It may be conceded that a purchaser of land is entitled to an abatement pro tanto of the purchase price for any injury done to the land by the vendor before the sale is executed by conveyance. 39 Cyc. 1578, and cases cited. But where, as here, the vendors unlawfully retain possession of the land after the execution of their deed to the purchaser, and thereafter destroy or convert the growing crops, it cannot be said that there is any sort of failure of consideration; for the consideration was unimpaired when it passed by conveyance to the defendant. For such a destruction or conversion an action in tort undoubtedly lies in favor of the purchaser, but we know of no authority for the theory that the purchase money can be abated as for a partial failure of the consideration, and the theory is radically unsound. The demurrer to plea 1 should have been sustained.
A plea of recoupment, as distinguished from a plea of set-off, "in effect alleges that the plaintiff is not entitled to recover the sum claimed because he failed to perform duties in relation to the transaction sued on which the law enjoined upon him, which failure had damaged the defendant; in other words, that the plaintiff has no debt or a less debt or demand than he claims." Grisham v. Bodman, 111 Ala. 194, 20 So. 514.
We think it quite clear that plea 2 sets up proper matter for recoupment, and, being in recoupment, the claim need not have been subsisting at the time plaintiffs filed their suit. Martin v. Hill, 42 Ala. 275. As mortgagors, and as grantors in the foreclosure deed, it was the legal duty of plaintiffs to deliver the land to the purchaser unimpaired as to its quantity, quality, and condition at the time of the sale and conveyance. The damages offered in recoupment spring directly from plaintiffs' violation of that obligation, which is implied by law from those instruments of conveyance. The demurrer to this plea was properly overruled.
Plea B, though not in statutory form, sufficiently shows that the demand offered as a set-off was subsisting at the filing of plaintiffs' suit, and was not subject to the grounds of demurrer assigned.
It is well settled, at least in actions at law, that a separate demand against one of several plaintiffs cannot be set off against a joint demand due to all of the plaintiffs. 34 Cyc. 729, 730. Those replications which invoked this principle were, however, in effect mere denials of the pleas which were predicated upon claims against the plaintiffs jointly. It was not prejudicial error, therefore, to eliminate them on demurrer.
Plaintiffs' replication of the statute of frauds, as against plea B in set-off, was not subject to demurrer; but the evidence shows that the statute of frauds was not applicable in any case, and the elimination of this replication was not prejudicial to plaintiffs.
The evidence shows that W. A. McRight, the husband, was the sole owner of the mortgaged land, and that A. E. McRight, his wife, had no interest in it other than inchoate dower. It will be presumed, therefore, that she executed the mortgage only for *Page 619 the purpose of releasing dower. In that case she has no interest in the surplus proceeds of sale, and is not entitled to recover in this joint action. And, both plaintiffs not being entitled to recover jointly, the trial judge could have given the affirmative charge for defendant. Bell v. Allen, 53 Ala. 125. If there were errors committed on the trial, they were errors without injury to plaintiffs, and their investigation is unnecessary.
Many of the 78 assignments of error are not stated nor argued in such a way as to require consideration, and we have treated only the decisive question presented by the record, and under our rule 45 (61 South. ix) we cannot justify a reversal of the judgment.
Affirmed.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.