The appellants complain of the decree, because there is reserved out of the moneys which may be produced by sale of the premises, $2,000, on account of an incumbrance on part of the land, in favor of the board of supervisors of Holmes county, and a claim on another small fraction of the land claimed to be part of the estate of Susan A. Evans, and liable to be sold by her administrator for the benefit of her creditors.
Wofford and wife had sold the lands mentioned in the pleadings to Ashcraft and Owen for $2,000 cash and sixty-three bales of cotton, to weigh 500 lbs. each, to be delivered (one-third) twenty-one bales, 1st December, 1867; twenty-one bales 1st December, 1868, and twenty-one bales 1st December, 1869. In the deed of conveyance a special lien is reserved, to secure the fulfillment of these obligations to deliver cotton. Wofford and wife assigned the obligation, due December 1, 1868, to A. W. Donald, administrator. The other two obligations were assigned to E. M. Wyatt, the complainant, as collateral security for $2,500, money loaned by him to the appellants.
Ashcraft and Owen, in their answer, set up as defense against part of the debt claimed from them, that a portion of the land purchased by them was incumbered by Wofford and wife to the board of police of Holmes county, to the extent of $1,275, and that a suit was pending to enforce it. Also, that Wofford and wife derived title to another small portion of the land from the heirs of Susan A. Evans, deceased, and that her administrator had instituted proceedings in the probate court to sell the same for the creditors of her estate. *645They also allege that the appellants are insolvent, and, therefore, the covenants of their deed afford no indemnity for the threatened loss of these portions of the land.
The defense offered by Ashcraft and Owen rests upon well defined principles, which have been the subject of frequent discussion and application in this court. If the vendor has practised no fraud or deceit, a court of equity will not relieve from the contract to pay the price, on the ground of a defect of title, unless there has been an eviction. Vick v. Perry, 7 S. & M. 268. The principle had been stated in the earlier cases of Anderson v. Lincoln, 5 How. (Miss.) 284 ; so, also, Gilpin v. Smith, 11 S. & M. 129 ; Winstead v. Davis, 46 Miss. 786 ; Guice v. Sellers et ux, 43 ib. 56. The vendee has elected his security in the covenants of the deed, and is held to them, unless it is made satisfactorily to appear that they afford no indemnity by reason of the insolvency of the vendor.
Ashcraft and Owen allege the insolvency of the appellants, also the pendency of a suit by the board of police to foreclose their incumbrance, and proceedings instituted in the probate court by the administrator of Susan A. Evans, to turn the land, derived through her, into money for creditors. It is, perhaps, universally true, that a defendant who, by plea or answer, obviates a prima facie, case made against him by the plaintiff, by the adduction of new and affirmative matter, must sustain the one or the other by evidence. Such allegations are not responsive to the charging part of the bill. The defendant can take no advantage from such defense unless proved.
The cause was submitted, at the final hearing, on the answer of Ashcraft and Owen, the answer of McDonald, administrator, who claimed and exhibited title to one of the obligations by assignment, and pro confesso against Wofford and wife. No testimony is in the record tend*646ing to prove the new matter set up by Ashcraft and Owen. There was no predicate then upon which relief could be afforded them.
The allegation in the answer, that there is a prior incumbrance on a part of the lands, which the board of police is pressing by suit, is, if proved, a failure of consideration pro tanto, which ought to be allowed to Ash-craft and Owen, if, as averred, the appellants are insolvent. If, too, the estate of Mrs. Evans is insolvent, and a right exists under the law in her administrator to convert the land, which descended to her heirs, into money to pay debts, there would be a failure of title and, pro tanto, of the consideration of the debts, for which Ashcraft and Owen ought to receive credit, this objection extends only to a portion of the land. The averment of these-facts in the answer is no predicate for relief. They are utterly unavailing, unless proved.
If Ashcraft and Owen preferred this defense, in good faith intending to rely upon it, they were premature in going to final hearing, having made no preparation by proof to get the advantage of.
The decree is erroneous in another particular. The assignment of two of the obligations to the complainant was as a security for the debt of $2,000, which he had loaned the appellants. The sum due upon these obligations, as reported by the commissioner who stated the account, is largely in excess of the debt of the appellants to the complainant. When the complainant shall receive out of this collateral indemnity enough to discharge the debt of appellants to him, he has no further concern or interest in them. The decree ought to have been so ordered as to provide first for the payment of this debt to the complainant, and the suiplus should be paid over to Wofford and wife. If Ashcraft and Owen make a voluntary payment, which they should have opportunity to make, or if the money is produced by' sale, and there should be a surplus, it should go to the *647appellants. If Wofford and wife had at any time discharged the principal debt to the complainant, the assignment would have been annulled, and they would have been immediately restored to their original right to the obligations. When enough shall be raised out of these securities, either by voluntary payment or sale of the land, to satisfy the principal debt, the excess should be appointed to be paid to the appellants, instead of permitting the entire fund to go to complainant, and remitting the appellants to him for settlement, as to the balance. The decree ought to have been specific in giving that direction.
. There ought to be testimony ascertaining the value of cotton, at the respective times Ashcraft and Owen covenanted to make delivery. That testimony may be taken before the cause is referred, or the commissioner should be instructed to make the inquiry and report.
The cause ought to be remanded to the rules, so that proof may be taken as to the incumbrances on the title, set up in the answer of Ashcraft and Owen, so that justice may be done on that point.
For the errors herein indicated, the decree is reversed and the cause is remanded for further proceedings.