This action was brought by the administrator to recover certain lots of land sold by his intestate to defendant, John W. Elder, for $3,000 00, of which $2,000 00 had been paid. Defendants refused to pay the balance on account of alleged defect of title in the intestate to part of the land purchased. Bond for titles had been given. The condition of which defendants alleged the administrator could not comply with, on account of said defect in the titles, and that the part of the land to which the estate had no title was much more valuable per acre than any other, and that the amount so lost was worth $840 00.
The administrator testified that $2,000 00 of the purchase-money had been paid by the defendant. After the plaintiff had closed his testimony, defendants amended their plea by setting forth the facts as above detailed, having at first pleaded the general issue only, and moved for a non-suit. Plaintiffs then moved to rule out that part of the administrator’s evidence which proved payment of the first note for $2,000 00, as irrelevant. Plaintiffs motion was overruled. Plaintiff then demurred to the amended plea, and moved to strike it. This motion was also overruled. The Court granted plaintiff leave to amend his declaration so as to change it from a suit in ejectment to assumpsit to recover the balance of the purchase-money. Plaintiff declined so to amend, and *19the Court granted defendant’s motion for a non-suit. Plaintiff excepted : 1st. Because the Court erred in refusiug to rule out the evidence of the administrator as to payment of the $2,000 00 note for irrelevancy. 2d. Because the Court erred in overruling the demurrer to the plea, and 3d, in ordering a non-suit.
We think the Court was right in overruling the motion to strike the amended plea. This Court has decided that, under our system of practice, a defendant may set up an equitable defense to an action at law by plea, and the defense set up in this case was one, which a Court of equity, under the English practice, would take cognizance of. The ruling of the Court being right on this point, the evidence of the administrator as to part payment was relevant to the equitable defense set up by the plea. Upon the third assignment of error, however, we think the ruling wrong. The plaintiff had the right to go to the jury and make whatever defense was available to him as a defendant in equity whose action of ejectment was enjoined.
Judgment reversed.