1 Hilliard on Real Property, 122; 2 ib., note (a); Dart’s Vend. & Purch. of Real Estate 270, note (1); Thompson vs. Peebles’ Heirs et al., 6 Dana 387; Steel vs. Lewis, 1 Monroe 48; Harvey vs. Peck. 1 Munf. 518; Martin vs. Dwelly, 6 Wend. 9; Fowler vs. Shearer, 7 Mass. 14; Jackson vs. Stevens, 16 John. Rep. 110; Jackson vs. Cairns, 20 ib. 310; Depeyster vs. Howland, 8 Cowen 277; Lasseter vs. Turner, 1 Yerger Rep. 413.
In Elliot et al. vs. Peirsol et al., 1 Peter’s Rep. 338, the court said: “By the principles of the common law, a married woman can, in general, do no act to bind her; she is said to be siibpotes-tate viri,4 and subject to his will and control. Her acts are not like those of infants, and some other disabled persons, voidable *480only: but are, in general, aclsolutely yoid, ab initio. In Vir.ginia and Kentucky, tlie solemn modes of conveyance by fine and common recovery, have never been in common use; and, in those States, the capacity of a feme covert to convey her estate by deed, is the creature of statute law: and to make her deed effectual, the forms and solemnities, prescribed by the statutes, must be pursued.”
To the same effect, is Hepburn vs. Dubois, 12 Peters 345.
We think it may safely be said, upon the weight of these authorities, and many others of like effect, referred to in them, that had Mrs. Hooper joined personally in the execution of the deed in question with her husband, without acknowledging its execution before the proper officer, on a separate examination substantially in the mode prescribed bj^ our statute, the deed would have been null and void as to her and her heirs.
It must be equally unquestionable, that, if she could make a power of attorney authorizing her husband to execute the deed for her, the execution of the power should have been acknowledged in the same mode-in which the statute requires her to ¡acknowledge the execution of the deed itself; otherwise, the whole purpose of the statute might be defeated by resorting to powers •of attorney, and a wide door opened for impositions upon married woman. In this case, the execution of the power was not ¡so acknowledged.
But could Mrs. Hooper empower her husband to convey her interest in the land, as her agent ?
Daüt, in his work on Vendors and Purchasers of tieal Estate, ■says any assurance of a married woman’s interest in real estate, ¡executed under a power of attorney, seems to be inoperative.
In Yennont, by statute, the wife may convey her estate, by deed of herself and husband, and her separate examination and -acknowledgment are made necessary, and required to be certified upon the deed. In Sumner vs. Conant, 10 Vermont Rep. 9, land was devised to Martha "Wentworth, wife to John Wentworth, and ¡she and her husband executed a power of attorney to an agent to *481convey tbe land, and tbe power was executed, but tbe court held that tbe conveyance did not pass her interest in tbe land, because sbe could not make tbe power. There, as by our statute, tbe right of persons generally to convey by power of attorney, is recognized; but, upon principle, it was held that tbe provisions of tbe statute, in reference to conveying by power of attorney, did not apply to married women.
In Birdsly vs. Flint, 3 Barbour’s Sup. Court Rep. 510, it was said that a married woman could not appoint an agent. That, if sbe were, under her band and seal, to appoint her husband her agent to dispose of her land, and be were to act under tbe power, the contract would be void at law, and tbe appointment of an agent to do a void act, would be void also.
In Steel vs. Lewis, 1 Monroe 48, the court said that until tbe passage of the act of assembly, on the subject, on tbe 1st of February, 1812, there was no provision existing in Kentucky permitting a feme covert to convey by letter of attorney, and hence tbe conveyance of her estate, by power of attorney, prior to that time, passed no title.
In a note to Greenl. Ormse, vol. 2, p. 24, it is said that tbe wife cannot convey by attorney. See also, Linsley vs. Brown, 13 Cowen Rep. 192.
StoRV, in his work on Agency, sec. 6, p. †, 8, says, “ Married women ordinarily are incapable of appointing an agent or attorney ; but where a married woman is capable of doing an act, or transferring property or rights, with the assent of her husband, there, perhecps, sbe may, with the assent of her husband, appoint an agent or attorney to do the same. So with regard to separate property, sbe may, perhaps, be entitled to dispose of it, or to incumber it, through an, agent or attorney; because, in relation to such separate property, sbe is generally treated as a feme sole. I .say, perhaps, for it may admit of question, and there do not seem to be any satisfactory authorities directly in point.
Whether a married woman may join with her husband in. ' making a power of attorney, acknowledging it in due form on a *482separate examination, authorizing the sale and conveyance of her interest in land, by an agent, is a question that does not arise in this case, and is not intended to be decided: but that she can constitute her husband an agent to sell and convey her estate, in view of the above authorities, and upon principle, is exceedingly questionable.
Aside from this, the power of attorney set out in the plea, in this case, does not contain any words, importing an-intention on the part of Mrs. Hooper, to empower her husband to sell and convey any land, or interest in land: and it would require a lati-tudinous construction, not warranted by authority, to derive any such power from the language used in the instrument. See Story's Agency, chap. VI
Moreover, the power of attorney is not under the seal of Mrs. Hooper, which is necessary to authorize the execution of a - deed by an agent. Story's Agency, section 49, p 49/ ib., sections 291, 2S2.
On the grounds above stated, the deed executed by Hooper, in the name of himself and wife, under the power of attorney, as set out in the plea, was null and void, as an act of Mrs. Hooper, and did not pass to Grace & "Waters any interest of hers whatever in the land. As to her and her heirs, the deed was not only void at law, but the authorities above cited show that a court of equity would not compel her, or them, to a specific performance of the contract..
But it may be said that the deed was valid as the act of Hooper, the husband, and conveyed to Grace & Waters any interest he may have had in the land; and, therefore, constituted some consideration for the bond sued on.
According to the allegations of the plea, what interest had he in the land ?
Where the wife is seized of an inheritance in land, the husband is entitled to the rents and profits during their joint lives. 2 Kent Com. 129.
But, in this case, the plea alleges that at the time Hooper con*483tracted to convey to defendants, and afterwards, to the death of the wife, the land was in possession of others, claiming under adverse titles, and that defendants derived no rents and profits therefrom.
"Was Hooper a tenant by the curtesy ?
"We have no statute on the subject -of the -curtesy of the husband in the wife’s land.
By the common law, tencmcy-by the curtesy, is an estate for life, created by the act of the law. When a man marries a woman, seized at any time dvrring the coverture, of an estate of inheritance in severalty, in coparcenary, or in common, and hath issue by her born alive, and which might, by possibility, inherit the same estate as heir to the wife, and the wife dies in the lifetime of the husband, -he holds the land during his life, and it is immaterial whether the issue be living at the time of the seizin, or at the death of the wife, or whether it was born before or after the seizin. 4 Kent Com. 289; 1 Hilliard 110, 111.
Four things are requisite to an estate by the curtesy, viz: marriage, actual seizin of the wife, issue, and death of the wife. II.
The wife, according to the English law, must have been seized in fact and in deed, and not merely of a séizin in law of an estate of inheritance, to entitle the husband to his curtesy. 4 Kent 30.
The circumstances of this country have justly required some qualification of the strict letter of the rule relative to a seizin in fact by the wife; and, if she be owner of waste, uncultivated lands, not held adversely, she is deemed seized in fact, so as to entitle the husband to his curtesy. The title to such property draws to it the possession; and that constructive possession continues in judgment of law, until adverse possession is clearly made out. 4 Kent 30; Jackson vs. Sellick, 8 John. Rep. 262; Green vs. Siter et al., 8 Cranch 229; Davis et al. vs. Mason, 1 Peters Rep. 503.
In New York, the husband of a woman who is either heir or devisee, but has never entered, shall not have curtesy. It is said *484tbe requisition of actual seizin is limited to these two cases, and is not applicable where the wife claims under a deed. 1 Hilliard 112, sec. 8; Adair vs. Lott, 3 Hill 182; Jackson vs. Johnson, 5 Cowen 98.
The plea, in this case, sufficiently shows the marriage of Hooper and wife, issue, and the death of Mrs. Hooper. It alleges a want of seizin in fact, and possession of the land by others, claiming under adverse titles, at the time and ever after Hooper contracted to convey to Grace & Waters; but it fails to allege that there was no seizin in fact prior to that time and during the coverture. The plea undertakes to show a total failure of title and consideration, and should have shown that there was no seizin in fact, or its legal equivalent, at any time during the coverture, provided the seizin in law was sufficient.
Does it show a want of such seizin in law as to cut off the husband’s curtesy? In other words, does curtesy attach to a preemption right in land?
There is no such estate in land, known to the common law, a& a pre-emption right. It is the creature of statutes, passed by Congress, to encourage the settlement of the public lands. It is a preference right to purchase land of the government, arising where the settler has complied with all the conditions prescribed by law, to entitle him to such preference. It seems, from the allegations of the plea, that Nathan Cloyes had such a pre-emption right in the tract of land in question; and that by his death, it was cast, by descent, upon Mrs. Hooper, and his other heirs.
It seems that the right of the husband to curtesy has been extended by modern decisions.
In Davis et al. vs. Mason, 1 Peter's Rep. 507, the court said: “A husband, formerly, could not have curtesy of a use, that is, where his wife was cestui que use, (Perkins, Curtesy, fo. 89), and this continued to be the law down to the time of BaeoN Gilbebt-(Lane of Uses mid Trusts 239): at present, it is fully settled in equity, that the husband shall have courtesy of a trust, as well as a legal estate, (2 Vern. 536; 1 P. W. 108; Atk. 606;) of an equity *485of redemption; a contingent use, or money, to be laid out in land.” And so says Mr. EjcNt, 4 Com. 22-30.
It may be safe to follow sucli lights as far as they go, but it is the part of wisdom, perhaps, to stop where the lights give out. ¡
"We have not been able to find any decision that the husband is entitled to curtesy in a pre-emption right of the wife, and we are not disposed to be the first to break new ground in his behalf
The conclusion is, that talcing the allegations of the plea to be true, as on demurrer, Grace & Waters took nothing by Hooper’s deed to them, and that the consideration, upon which the bond sued on was executed, -wholly failed; and that the plea, if unanswered, is a bar to the action.
The replication to the plea, is next to be considered.
That the substantial allegations and matters of the plea might have been put into a more condensed form, is not to be denied; and that its redundancy furnishes some excuse for the unusual character of the replication, which is more like an answer to a bill in chancery, than a common law instrument of pleading, is equally true
That the replication contains much surplusage, is unquestionable. But surplusage, by which is meant matter that is altogether-superfluous, does not, in general, vitiate the pleadings, even in point of form: the maxim being utile per inutile non vitioMvr. In such cases, the unnecessary matter will be rejected by the court, and the pleadings will stand, as if it were struck out, or had never been inserted. Gould. Plead., chap. 3, sec. 110. But where a party pleads unnecessary matter, which shows that he has no cause of action, or no legal defence, the matter thus pleaded will be fatal to that which would, otherwise, have been good. Ib., sec. 171; Martin et al. vs. Warren et al., 6 Eng. R. 285.
As to dirplicity in the pleadings, which follow the declaration, the rule of the common law is, that every plea, or replication, must be simple, entire, connected,, cmd confined to a single point, i. e., a single ground of complaint or defence. Gould. Plead., *486 chap. 8, part 1, sec. 3. But tke single point, to which plea, replication, &c., is required to be confined, need not, as of course, consist of a single fact; for several connected facts may be, and frequently are, necessary to constitute a single complete ground of demand or defence. Ib., sec. 9; 1 Chit. Plead. 649-50.
Duplicity, in a plea or replication, consists in its containing two distinct matters, either of which would be a bar to the action, or answer to the plea. If a replication contain several distinct matters, -but one of which is an answer to the plea, the others may be stricken out as surplusage. Kellog & Kenneth vs. Miller & Rogers, 1 Eng. Rep. 468.
If the replication in this case contains no answer to the plea, the demurrer to it was properly sustained. If it contains one distinct and good answer to the plea, the demurrer should have been overruled, the surplusage stricken out, and the defendant required to respond to the balance. If the replication contains two or more distinct matters, cither of which is a good answer to the plea, it would be subject to the objection of duplicity, but what would be the effect of such duplicity, under our practice, need not be decided in this case, unless it be found that the replication in question is double.
In view of these general rules, the replication will be analyzed.
It is difficult to separate it into distinct parts, in consequence ■of the fact that several matters are repeated,4 in different forms, in several places, in the replication.
But the whole replication may be divided, for convenience of analysis, into three parts : 1st, from the beginning to the letter [a] in brackets; 2d, from a to (b); 3d, from b to the conclusion.
Part 1st, in substance, after admitting various allegations of the plea, in reference to the contract, seems to be intended as a denial of all fraud and misrepresentation on the part of Hooper, in making and executing the contract for the sale of his wife’s interest in the land, with the defendants — with affirmative aver-ments that he acted in good faith, exhibiting his power of attorney to act for his wife, to defendants, “who were lawyersand *487that the interest of himself and wife in the land, and the condition of the land, were truly represented, &e.
There are some allegations of misrepresentations and imposition in the plea, not as to the interest of Mrs. Hooper in the land, nor as to the condition of the land in regard to adverse titles, but as to Hooper’s power to sell and convey the interest of his wife.
Had these allegations in the plea been so material that the plea would have been bad without them, a denial of them, in the replication, would have been a good answer to the plea.
In order to a full understanding of what is understood to be the gist of the plea in this case, it may be well, at this point, to attempt to show to what class of cases the rule applies, that the vendee may retain the purchase money, by showing a total failure of title and eviction, or its equivalent.
Where a party contracts for, and receives a deed without covenants of warranty, and the title fails, he cannot, on that account, avoid the payment of the purchase money, because he has not thought proper to protect himself by obtaining covenants of war.-ranty, unless fraud, or its equivalent, has been practiced upon him. Rawle on Covenants for Title, 607, 608, and cases cited.
But where the purchaser has taken a deed, with general covenants of warranty, and there is a total failure of title and an eviction, or its legal equivalent, and the vendor sues for the purchase money, the purchaser may avail himself of the jslea of failure of consideration, and will not be forced to pay the money, and then, resold to a cross action upon the covenants of his deed to recover it back. See Ha/wle on Covenants for Title, caption “ The Purchaser’s Bight to Detaiw the Purchase MoNet,” etc., p. 604 to 782, where the authorities on this subject are collected, and clearly and ably reviewed.
In this case, the plea does not allege that defendants contracted for a deed with covenants of warranty, but simply for a deed conveying the interest of Mrs. Hooper and her husband in the land. Had such a deed been legally executed to them, they could not have resisted the payment of the purchase money, on the *488ground that the pre-emption right failed, or turned out to be invalid, without alleging and proving that fraud was practiced upon them in making the contract. In that case, fraud would have been the gist of the plea, and its denial, a good replication.
But, in the case now before us, the gist of the plea is, that there was a failure on the part of Hooper to make to defendants a legal and valid conveyance of the interest which lie contracted to convey to them in the land: and hence, the allegations of fraud are immaterial, and their denial or avoidance in the replication, mere .surplusage.
Pa/rt 2d. A number of the allegations in jpart 2d, of. the replication, are substantially the same as those embraced in part 1st, above disposed of. There are two features, however, in part 2d, that require consideration. IHrét, It is alleged, in substance, that if the deed, executed by Hooper to defendants, was defective, Mrs. Hooper, during her lifetime, and her husband, were willing to execute a valid deed, but that defendants did not desire or demand it. But no tendor of a valid deed to the defendants is averred.
According to the decision of this court, in Smith vs. Henry, 2 Eng. Rep. 207, overruling Byers & Miniken vs. Aikin, 5 Eng. 419, and Drennen vs. Boyer & Clark, ib. 497, it was the duty of Hooper to tender to defendants a valid conveyance, before he was entitled to the purchase money. This feature of the replication is no answer to the plea.
The second feature of part 2d, of the replication, avers, in substance, that defendants accepted the deed executed to them by Hooper, with a full knowledge of the character of the power of attorney, under which he acted for his wife, and that they retained said deed, without objection as to its validity, until after the death of Mrs. Hooper.
The plea alleges that Hooper contracted to make to defendants a valid conveyance, and failed so to do. Does it excuse him for failing to comply with his contract, that defendants, as well as himself, perhaps, were mistaken in reference to his legal power *489to act for liis wife, and on account of such mistake, accepted an invalid deed?
Hooper was as much bound to know the law as the defendants. If he knew in fact that he had no legal power to act for his wife, he perpetrated a fraud on the defendants in attempting to convey for her. If he did not know that he had not legal authority to act for her, he simply labored under a mistake of the law. The defendants had no motive to cheat themselves, by accepting an invalid conveyance;' and must, therefore, have acted-also under a mistake. The mistake, then, to put it upon the fairest ground for Hooper, was mutual, and can hardly furnish an excuse for his failure to comply with his contract. See The State vs. Paup et al., 13 Ark. Rep. 129.
Pa/rt 3d. The third and last division of the replication alleges, in substance, that, at the time the contract was made, defendants paid Hooper $1,250, and gave him their bond for $1,250, balance of the purchase money, as alleged in the plea. That, after the maturity of the bond, Grace, bjr agreement with the agent of Hooper, sold and conveyed to him, a certain tract of land, and thereby paid off and took up said bond; that afterwards, Grace, acting for himself and Waters, canceled said trade, and the conveyance of the land aforesaid, and took into his possession his title papers, &c.; and, thereupon, for the consideration of said land so conveyed by him to Hooper, and for, and in consideration of the canceling of said trade, &c., executed to Hooper the bond sued on: “ and so the plaintiff says that there was another new and different consideration for the execution of the said bond, than that which is alleged in defendant’s plea: and there was a good and valid consideration in law for the execution of the instrument sued on.”
Treating this part of the replication • as setting up affirmative matter in avoidance of the plea, it is not good.
Had the bond for $1,250, which Hooper held upon the defendants, been executed upon a valid consideration, and binding upon them in law, and had they paid it by transferring to Hooper a tract of land, and afterwards thought proper to cancel the con*490tract, take back the land, and execute a new note for any amount that might have been agreed upon in consideration of the canceling of the contract, doubtless the new note would have been upon a good and sufficient consideration.
But, according to the allegations of the plea, the bond for $1,250, executed by Grace & Waters to Hooper upon the original contract, was for a consideration which had totally failed, and they were not legally bound to pay it. If they paid it by transferring a tract of land to Hooper, as alleged in the replication, they got nothing for the land: and if they gave the bond sued on to get the land back, they gave it for what, in contemplation of law, belonged to them, as they parted with the land in the first instance without any consideration.
But disregarding, as surplusage, every thing in the replication but the words: “The flaintiff says that there was another and, different consideration for the execution of the said Toond, than that which is alleged in the defendant's flea: and there was a good and valid consideration in la/w for the execution of the instrument sued on," concluding to the country, and.there is a substantial issue to the plea, denying, in effect, the truth of its allegations, and putting the defendant upon his proof.
The plaintiff might have put in a replication denying the truth of the material allegations of the plea in detail; or he might have adopted a more brief and comprehensive form, and denied, in general terms, that the bond sued on was executed upon the consideration alleged in the plea, or that the consideration, upon which it was executed, had totally failed, in manner and form, as alleged in the plea. Either of these modes of replying would have put the allegations of the plea at issue, and have been more direct, perhaps, than the language above copied.
The replication in this case is certainly not skilfully drawn, and departs widely from those nice logical rules, which constitute pleading a science; and though there is much surplusage in it, yet, under the rule that the bad does not vitiate the good, the demurrer to it was improperly sustained. See Johnson et *491 al. vs. Killian, 1 Eng. Rep. 172; McCoy et al. vs. Hill, 2 Littell Rep. 372.
Tbe judgment will be reversed, and tbe cause remanded, with instructions to the court below to overrule tbe demurrer to tbe replication, and permit tbe plaintiff to amend tbe same, if be thinks proper; and, if not, to treat it as an issue to tbe plea, regarding every thing else as stricken out as surplusage.
Note by the Cleek. — Mr. Justice Walker announced that be dissented from so much of tbe opinion as decided that tbe replication should be treated as an issue to the plea; but neglected to file a written opinion.