
    CALVIN WATSON, plaintiff in error, v. B. F. KEMP, defendant in error.
    (Atlanta,
    January Term, 1871.)
    PAYMENT OF PURCHASE MONEY—DEFENDANT IN POSSESSION—FRAUD.—While, as a general rule, a party in possession of land will not be protected against the payment of the purchase money, yet, if the plea set up the fact that the possession did not accrue from the purchase, but that defendant was in possession, and that by fraud the note sued on was procured from him under misrepresentation of the party obtaining it, that he had good title, when he had not, such plea makes an issue of fraud which ought to be submitted to the jury.
    Failure of Consideration. Equity Jurisdiction. Before Judge Harrell. Terrell Superior Court. May Term, 1870.
    Kemp sued Watson on his promissory note for $200 00, dated the 3d of January, 1867, and payable to Kemp on the following Christmas. Watson pleaded that the note was give for lot number ninety-four, on which Watson resided on the 3d of January, 1867; that Kemp represented to him that he, Kemp, had a good title to said lot, which he made Watson believe; that these representations were false and made only to defraud Watson, and in consideration of said ,|:note, Kemp turned over to him a quit-claim title ito said lot, from one Weaver, to him, Kemp, with his, Kemp’s, transfer to Watson thereupon; Weaver had no title or interest in said land, and so told Kemp, but Kemp got said quit-claim from him expressly to cheat Watson, by pretending he had a title thereto, and threatening to oust Watson; Watson was ignorant of these facts when he gave the note, and gave it to prevent being turned out by what he supposed was a good title. It being admitted that Watson was still in possession of the lot, upon demurrer, said plea was stricken.
    Watson’s counsel then proposed to amend said plea by averring, that at the time of giving said note, there was an outstanding title to said lot (unknown to him) which would be asserted against him, and proposed to tender, back said quit-claim, and claim a rescission of said contract, and to ask for a verdict covering all the facts an equities of the parties, according to the facts of the case. The Judge said he would allow the pleadings to be so amended, but that defendant could not successfully defend against said note while he retained possession of the lot under purchase from plaintiff, and that, if Watson had any rights under said facts, they must be set up in a Court of Equity. Thereupon, the Judge granted a judgment against Watson for the amount due on the note.
    The striking said plea and said decision as to the amendment, etc., are assigned as error.
    F. M. Harper, R. H. Clark, for plaintiff in error.
    C. B. Wooten, for defendant.
    
      
      PAYMENT OF PURCHASE MONEY—DEFENDANT IN POSSESSION—FRAUD.—We recognize the rule that the purchaser of land who enters into possession under a warranty deed or a bond for titles cannot, before eviction, defeat an action for the purchase money, unless there has been fraud on the part of the vendor, or the latter is insolvent, or there is some other ground which would in equity entitle the purchaser to relief. This rule seems to be well.settled by the cases of McGehee v. Jones, 10 Ga. 127; Watson v. Kemp, 41 Ga. 586; McCauley v. Moses, 43 Ga. 577; Smith v. Hudson, 45 Ga. 208; Booth v. Saffold, 46 Ga. 278, and numerous other decisions of this court. According to these cases, if the purchaser is in possession under a deed with covenant of warranty, he must resort to his covenant; if under a bond for titles, he must resort to the bond. Sanderlin v. Willis, 94 Ga. 173, 21 S. E. Rep. 291.
    
   EOCHRANE, C. J.

It appears from the record that Kemp brought his suit against Watson on a promissory note given for a lot of land. Upon the trial, Watson filed his plea, alleging that the note was given for lot of land number ninety-four in the sixth district of Terrel county, on which he then resided; that Kemp represented he had a good title to the lot, which he induced him *to believe; that these representations were false, and intended to defraud him; that when the-note was given, Kemp only gave him a quit-claim, made to him by one Weaver, that Weaver had no right, title or interest in the land, and had so told Kemp when he went to buy it, but he insisted on this quit-claim being made, and procured it with the special purpose of defrauding him, which he did by false representations, stating that he had the titles, and would proceed to evict him. Becoming alarmed, etc., he gave this note. These are the main averments of his plea. It appears that he offered to amend it by adding that there was in existence, a paramount outstanding title which would be asserted against him. This plea was stricken by the Court below, and this constitutes the ground of error.

We think the Judge erred in this ruling. The facts set up by this plea if true, (and for the purposes of this case the will be so regarded,) present a different question of law from that which it appears the Judge acted on. We refer to the rule of law laid down in 10 Georgia, 133. We readily recognize the authority that “a party will not be protected against payment of purchase-money whilst in possession of the premises.” But we do not recognize its application in the case at bar. Here the party who purchased -was in possession at the time, and he had acquired no right by virtue of it. There was no advantage accruing to him as results from the ordinary purchase of lands. He was on the lot when Kemp came to him, pretending, as he alleges, to have good title, and the case set up by the plea is one of fraud in procuring this note, and questions of fraud in matters of contract ought to be submitted tp the jury.

Judgment reversed.  