
    Lattin vs. Vail and others.
    It is no defence at law to an action on a promissory note, that it was given as part consideration of land sold hy the payee, which he convenanted was free from incumbrances, and that the laud is subject to a mortgage, executed by him, for a'sum exceeding the amount of the note, 
    
    A plea is bad which purports to answer the whole, and is in fact but an answer to part of a declaration.
    Demurrer to plea. The plaintiff declared on a promissory note for $17,82 dated 2d May, 1836, payable on demand. The declaration also contained the common counts. The defendants pleaded in bar of the action, that the note declared on was given in part consideration of certain real estate sold and conveyed by the plaintiff to two of the defendants, hy indenture bearing date 2d May, 1836, in which the plaintiff covenanted that the premises conveyed were free and clear of all incumbrances. The defendants then aver that at the time of the execution of the indenture, the premises conveyed were subject to a mortgage of $2000, executed by the plaintiff, which was then and still remained a lien, &c. To this plea the plaintiff put in a general demurrer.
    
      R. Wilkinson and W. J. Street, for the plaintiff.
    
      S. Barculo, for the defendants.
    
      
      
         Code of Procedure, sec. 150, 274.
      In Burget v. Bissell, 5 How. Pr. R. 193, Welles, X, says “ I have no doubt but that any matters which, under the practice as it existed before tiie Code, would have formed sufficient ground of relief against a" strictly legal demand or claim, upon a proper bill filed for that purpose, may now be interposed by the defendant directly, by way of answer in the action commenced to recover the legal demand.” Parker, X, in Getty v. Hudson R. R. Co. 6 id. 269, says “ We have certainly made but little progress in the reform that lias been attempted, if law and equity can now only be administered in separate actions. If such is held to be the present rule of practice, the very object of having law and equity administered in the same tribunal, and in the same forms of proceéding, will be defeated ” (See the residue of the opinion). So, also remarked by Selden, X, in Wooden v. Waffle, 6 How. at p. 153 ; by Harris, X, in Dederick v. Hoysradt, 4 id. 352; and Root, X, in 1 Seld. 363. Hunt ti. Farmers’ Loan Co., 8 id. 416, is another direct decision to the same effect.
      But in Crary v. Goodman, 9 Barb. 657, at general term in the eighth district, it is held that in an action brought since the adoption of the Code, for the possession of land, founded on a legal title in the plaintiff, an equitable right in the defendant to a conveyance is not a defence. If, under the Code, an action of ejectment may be met by an equitable title of the defendant and a claim for the conveyance of the legal estate—yet, in order to defeat a recovery, the defendant must become an actor in respect to his claim; and his answer must contain all the elements of a bill for a specific performance, and he must ask and obtain affirmative relief. Dewey v. Hoag, 15 Barb. 365. Fraud in the obtaining of a judgment is now a defence to an action upon it. Dobson v. Pierce, 1 Duer, 142; affirmed, 2 Kern. 156. See Haire v. Baker, 1 Seld. 357.
    
   By the Court,

Bronson, J.

The plea is had. It only attempts to answer the count on the note, without touching the other counts; and yet it commences and concludes in bar of the whole action.

But the plea is bad in substance. The defendants’ counsel insist that it shows a total failure of the consideration for which the note was given; but in this they are mistaken. The title has not failed, nor have the de[189] fendants been disturbed in the enjoyment of the land. There is an outstanding incumbrance, which, if not extinguished by the plaintiff may at some future period operate to defeat the title; but it is impossible to say that the consideration has wholly failed, so long as the defendants remain in the undisturbed enjoyment of the property for which the note was given. There has been no breach of the covenant of seizin (Stanard v. Eldridge, 16 Johns. R. 254); and although the covenant against incumbrances is broken, the defendants would only be entitled to nominal damages, so long as the mortgage remains outstanding (Stanard v. Eldridge, id.) If the defendants have paid the mortgage debt, they might perhaps have defeated this action by way of setting off the amount of the payment. The plea does not state the price which the defendants were to pay for the land, but only that the note was given as a part of the consideration. No fraud is alleged; and it may well be that the plaintiff conveyed a farm worth ten thousand dollars; that the defendants took the deed and agreed to pay the price with full knowledge of the incumbrance, relying on the covenants for their indemnity. The plea is not inconsistent with the supposition that this note, payable on demand, was given for the express purpose of providing the means to satisfy the mortgage. The plea neither shows fraud nor a failure of consideration.

Judgment for the plaintiff.  