
    Administratrix of Jesse Carter v. T. and J. R. Carter.
    Columbia,
    May, 1829.
    Oil an agreement for the sale of land, the purchaser gave his note for the purchase money, payable by instalments at certain fixed periods, and the vendor agreed in writing to make titles to the purchaser, but no time was specified within which titles were to be delivered. Held, that the contracts of the parlies were mutual and independent, and that in an action upon the note, it was not necessary to prove a tender of titles.
    An outstanding title in third persons is no defence to an action upon a promissory note for the purchase money of land, unless it be a subsisting title, such as will deprive the party of the benefit of his purchase: It will not avail where the purchaser has gone into possession, and has a good equitable title.
    A defect in the title of the vendor cannot be set up as a discount in an action upon a promissory note for the purchase money of land, whilst the purchaser remains in possession under his purchase: Nor will a Court of Law entertain cognizance of such a defence in any case, where it cannot do equal justice to both parties. Vide Bordeaux v. Cave, and Westbrook v. M‘-Millan, post.
    
    Tried before Mr. Justice Richardson, at Chester, Spring- Term, 1829.
    This was an action of assumpsit on a promissory note. The principal defence was an entire failure of the consideration. The note had been given for the purchase money of a tract of land, for which the plaintiffs intestate had agreed in writing to make titles to the defendants, blit bad died without doing so ; and there was no evidence that titles hud ever been tendered. The defendants also relied upon a defect in the title of the intestate to a part of the land sold; and for the value of that part they claimed a discount. The additional facts necessary to full understanding- of the questions decided, sufficiently appear in the opinion delivered by the Court of Appeals. The jury found for the plaintiff, and the defendants moved to set aside their verdict as contrary to law.
    Eaves, for the motion.
    Mills, contra.
    
   Nott, J.

delivered the opinion of the Court.

The practice which has prevailed in our Courts, of permitting a defect or want, of title to land, to be given in evidence in the nature of a discount to an action on a note or bond, given for the consideration money, has led to great embarrassments, and introduced an uncertainty in our law, which a series of decisions for upwards of forty years has still left unsettled. Every invasion of a settled rule of law or practice gives rise to a variety of questions, which are not foreseen at the time, the solution of of which depends upon the application of the new rule introduced, and of which, perhaps, no two judges may entertain the same opinion; and thus it is, that we find no little ambiguity, not ,to say inconsistency, in our decisions on this subject. Instead, however, of going on to multiply the- difficulties, it is still to be hoped that some general principles may be laid down, by which our future decisions may be governed.

I will not attempt to go over the long catalogue of cases in which this doctrine is involved ; but will merely state such principles as they appear to me to have settled, and draw such conclusions from them as they seem to authorize, it has been decided that the seller of a tract of land cannot recover the consideration money, where the purchaser can show an outstanding paramount title in another. But then it must be a subsisting title, such as will deprive the party of the benefit of his purchase. So when the number of acres have fallen short of what were sold, or a part has been taken off by a paramount title,, the defendant has been allowed a deduction, pro tanto. But it is only in those cases where complete justice can be done between the parties, that a Court can well interfere.

Now what are the facts in this case 1 The plaintiff entered into a written agreement to make the defendants titles to a tract of land, in consideration of which the note, on which this action is brought, was given. He died shortly afterwards, and the title has not been made.

In the first place, I consider the contracts mutual and independent. No time is mentioned when the titles were to be made. On the other hand, the defendants undertake to pay the purchase money in two instalments, one third to be paid in about eight months after the contract, and the other two years after the first payment. It is manifest, therefore, from the different periods at which the respective contracts were to be performed, that neither of them is at all dependent on the other: and it could not be necessary, therefore, to prove that titles were made, or tendered to be made, to intitle the plaintiff to recover.

The whole case then resolves itself into the question, whether the plaintiff’s intestate not having made titles in, his life time, deprived his representatives of the cause of action for the consideration money.

Whether the defendants went into possession - under that agreement does not appear; but. we have a fight to presume that they did, as the contrary has not been alleged. It is not pretended that the vendor had not a good title. And the whole difficulty has arisen from his death, the land having descended to his minor children, who are legally incompetent to make titles. But the defendants have a good equitable title. They are in the enjoyment of the property. There is therefore no failure of the consideration on which the money was to be paid. And if any such apprehension exists, the defendants are not without relief. The Court of Equity, to which the jurisdiction of such matters belongs, is open to them, and-will afford all the relief which the circumstances of the case can require. The Court of Law’cannot compel the defendants to restore the possession of the land, nor the plaintiffs to make titles. And to allow the defendant the benefit of his defence would be, to relieve him from the payment of the money, and to give him the land also.

There is indeed another question raised in this case.- The plaintiff’s intestate entered into an agreement with his son, to give him land in Georgia in exchange for seventy-one acres of the land which he sold to the defendant, or to pay him a certain sum of money in lieu thereof, from whence it is inferred that he had no title to that part of the land. But I should draw a contrary conclusion from that fact. By accepting the agreement it is to be presumed that the son had relinquished his interest in the land. But however the fact may be, it furnishes additional evidence of the incompetency of a Court of Law to adjust the conflicting claims of the parties. The Court is of opinion that the verdict is correct, and the motion for a new trial must therefore be refused.

Motion refused.  