
    Edward K. Chaplain, administrator of William R. T. Chaplain, vs. Parmenas Briscoe.
    The vendor of land, besides an express covenant of warranty of title, stipulated in the deed that, as he had not a complete title to a portion of the land conveyed, he would remit to his vendee at a price stated, per acre, when the note for the purchase money became due, for so much of the land as he was unable “ to show a complete title to ; ” the vendee assigned the deed and all his right and title under it to a third party, and the vendor assigned the note for the purchase money for .value to another party. The assignee of the note sued the original vende?; thereon ; and the latter proposed to set up, in defence thereof, a failure of consideration to the extent that his vendor had not title to the land sold. Held, that the vendee was not precluded by his assignment of the deed, and his interest in the land, from making the defence; and that the right to make the defence existed against the note in the hands of any assignee of it.
    The covenant in a deed, that the vendor will remit to the vendee, at a stipulated price per acre, for so much land as the vendor may not be able to show title to, on the note for the purchase money, is a personal covenant that does not pass to the assignee of the vendee of his interest in the land, and is not waived by such assignment of the vendee’s interest; nor is the right of the vendee when sued for the purchase money, after he has parted with all his interest in the land, to set up the want of title in his vendor to part of the land sold, affected by the fact that his vendor’s deed to him contains also a covenant of warranty.
    Where names of persons are found on a deed in the usual place for subscribing witnesses, and they are not parties to the deed, they will be presumed to be witnesses to the instrument', though they are not stated to be such; and therefore, where such a deed is to be proved, they must be produced, or their absence legally accounted for.
    
      In error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge.
    Edward K. Chaplain, administrator of William R. T. Chaplain, sued Parmenas Briscoe upon two notes, dated February 8, 1832, and payable to John B. Conger on the 1st of January, 1838 ; one made by Thomas Briscoe and Parmenas Briscoe for $366-66, and the other made by Parmenas Briscoe and Thomas Briscoe for $609. A trial was had, and a verdict rendered for the defendant.
    The bill of exceptions shows that, on the trial, after these notes were read in evidence, the defendant offered a deed from John B. Conger to Thomas Briscoe, dated the same day with said notes, (Feb. 8, 1832,) reciting that the parties of the first part had, on that day, sold to said Thomas Briscoe three hundred and twenty acres of land, in Claiborne county, in township eleven, range two, east, the title to which was warranted generally. That, in consideration of the said land, the said Thomas Briscoe had given Conger six notes, signed by himself and P. Briscoe, for $356, each payable Jan. 1, 1833, ’34, ’35, ’36, ’37, and ’38. The deed then concludes thus : “ Now, it being well and perfectly understood, both by the said Conger and Briscoe, that there is a small portion of the within described land, to which the said Conger has not got a complete or a sufficient title; and the said Conger hereby promises, that if he should still be unable to show a complete title to the whole of the within described land, at the time when the last payment becomes due, that then, in that case, he will remit to the said Briscoe at the rate of five dollars per acre, for such portion of said land as he shall be unable, at that time, to show a complete title to.
    
      “ Signed-and sealed this day and year above written.
    John B. Congee. [Seal.]
    John ThatcheR,
    James Allison.”
    The introduction of this deed was objected to on two grounds; first, that Thatcher and Allison were subscribing witnesses, and must be produced to prove its execution; and, second, because it does not correctly describe either of the notes sued on. The objections were overruled, and the deed was admitted on proof of the handwriting of Conger,
    The defendant then offered to read the record of a similar deed from Conger to defendant, bearing the same date, and showing the sale of four hundred and six acres of land to P. Briscoe, the giving of six notes by P. Briscoe, signed by himself and Thomas Briscoe, for $609 each, due Jan. 1,1883, ’34, ’35, 36, ’37, and ’38, the admission by Conger of a want of title to part, and the same agreement to remit, at the rate of nine dollars per acre, if, when the last note should fall due, he should still be unable to show a complete title.
    The admission of this deed was objected to, on the ground that, by the statute, the copy is only evidence of the grant of the land, and is not evidence of the covenants contained in it respecting the note of Briscoe sued on. The objection was overruled, and the copy admitted in evidence.
    The defendant then proved by Isaiah Hudnall, that, long before 1825, and up to, that time, the father of witness was in possession of the north-east quarter and north-west quarter of section thirty-six, township eleven, range two, east, in Claiborne county, claiming the same by title derived from the United States government. ,
    The defendent then offered in evidence a deed from Jesse Hudnall, the father of said witness, to Jesse G. Hudnall and Joshua Hudnall, one the son and the other the nephew of witness, dated the 24th of August, 1825, for said north-east quarter, and north-west quarter of section thirty-six, township' eleven, range two, east.
    The plaintiff objected to this deed on the ground, that evidence of title in Jesse Hudnall should first be given. The defendant then offered a patent from the president of the United States to Jesse Hudnall, for the north-east quarter of said section, dated Sept. 4, 1820, but no patent was shown for the north-west quarter. The court then admitted the deed from Hudnall to go in-evidence.
    Defendant further proved, by Hudnall, that Conger paid witness rent for the said two quarter sections, in 1831, and had repeatedly admitted to witness that the Hudnall tract did not belong to him. Said witness also testified, that about eighty acres of the north-west quarter of section thirty-six was comprised in the tract conveyed by Conger to Thomas Briscoe, and that the tract conveyed to Parmenas Briscoe by Conger comprised about eighty acres of the north-east quarter of section thirty-six.
    The defendant then offered to prove, by J. B. Thrasher, that the plaintiff’s intestate got the notes from him, and knew of the defences that existed to them at the time he took them. This evidence was objected to, because irrelevant, and because it did not show notice to Hughes, who was a prior indorser on the notes. The evidence was admitted, and Mr. Thrasher testified that Mr. Chaplain, the intestate, got the notes of him; that he knew of the defences of the notes, and had apprized Mr. Chaplain of them; that witness and plaintiff’s intestate, and P. Briscoe had held conversations respecting the notes, and that Mr. Chaplain, after examining the deed to P. Briscoe, received, and after said conversations consented, to take the notes, saying, “ that he would try to make something out of Briscoe.”
    The plaintiff then offered a copy of an answer in chancery, by P. Briscoe, to a bill filed by Thomas Davis, in which Briscoe says, “ He admits that he purchased a tract of land in Claiborne county of Conger, and believes the deed is duly executed and recorded. This defendant admits that he sold the same land to John Grissom, but does not now recollect the time nor the amount. The consideration money was fully satisfied to this defendant by said Grissom. The title to the land was unsettled at the time of the purchase from Conger, and Conger’s deed contains a provision for a reduction of the price, in case of failure to make good the title. When this defendant sold the land to Grissom, he expressly refused to make a deed for the land, or to warrant the title; and the agreement was, that this defendant should assign Conger’s deed to Grissom by indorsement thereon; and defendant fully complied with his agreement in this respect with said Grissom, and, by writing indorsed on said Conger’s deed, assign the same, and all this defendant’s right and title thereto, to said Grissom, and delivered the same to said Grissom.”
    The plaintiff then offered in evidence a copy of a certificate from the land office at Washington, Missis., for the north-west quarter of section thirty-six. The certificate was offered to prove title in Conger; but the name of the person in whose favor the certificate is to issue is left blank, the name of Conger being written in pencil mark, and the register certifies on the back of it that it “ is at present suspended.” This certificate was objected to, and ruled out.
    The plaintiff asked the following instructions. 1. That if the jury believe, from the evidence, that defendant has assigned John B. Conger’s deed to him and all his interest therein to , John Grissom, the effect of such an assignment will be that Grissom, or, if he be dead, his legal representatives, have the right to sue in Parmenas Briscoe’s name, to recover damages for any breach of the covenants therein contained; and that Briscoe has thereby waived the right to use the covenant in said deed, as a defence to his note for $609.
    2. That Conger’s covenant is, that he will be able to show ^title on the day fixed, and in the absence of proof that Briscoe demanded him to show a better title, which he refused, if the jury believe from the evidence that Briscoe, and those claiming under him, have never been disturbed in the enjoyment of the possession from the date of the deed to the present time, they are authorized to presume that Conger was able to have shown a good title.
    Which charges the court refused to give, and gave the following charges prayed by defendant.
    1. If the jury believe, from the evidence, that Conger has failed to show or make a complete and sufficient title to the land, to which he admitted in his deeds to Thomas Briscoe and Parmenas Briscoe that he had not such title, then the jury must remit from the notes sued .on a sum sufficient to cover the amount of the land to which the title was defective, at the rate per acre stipulated in the deeds respectively.
    2. That the admission of Conger in his deeds that he had no title to part of the land, is conclusive evidence against the plaintiff on this suit of his want of title; and that the payment of rent by Conger, if the jury believe it, to the Hudnalls, is evidence of the title of the Hudnalls to the land.
    The jury found for the defendant, and the plaintiff moved for a new trial on the grounds ; 1st. That evidence had been improperly received. 2d. That evidence offered by the plaintiff had been improperly rejected. 3d. That the court erred in refusing the charges prayed by the plaintiff, and in giving those prayed by defendant.
    The motion was overruled, and the plaintiff brings this writ of error.
    
      W. S. Wilson, for plaintiff in error.
    1. This case has already been before the court. 5 S. & M. 198. On the former argument it was contended by the plaintiff in error, that Briscoe could not avail himself of the covenants contained in Conger’s deed to him, to defend the action, for the reason that the covenant had passed with the land to Grissom.
    It is now insisted, that whether it be a covenant running with the land, or merely a personal one, it was in either view capable of being assigned in equity by a formal written transfer; and we submit, in view of the admission made by Briscoe in his answer in chancery, that he had assigned the deed and all his interest therein to Grissom, that the defendant is shown to have waived all right to make the defence which he now urges. This point Mr. Wilson argued at length, insisting that Briscoe had assigned all his right of defence, with the deed, to Grissom.
    2. But it may be urged, that what Conger was to do, upon the breach of his covenant, was so personal to Briscoe, that it could not be assigned. That the consequence to ensue from the breach, was a mere right in Briscoe, and nothing more, to be released from the note to an extent proportional to the failure of title. The obvious answer is, Could not Briscoe waive in favor of Grissom his right to defend the note, and agree that Grissom should receive the whole amount, or so much thereof as he, Briscoe, apart from his assignment, could have-claimed tobe released from? It would seem plain that he could, and that whether the assignment were made after or before the breach. If it were made after the breach, then, as Conger had neither perfected the title nor performed the alternative by remitting nine dollars per acre, it would seem clear that if a failure to keep a covenant can give a cause of action, that a right of action had accrued against him in favor of Briscoe. Could not he transfer to another the right to receive the fruits of that action?
    After the covenant was broken, Briscoe had two modes of availing himself of the consequences of the breach; either to sue on it for damages, or use it as a defence to the note. The election of either would have been an abandonment of the other. He has elected to assign to Grissom, thus giving him the right to sue for damages, and has thereby waived the use of the covenant in the other way.
    3. If the assignment of the covenant were made before its breach, and whilst Conger was still the holder of the note, the result would still be the same. The effect of it was to substitute Grissom to Briscoe’s rights, the latter agreeing to pay his note at all events. This was the necessary consequence of investing Grissom with the ownership of the covenant. The manner in which Conger should discharge himself from liability, if there was more than one way of doing so, was a matter of arrangement between,, himself and Grissom, when the latter should apply for a compliance with the terms of the contract.
    4. The deed from Conger to Thomas Briscoe ought not to have been admitted in evidence. 1st. Because it was not proved by the subscribing witnesses, nor was their absence accounted for, and proof made of their handwriting. 2d. The covenant in the deed applied to a note differing in amount from either of those sued on.
    5. The copy of the certificate from the land office should not have been rejected. Parol proof had been received of possession by Hudnall of one of the quarter sections to raise the presumption of title in him. The certificate would have rebutted that presumption, showing as it does that Congpr had availed himself of the relief granted by the act of congress, by surrendering the original certificate, and paying the balance of the purchase money. The certificate, coupled with the fact of the long, uninterrupted possession of Conger and those claiming under him, would have afforded strong proof to the jury that Conger was able to have performed his covenant, as regarded that particular fraction of the land.
    6. The testimony of Mr. Thrasher was irrelevant, as only going to show notice to Mr. Chaplain of the covenants of Conger. If the defence was failure of consideration, then it was immaterial whether the indorser had notice or not. If the de-fence was a latent equity in Briscoe, with which Mr. Chaplain could only be affected by notice, then it was also necessary to be shown that Mr. Hughes had notice, through whom Mr. Chaplain claimed.
    
      H. T. Ellett, for defendant in error.
    I. The deed from Conger to Thomas Briscoe was sufficiently proved. The names of Thatcher and Allison are in the usual place for subscribing witnesses, but they do not purport to have signed as such. They have not attested the execution of the deed. The clause of attestation, “signed, sealed and delivered in presence of,” is wanting. It is probable they meant to attest the deed, but they have not done so.
    2.- The record of, the deed of Conger to P. Briscoe was properly admitted in evidence. The record is as good evidence of the covenants and agreements contained in the deed, as of the mere fact of the conveyance. How. &. Hutch. Dig. 344, sec. 5, 6; lb. 348, sec. 21; lb. 610, sec. 34; Acts of Feb. 24, 1844; Pamphlet Acts, 230.
    3.The ground taken formerly (5 S. & M. 198.) is abandoned, and it is now said that Briscoe’s right to defend himself, under the stipulations contained in those deeds, has been transferred to Grissom, and can therefore no longer be taken advantage of by him.
    1st. In the first place, this agreement of Conger to remit from Briscoe’s notes a certain amount on a given contingency, is not a matter susceptible of being transferred to Grissom, inasmuch as it could, under no possible circumstances, be of any advantage to him. And if Briscoe had, upon a good consideration, bound himself to Grissom not to set up this stipulation against Conger, neither Conger nor his assignee could take! advantage of such an agreement to exclude Briscoe’s defence. And if Briscoe should, in violation of such an agreement, set up the defence, he would simply remain liable to an action at the suit of Gris-som for the breach of contract. Grissom could not be damaged by Conger’s failure to remit to Briscoe a portion of the purchase money, and therefore he would not sue upon the agreement to remit. Nor is such an agreement property, or a right of property, or a chose in action, capable of being sold or assigned. It is simply an admission of a failure of consideration to a certain extent, and a stipulation that such failure, if not made good, shall only be applied to the last notes.
    It is a case of mutual and dependent covenants. Where one engages to convey at a certain time, and the other party engages to pay at the same time, neither can be compelled to perform his part until the other has done or offered to do his own. Dough 689; 8 T. R. 366; SiocJcíoti v. George, 7 How. 172.
    2d. The evidence of Briscoe’s assignment to Grissom, contained in Briscoe’s answer, instead of showing an intention to transfer to Grissom the benefit of Conger’s agreement to remit the purchase money, proves the reverse. It shows that Bris-coe’s reason for refusing to make a deed to Grissom was, that Conger’s deed contained a stipulation for a reduction of the price, and that he wished to retain the benefit of that stipulation for himself. Such is the evident intention. Grissom had bought-the land, with notice of the defect of title, and the question was as to the mode in which Briscoe should convey it to him. It was agreed to be done by an assignment on Conger’s deed. It was the land merely that they were contracting about, and evidently there was no intention to convey the agreement of Conger.
    3d. But it is said that, in addition to this particular stipulation, Conger has given a general warranty, which runs with the land to Grissom; and if Briscoe gets clear of these notes, Grissom, in case of eviction, will have his remedy against Conger on the covenant of warranty, and Conger will thus lose the amount twice.
    No such result follows. The measure of damages on a covenant of warranty, is the price paid, with interest; and pro rata, if the eviction is only from a part of the land. 4 Kent, Com. 476, 477.
   Mr. Justice Thacher

delivered the opinion of the court.

Chaplain, administrator of Chaplain, instituted an action in the Claiborne county circuit court against Briscoe, upon his two promissory notes, dated February 8, 1832, and payable January 1, 1838, one for the sum of $609, and the other for the sum of $366-66. These notes were each the last of two series of notes given by Briscoe to Conger for the purchase money of two tracts of land. The deeds of these tracts contained the admission that Conger had not “a complete or sufficient title to a portion of the land” conveyed thereby, and covenants by Conger to remit to Briscoe, at the time when the last payment in each case should become due, so much per acre as he was unable “ to show a complete title to; ” in the first instance at the rate of nine dollars per acre, and in the second at the rate of five dollars per acre. Each deed contained a general warranty. Briscoe sold the land for a consideration, which was fully paid, but did not make a deed or warrant the title to the purchaser, Grissom, but sold it upon an agreement that he should assign to Grissom, Conger’s deed, which he did by an indorsement upon Conger’s deed, assigning the same and all his right and title thereto to Griscom. The plaintiff’s intestate, in this case, is the indorsee of the payee of the notes sued upon.

The main question now is, whether Briscoe can, after the above-described assignment, to Grissom, defend himself against the notes upon the ground of a failure of consideration, by virtue of the stipulations in Conger’s deeds that he would deduct pro rata from the notes last to become payable, in case he failed to show full title to the lands when the last payment of notes became due. This must depend upon the legal effect of those stipulations, or upon the effect of the assignment of Briscoe to Grissom, or both.

By the stipulations in the deed, Conger was to make deductions in the event he failed to perfect a title to all the land conveyed by the deed when the last notes became due. This gave Briscoe a-right to defend himself upon the ground of a failure of consideration, and this right exists to him against the notes in the hands of any assignee of Conger. The covenants are personal. Conger must show a complete title to the land before he can recover the amounts sued upon. It was a part of the contract of sale, and the warranty in the deed cannot take away Briscoe’s right under that contract. The assignment to Grissom was not a waiver of the right reserved to Briscoe. It was not a thing that could pass to Grissom. Briscoe’s right stands precisely as it did before his assignment of his right and title in the deed from Conger.

But we think the deed from Conger to T. Briscoe was not sufficiently proved. The names of the persons in the usual place of subscribing witnesses to a deed are not mentioned in the deed as either grantors or grantees, and they most fairly may be deemed to be witnesses to the instrument. They should have been produced, or their absence accounted for legally.

On account of this defect in the evidence, the judgment must be reversed, and the cause remanded for new trial.  