
    Isaac Smith versus Jonathan Sinclair
    Where one had given his promissory note, in consideration of a bond conditioned for the conveyance of land by the obligor, the promisor was holden to pay his note, although the land was under a mortgage at the time of executing the bond, and so continued when payment of the note was demanded.
    Assumpsit on a promissory note made by the defendant, payable to the plaintiff. It was agreed, in a case stated for the opinion of the Court, that the consideration of the note was a bond, given by the plaintiff to the defendant, conditioned for the conveyance to the defendant of a certain tract of land; and that the land had been mortgaged in fee to one Lumbard prior to the making of the said bond and note, and that a part of the money due by the mortgage remained unpaid at the commencement of this action.
    
      Boutelle, for the defendant,
    argued that the contract, being in its nature executory, might be rescinded by the * defendant, on the ground of fraud in the plaintiff. He had undertaken to give the defendant a good title to land not his own. If the defendant were to pay the money claimed in this action, and the plaintiff were to tender him a deed, with all the necessary covenants, the defendant might refuse the deed, and have his action to recover back th money. But circuity of action is to be avoided. 
    
    
      Rice, for the plaintiff.
    The plaintiff was seised of the land, and was able to pass the title in fee. The note was, then, made for a valuable and sufficient consideration. Here is no ground for a charge of fraud. It is every day’s practice to convey land already mortgaged by the grantor, either by a second mortgage, or unconditionally ; and this with the knowledge of the grantee, who may either rely on the grantor to dissolve the encumbrance, or may retain a sufficiency of the purchase money in his own hands for the purpose. And of this opinion was the Court, 
    
    
      
       11 Johns. 525, Judson vs. Wass. — 9 Mass. Rep. 78, Johnson vs. Reed & Al— Peake's L. of Evid. 75.—5 Mass. Rep. 494, Aiken vs. Sanford.
    
    
      
      
         Vide Greenleaf vs. Cooke, 2 Wheat. 13.—Knapp vs. Lee, 3 Pick. 452 —Howard vs. Witham, 2 Greerl. 390.—Frisbee vs. Hoffnagle, 11 Johns. 50.— Winter vs. Livings. ton, 13 Johns. 54.
    
   Defendant defaulted.  