White V. Chambers. peal to a civil magistrate it was his duty to see that repa ration was made, according to the nature and circumstances of the case. Rule for new trial, discharged. Present, BURKE, GRIMKE and BAY. Camden Dis trict, 1796. Failure of consideration, a good ground of defence a WILLIAM THOMPSON against DAVID M'CORD. DEBT on bond. The defence in this case was, that there was a defect in gainst a bond the title of the land for which this bond was given, or in given for the other words, a failure of consideration. consideration money of a It was stated and admitted in this case, that the bond on tract of land. such case, may Defendant in which this suit was brought, was given for the consideration money of a tract of land on the Congaree River, at a place called McCord's Ferry. shew that the title to the land at the time of sale was in a third person, although there eviction by title para mount. Mr. Johnson, counsel for defendant, offered to call withas been no nesses to prove that the title of the land for which this bond was given, was, at the time of the sale, in a third person; consequently, that there must be a failure of consideration, as the defendant had no right to sell or convey the premises in question. That Colonel Thompson who had sold this land had acted as an executor to an estate, and made an execu ́tory deed. His intention was, he stated, to shew that the land did not belong to plaintiff's testator at the time of his death, but to another. Mr. D. Deas objected to this kind of testimony, as irregular and inadmissible in this action, as it went to try the V. M'Cord. See 3d clause of the act of Limitations of Suits, &c. right of a third person not interested in the event of this Thompson suit. If this third person had a legal claim to the land, let him bring his action; the law was open to him for redress, and one of the clauses in the limitation act had expressly declared that no other claim should be admitted but by suit at law. That the deed from Colonel Thompson to the defendant McCord, contained a covenant of general warranty, and if there should be an eviction by this third person by title paramount, he would then be liable on this covenant for this consideration money and all damages. To this it was replied by defendant's counsel, that this defence was not set up in order to try the claim or title of this third person to the land, but only to shew that the executor was not entitled to the money mentioned in this bond, as the land was not the property of his testator in his life-time. This he said, would not give this third person a right to enter on the land; he must still bring his action, and recover before he would be entitled to his writ of possession. And if he chose to lay by till the expiration of five years after defendant entered, he would be barred by the statute of limitations. The defendant would then have a possessory right by statute, but none under the deed from testator's executor. BAY, J. who presided at the trial of this cause at Camden, refused to admit this testimony; as it appeared by defendant's own shewing, by production of his deed, that it contained only a single covenant, i. e. that of a general warranty, with which the defendant was content at the time of concluding the bargain for the land; and it is a well known rule of law, that a grantor is not liable on that cove nant, till an eviction by a third person having a title paramount. If there had been a covenant that granter was lawfully seised, &c. then, upon discovery of the defect of title, an action would lay on such covenant. A grantee is not obliged to wait in such case, till there is an eviction, 9 Co. 61. Wood. Conv. 403, 404. but may bring his action and give the defect in evidence. See the case of Pringle v. Executors of Witten, Bay's Reports, vol. 1. p. 256. But no such covenant as this latter one, was in the deed produced. He further observed, that this appeared to him not to be a contract executory, but one fully executed, which left the parties to their mutual remedies against each other. The case went to the jury, and they found for the plaintiff the amount of the bond. Mr. Johnson gave notice of a motion for a new trial on the ground of misdirection in the judge, and for refusing to admit the testimony he had offered. The case was accordingly carried up to the constitutional court of appeals at Columbia. Present, BURKE, GRIMKE, WATIES and BAY. April, 1796. Mr. Johnson, agreeable to his notice at Camden, brought forward his motion for a new trial, when nearly the same grounds were taken by him, which he had urged on the trial, with this additional ground, that the recitals in a deed of a good title was tantamount to a covenant that the seller was lawfully seised, &c. and that such recitals and the acknowledgment of the consideration money, raised such an implied covenant in law, as would permit the defendant to give evidence to the contrary, and shew that the grantor was not lawfully seised, &c. at the time of sale; which was opposed by Mr. Deas, upon similar principles to those he had offered at Camden, in support of the plaintiff's action. A majority of the judges, GRIMKE and WATIES, after hearing the arguments, were of opinion, that the testimony offered on the part of the defendant should have been permitted to have gone to the jury, upon the equitable ground of a failure of consideration. V. M'Cord. That it had been determined over and over again, that Thompson wherever there was a deception or a failure of consideration, it vitiated a contract from what cause soever it might arise. That this was a good ground to recover back money which See the case had been paid away on such a contract, which had failed; of The State v. Gaillard & others, Ante, So also in Handkinson's case, vol. 1. Bay's Rep. page 278. Kiley's edit. and if so, then it was equally as good a ground of defence, page 11. against a demand of money, where there was such a failure Gray and alleged. They admitted that the old law was as had been stated, that there must be an eviction by a third person, to entitle a defendant to go over against the grantor or person conveying, which made a circuity of actions necessary; whereas, the mode contended for by the defendant in this case, prevented the multiplicity of actions. That many modern improvements had been made upon the old law, and this appeared to them to be a wise one, which had been much encouraged lately by courts of justice. Rule for a new trial made absolute, but to be without costs, as the jury had found agreeable to the charge of the judge. CASES ARGUED AND DETERMINED IN THE CONSTITUTIONAL COURT OF APPEALS, OF THE STATE OF SOUTH CAROLINA, IN THE YEAR 1797. Charleston District,1797. Assumpsit for money had The Executors of JOHN ASHE, deceased, against The SPECIAL action on the case, for money had and re and received, ceived to plaintiff's use. &c. will lie for money paid It appeared in evidence in this case on the trial, that in the by mistake to year 1778, Joseph Ashe, the father of John Ashe the plain by a sheriff, a prior judg- tiff's testator, had sold a tract of land at Haddrill's Point, ment credit or, not know- in Christ Church parish, opposite the city of Charleston, to ing of a mort gige by which one John Berwick, now deceased, for the sum of 31,000. the lands sold and that it was pot satisfied. does not lose were bound, current money, for which Mr. Berwick gave his bond, and a mortgage of the land to secure the payment of the conA mortgage sideration money. It happened in the hurry and confusion its lien by not of the war at that day, that this bond and mortgage by being put on record; any some means or other got mislaid, and never were put upon terwards must record, (while on the contrary Mr. Berwick had his deed be subject to judgment af this prior in- of conveyance for the land, duly proved and recorded,) cumbrance. |