
    Miraba Black vs. William Black; Thomas Black vs. The Same.
    
      Plaintiffs were the children of T. B. deceased, who by his will directed lands to be sold by his executors, for partition amongst his children: the executors agreed to sell certain of the lands to defendant and gave band to make him titles, and defendant with their consent gave notes to the plaintiffs, for the amount to which they would be respectively entitled out of the proceeds: Held that defendant, in actions on these notes, could not set up in defence the failure of the executors to make him titles, according to the condition of their bond.
    
    Thomas Black, the father of plaintiffs, by his last will and testament, directed that a tract of land, of which he died seized, should be sold by his executors and the proceeds divided between some of his children, amongst whom were the plaintiffs, John and James Black, who were appointed executors, agreed to sell the land to defendant, and entered into a bond to make him titles; in .consideration whereof, the defendant with die consent of the executors, gave to the plaintiffs the notes on which these actions were brought, being the amounts to which they were respectively entitled out of the proceeds of the sale, according to the provision of the will. These facts were known to the plaintiffs, and the defendant would have defended himself against these actions, on the ground that John and James Black, the executors, had failed to make him titles to the land, according to the condition of their bond. But the jury, under the direction of the court, found verdicts for the plaintiffs, and this was a motion for new trial, on the ground that there was a privity between the plaintiffs ■ and the executors, who sold the land for their benefit; that plaintiffs stand in the situation of the executors, having taken the notes with a perfect knowledge of all the facts, and that the consideration of the notes has failed and the defendant had a right to be discharged from the payment.
    
      Clcndinen and Hill, for motion.
    
      Williams, contra.
   1 he opinion of the court toas delivered by

Mr. Justice ■Johnson.

A general and very superficial view of the circumstances of these cases will remove all difficulty about the questions made in the brief. If we look to the nature of the contract, the consideration on "which the notes were given clearly was the execution of the bond by John and James Black to the defendant. The plaintiffs undertook for nothing else; they could not make the titles, nor could they enforce the executors to do so, and the law will not imply an undertaking to do a thing which the party has not the power to do.

The unreasonable consequences which must result from allowing this defence, is a sufficient reason for rejecting it. If it had prevailed and verdicts had been found for the defendant, he would have been discharged from the payment, and yet he might compel the executors to perform the condition of the bond. Motion refused.

Richardson, Hugep, Colcocfc,- and Cantt, Justices, concurred.  