Per CrRrAsi,
Mason, Chief Justice.The first error assigned in this case is, that there was no issue joined. The Supreme Court in Illinois, has decided, that where parties appear, and go to iritU^vitfiout any plea at all being but in, it is such an irregularity as will be cured after verdict, by the statute of amendments. Breese’s Reports, 14.— There appears to be good sense in that decision. But in the present case, the only defect seems to have been an omision of the similiter to o. plea of the general issue. This we have often decided to be no substantial error.
But the principal point relied upon to obtain a.reversal, is, that the court sustained the demurrer to the special pleli. The plea alleged that the promissory note, on which the suit was brought, was given for the purchase money oí a tract of land, which theWeféndants ⅛ error h&d bound themselves to convey to the plaintiffs in error, by a good warranty deed, upon the payment of said note, and that the said defendants in error had not made or tendered said deed. As a general rule, the vendor of real estate, cannot maintain his action for the purchase money, without having executed a conveyance, or. offered to *do so. The case however, is different, where the terms of the contract are such as to show a contrary intention in the parties. In this esse the defendants below had given their promissory note, negotiable «nder the statute. In the hands of an assignee the actionirtiight clearly have been maintained, without any regard to thel-ender of a deed. The legitimate inference therefore is, that the defendants‘belolv, intended the contracts to be independent, and such is the established ‘rule of law. See Sudden on Vendors, 180.
The judgment is affirmed.