
    SHELDON v. SIMONDS.
    Vendee’s protection against incumbrances — attachment—garnishee—setoff—substitutionjudgment in error.
    Where one purchases land and takes a conveyance, giving his note for part of the purchase-money, if the land is incumbered he may pay the incumbrance and set it off against his note.
    And if he be garnisheed as the debtor of his vender, the attaching creditor only takes the-place of the vender, and cannot compel payment unless the incumbrance is removed.
    The Court of Error reversing a judgment of the Common Pleas may render such judgment as the Common Pleas should have rendeted.
    Error to the Common Pleas. Simonds sued out a writ of attachment against one J. S. an absconding debtor, in January, 1832. The 1st of February, 1832, Sheldon was summoned in as garnishee, who answered, denying his indebtedness. Final judgment was had on the attachment against J. S. the 23d June, 1832 — after which proceedings were had to subject Sheldon, notwithstanding his denial of indebtedness. On the trial of the issue made up under the statute, it appeared in evidence that Sheldon purchased a piece of land of J. S. took a deed, paid most of the purchase-money, and gave a note for the balance, some time before the attachment. After the note was given, Sheldon discovered there was a judgment against J. S. which bound the land. In December, 1831, execution upon the judgment was levied upon the land; but before the sale or payment of the judgment, the summons was served on Sheldon as garnishee of the debt due by the note for the balance of the purchase. In March, 1832, Sheldon to disencumber the land and perfect his title, paid off the execution, which required a greater sum than was due J. S. on his note. On this state of fact, the Court of Common Pleas was of opinion the law was with the attaching creditor, and gave judgment against Sheldon for the amount of his note to J. S. and interest. To reverse which this writ is brought.
    Loomis, for the plaintiff in error.
    
      McConnel, contra.
   Wright, J.

The simple question here is, was Sheldon when summoned in as garnishee indebted to J. S. the defendant in attachment? The purchase he made was of the land; for that he gave his note. The conveyance to him of this land was subject to the lien of another for a greater sum than was due of the purchase-money. In justice and equity, then, he owed nothing until the incumbrance was removed, and J. S. could not, though the note was over due, compel him to pay without discharging the incumbrance — without that, there was a failure of consideration. The attaching creditor by operation of law was substituted to his debtor’s rights — stood in his shoes. He acquired no new right. If then this incumbrance and payment would have been good against J. S. it was equally good against Simonds. The judgment of the Common Pleas is reversed, and final judgment is rendered here against Simonds for costs, that being the judgment the Common Pleas should have rendered.  