
    LARKIN vs. THE BANK OF MONTGOMERY.
    L Vendee in possession, when sued for the purchase money, cannot resist & recovery, by shewing title in a third person.
    Error to the Circuit court of Macon.
    Assumpsit on a note, given for the purchase of land, tried before Pickens, J.
    Defendant below was in possession of the property, but resisted a recovery, on the ground, that the title was in another person, who had obtained the same by preemption, from the United States. The court charged, that there was no such failure of consideration, as would avail the defendant in this action. Verdict and judgment for plaintiff below.
    The charge of the court was assigned for error.
    Porter-, for plaintiff in error.
   ORMOND, J.

The defence in this -case, is, in substance, the assertion of a right to set up an outstanding title in a third person. This, the plaintiff in error, who is a purchaser from the trustees of the .sixth section, cannot be allowed to do. By the purchase, he was let into the possession of the lot, and cannot, while he remains in possession, be permitted, when sued for the purchase money, to defend himself, on the ground -that the vendor had not title to the premises. To enable him to do this, in a proper case, he must put the vendor in statu quo, by returning, or offering to return, the property. He cam not, by retaining possession obtained under, and by virtue of the sale, consider the contract as subsisting, and defend himself by showing a want of title.

We have, therefore, considered it unnecessary to en-quire into the effect of the patent offered in evidence,

^ There was no error in the judgment of the court below, and it is affirmed.  