
    George Wade against John Dawson.
    Assumpsit on a “ o?atractSníX tmls^cmifíTe made, a third par-title made> ifc is ™u“^”tc™tteh3| «i® thomHüeu¡¡ cleared, the note be r0C0v
    This was an action of assumpsit on a note of a hand. The defence was, want of consideration. it appeared, that this note had been given by Mr. Wade for a lot, or piece of land, adjoining Tt j i i.,,-.. i, ° Gast Granby, which had been mortgaged by Mentin AlTcin to the plaintiff, Mr. Dawson; TUTT'V 1-1/» t 11 Mr. Dawson had foreclosed his mortgage, and had obtained an order from the Court of Common # # Pleas for the sale of this land; that while these proceedings were going on, Mr. Wade, being desirous of purchasing this land, entered into a contract for it with the agent of Mr. Dawson, by which it was agreed that Wade should become the purchaser at Sheriff’s sale; and that Mr. Dawson should give an order to the Sheriff to make titles to the lot of land to Wade, upon which Wade gave the note upon which this action was brought; that Wade accordingly bid off the land at Sheriff’s sale, and Mr. Dawson gave the order to make titles. It appeared, further, that Wade said he knew as much about the titles as any one, and was willing to run the risk upon obtaining the Sheriff’s title. In the meantime some delay was occasioned in making the Sheriff’s title, by the old Sheriff going out of office, and a new Sheriff coming in; consequently the titles were not completed until the succeeding Sheriff had the order of the Court to make titles, which were eventually executed, and tendered to Wade, on behalf of Mr. Dawson; but Wade refused then to receive them, as General Hampton had, by colour of some title, entered into the premises, and claimed a right to the land ; upon which defendant, Wade, refused to pay his note.
    The presiding Judge, on the trial, charged the Jury in favour of the plaintiff, upon the ground that Wade said, when he made the contract, that he knew as much about the titles as any one, and that he was willing to take the Sheriff’s title on the sale, under the foreclosure of the mortgage, and to run the risk. Upon this, the Jury found for the plaintiff the amount of the note.
    This is, therefore, a motion for a new trial, on the ground that when the defendant could not get a title from the Sheriff, agreeably to the contract when the order was tendered, the defendant was released from his contract to pay the money.
   The opinion of the Court was delivered by

Mr. Justice Bay.

I am of opinion, that the declaration of Wade, when he made the contract, “ that he knew the titles as well as any one,” ought not to be taken conclusively against him, as an agreement to run all possible hazards, although it might be considered as one to run all ordinary risks, of a rular title down from Jllkin, upon his receiving a Sheriff’s deed, but he did not receive the Sheriff’s deed, upon the tender of the order from Dawson, owing to some difficulty arising from the going out of the old Sheriff and the coming in of a new one. Here a difficulty occurred, and a consequent delay, not occasioned by Wade, but by circumstances over which he neither had nor could have any control. In the intermediate time, however, while this difficulty remained in the way, a third party stepped in, General Hampton, who entered, and claimed a right to the premises. Which of these two parties, then, under these circumstances, vras to contest the right or claim of General Hampton f If the delay had been occasioned by Wade, before General Hampton entered, then I should be of opinion he would have been bound to establish the right under the titles he was willing to accept of. But as it does not appear to have been owing to any neglect or laches in Wade, Dawson appears to me bound to give him a legal possession, before he could be entitled to the consideration-money. It is a general and established rule in Equity, that the Court will never force upon a man a disputed title, or decree him to pay money until the title is clear and regular; so in a case of this sort, in a Court of Common Law, where this kind of equitable defence is permitted to be made, the Court # * will never compel a man to pay money on such a contract until the title is clear and regular. °

am, therefore, of opinion, that the verdict should be set aside, and a new trial granted.

Grimké, Colcoclc, Johnson, and Cheves, J. concurred.  