The plaintiffs in error, who were the defendants below, were sued- in an action of debt upon a title bond executed by one James Martin and the defendant Sarah, then called Sarah Martin. The defendants pleaded several pleas, to one of which, the seventh, a demurrer was sustained and they *323ask that the demurrer be visited upon the declaration, but which as to it was overruled by the court, and the first question which claims our consideration is whether the court ptoperly overruled the demurrer. The first objection to the declaration is that it does not aver the marriage between Sarah Martin and the defendant Johnson, and that it fails to show that Sarah was soiewhen she entered into the contract upon which the action is brought. The declaration, commences — “ John Collins, plaintiff in this suit, complains of Malaleel Johnson and his wife, Sarah Johnson, formerly Serah Martin, defendants in this suit,' in a plea that they render unto him,” &c. It then proceeds, “For that whereas the said defendant Sarah, together with one James Martin who is not sued in this action, and before her intermarriage with said Malaleel,” on &c., at &c. signed, sealed &c. the agreement sued on which is set forth. In assigning the breach the declaration again alludes to the marriage thus: “And the said plaintiff ip fact saith that the said James Martin and the said defendant Sarah, and the said defendant Malaleel since his intermarriage, have not regarded their said obligation so by the said James Martin and the said defendant Sarah made as aforesaid, and have not made or caused to he made to the said-plaintiff a good and lawful title free from all incumbrances to the said tract of land in the said bond described, &c. We think this declaration sufficiently shows the character in which the defendants are sued and the grounds upon which the husband is sought to be charged. It is certainly true that the declaration must allege all the circumstances necessary for the support of the plaintiff’s action. — 1 Chilty’s PI. 254-5, and that if husband and wife sue upon a debt due to the wife dam sola, or are sued fora debt due from her and contracted while sole, the declaration must show that they sue or are sued as husband and wife, and that the demand accrued to or against the wife before the marriage, but a distinct averment in the declaration other than in the commencement and the breach is not required. The forms given by Mr. Chitty, vol. 2, p. 463-4-6, sufficiently indicate this to be the rule. The declaration in the case of Strickland v. Burns, 14 Ala. 511, did not conform to these precedents; for there neither the writ nor declaration mentioned the plaintiffs as husband and wife. So neither did the case of Tanner v. White, 15 Ala. 798; for in that the parties were not *324sued as husband and wife, and the only intimation given by the court that they occupied that relation towards each other was in the breach. This was held insufficieht, but although this was a departure from the established precedents, I speak for myself when I say that I am strongly inclined to doubt the correctness of that decision, the declaration avering that the defendant, E. A. Read, made the note sued on while unmarried, and the breach stating that she .did not pay it whilst unmarried, “nor luts either of the defendants paid it since their intermarriage.” Whether this is not a sufficient averment on general demurrer, is a question which should it again arise, I should be disposed to look into. The declaration before us does conform to the precedents above refered to and which we regard sufficient, except it does not aver that Mrs. Johnson made the bond while sole and unmarried, but merely that she executed it “ before her intermarriage with said Malaleel.” We do not think that the pleader was bound to go on and negative every matter which might have rendered her .incapable of entering into a valid contract — such as that she was sane, had attained the age of twenty-one, or that she was sole. We must intend she was sole at the time of her intermarriage with the defendant Johnson, and the declaration avers that she executed the bond sued on before that period. — See Evans v. The State Bank, 15 Ala. 84-5.
There is, however, another question which remains to be considered, and which is not wholly free from difficulty. We allude to the point raised by the defendants not oniy in the form of an objection to the count, but also in the form of instruction from the court to the jury, in respect to the tender of a deed aud demand of title on the part of the plaintiff below. The condition of the bond is that that the obligors make or cause to be made to the vendee within a reasonable time a good and lawful title free from all incumbrances. In Wade v. Killough et al. 5 Stew, & Por. 450, it was held that one who becomes the vendee of real estate and takes a bond for title is bound to prepare and tender a conveyance to the vendor; and further, that if the vendee desires an abstract of title to enable him to prepare the conveyance, it is his duty to demand it of the vendor. We are not aware that this decision has ever been departed from in this court, and we think it conforms to the set-*325tied doctrine in this country. — 7 Smeeds & Marsh. Rep. 214. This the vendee lias not done in the case before us. But it is insisted that the fact alleged in the declaration, that the vendee lias been ejected by the vendor and others in an action of ejectment, dispenses with demand of title and puts the vendee in default. We do not think so. The declaration fails to show that the vendors cannot make or cause to be made a good title. In equity the vendee is considered the owner of the land, but at law the vendor before he makes a conveyance is the owner. He may bring ejectment against him and turn him out of possession, and the vendee must file his bill for a specific execution or a rescisión of the contract, as the circumstances may justify. The recovery in ejectment is not a breach of the bond, if the vendor has not otherwise been put in default. The vendor being regarded in the light of a mortgagee, is by his action but asserting one„.of the several remedies afforded the mortgagee as a means .-oRupalising his debt. This is sufficiently shown by the cases of Haley et al. v. Bennett, 5 Por. Rep. 452, and Chapman v. Glassell, 13 Ala. 50; see, also, Sugden on Vendors, 248; Archbold’s Law' oí Nisi Prius, 320. It is very clear then that the institution of the action against the vendee and his eviction by the vendor does not dispense with demand of title and the tender of a deed. Non constat, but the vendor would have made a tide or have caused one to be made had the vendee demanded it, and that a great while has elapsed since the execution of the bond does' not dispense with the necessity of action on the part of the vendee in putting the seller in default. But it is insisted that wm ought not to reverse for this insufficiency in the declaration, because the defendant had the benefit of the same matter under a plea putting directly in issue the ability and readiness of the obligors in the bond to make title and the failure of the plaintiff lo tender a deed. This position of the learned counsel cannot be upheld as a legal proposition. Had the declaration avered a tender of a deed to be signed and a refusal being a necessary averment, the plaintiff would have been required to prove it. if having made no tender he seeks to excuse his failure by an averment of the inability on the part of his vendors to comply, then this negative averment becomes material to his action, constitutes one of the grounds upon which it rests, and devolves upon the plain *326tiff the onus of making good the averment by at least prima facie proof. Mr. Greenleaf lays down the law to be, that where the establishment of a negative fact is an essential element in the plaintiff’s cause, he takes upon himself the burden of proving such fact not by plenary but prima facia proof. — 1 Greenl. Ev. § 78, (3d edit.) Overruling the demurrer and putting the defendant to his special plea, transfered the burden of proof from the plaintiff to the defendant, and thus imposing on him the proof which he would not otherwise be required to make, the legal intendment is that he was prejudiced thereby. We cannot therefore undertake to say the party was not injured by the action of the court upon the demurrer. It does not appear but that he may have been,■ and in such cases the rule established by this court requires us to reverse. — Haggerty v. Bradford, 9 Ala. 567; Falls v. Weissinger, 11 ib. 802; Morrison v. Judge et al. 14 ib. 182; Ex’rs of Robertson v. Allen, 16 ib. 106. There is nothing shown by the declarations in this case which takes it without the rule laid down in Wade v. Killough (5 St. & Por. 450.) There, as in this case, the undertaking to convey a good title was absolute. In that, the parties fix upon the time for the conveyance ; in this, upon a reasonable time. We do not see how this difference can affect the application of the rule, for what shall constitute a reasonable time can as well be determined upon by one of the parties as the other. Both that case and this are altogether distinguishable from the case of Williams v. Harper, 1 Ala. Rep. 502, in which the vendor agreed to make titles See. by a stipulated time (25th Dec. 1837,) “provided the defendant should succeed in making good his claim to said land ; and if he should he satisfied by the first day of April then next of the validity of his claim to the same, he was then (April 1837) to execute his bond for title. But if he failed to make good his title by 25th Dec. 1837, then he bound himself to pay $2500, with interest” &c. Here the obligation to make a title depended on a contingency known peculiarly to the vendor, and the court very correctly held that if he would avoid the payment of the $2500 on the ground that the vendee had tendered no deed, he shouid have notified him of the happening of the contingency. Here, the party absolutely engages to make or cause to be made a good title &c. These remarks are applicable to the declaration, for that, as we have seen, *327shows no excuse for failing to make a demand of title, or for not tendering a deed, the recovery against the vendee not being sufficient to dispense- with such demand and tender. When we come to the facts of the case upon which the charge was asked, we are advised that the vendors had but one-seventh interest in the land, and that the other six-sevenths were in the heirs of Peter Martin, some of whom are infants — from which it would appear that no title, such as required by the bond, could have been made by the vendors-to the purchaser. The question then arises, upon the charge asked for by the defendants and refused by the court, is it necessary to make a demand of title and tender of a deed to be executed .by the vendor, when it is clear that they cannot convey such a title as the bond stipulates they shall convey. The purchaser is entitled not only to a deed, but to a deed which shall convey a title free of all incumbrances, and for this the bond itself provides. — Cullum v. The Bank, 4 Ala. 21; Hunter v. O’Neal, 12 ib. 37. The vendors have had twelve years since the execution of the bond to procure title, and none has been procured. Now we do not think the law requires of a purchaser to tender á deed to be executed, when if executed he may refuse to accept it; nor is a demand in such case necessary, since it must prove equally vain and useless, the parly being wholly unable to -comply. The law will not make the rights of parlies to depend upon such unmeaning ceremony— will not require him to do that which will be vain and fruitless when done. ‘‘Lex nemincm cogit ad vana sou inulilia,” is the maxim, alike consonant with law and common sense. — Broom’s Legal Maxims, 117, note k. We conclude therefore that if reasonable time had elapsed for the vendor to perfect her title and she had failed to do so, and at the institution of this suit she was utterly unable to make or cause to be made a good title, such as the bond requires, there was no necessity for demand of title or tender of a deed. — Blann v. Smith, 4 Blackf. R. 517; Garnett v. Yoe, ante 74. The refusal of the court to give the charge requested was therefore correct.
As to the seventh plea, it is perhaps unnecessary that we should say more than that in our judgment it is legally sufficient to bar the action. The plea asserts that after the making of the bond declared on, “James Martin by deed conveyed the fee simple title to said land free from all incumbrances to the plaintiff, *328and that said deed was accepted by said Collins as a full compliance with and fulfilment of the stipulations of said bond, and that afterwards said Collins released and discharged said Marlin of and from said deed of conveyance and all the covenants therein contained,” &c. The averment of release from the covenants in the deed is perhaps unimportant, as the pica would be good without it, but it at most is surplusage. It is too clear to admit of argument, that this plea avering as it does a complete compliance with and fulfilment of the condition of the bond, in the conveyance by the vendor and acceptance by the vendee of the title contracted for, is unquestionably good, but we should not be disposed to reverse for sustaining the demurrer to it, were the declaration sufficient, since there were other pleas upon which the party might have made and did make all the defence he could have made under this: Pleas which required less proof to sustain them than would have been required in support of this, but of the same kind. Be this as it may, the case must be reversed and remanded for the insufficiency of the declaration — and the parties can be allowed to amend their pleading.
Judgment accordingly.