
    William Hoy et al. vs. Addison Taliaferro.
    A vendee of land who has received a deed with covenants of warranty, and been let into possession, cannot, when sued at law on the notes given for the purchase-money, set up the defence of failure of consideration, without shewing an actual eviction.
    A sale by a marshal or sheriff of land under an execution against the vendor, is not equivalent to an actual eviction, and cannot while the vendee who entered under a deed with covenants of warranty, remains in possesion, be set up by the vendee as a valid defence to a suit at law by the vendor, on the notes given for the purchase-money ; nor will the voluntary abandonment of the premises, by the vendee, under such circumstances, change the rule ; there must be an actual eviction.
    An affirmative covenant is negative as to what is not affirmed; where a deed therefore, contains a covenant of warranty of title, and no express covenant of seizen, the use of the words “grant, bargain and sell,” will not, under our statute, amount to a covenant of seizen.
    H. contracted with W. for the sale of a tract of land; after the contract was closed, but before the deed was executed, a judgment was rendered against H.; arid after the rendition of the judgment, W. sold and transferred his interest in the land to H. & T. : Held, that by such sale and transfer, H. & T. acquired all of W.’s equity, which was older in point of time than the lien of the judgment against H., and the lien of that judgment was therefore subject to such equity.
    ERROR from the circuit court of Madison county ; Hon. John H. Rollins, judge.
    This was an action of assumpit instituted in the circuit court of Madison county, to the May term, thereof 1840, by Addison Taliaferro against William Hoy, William N. Thorn, Thomas Mullin, William E. Harreld and John Briscoe, The declaration was in the usual form, and founded on the defendant’s joint and several promissory note, for the sum of eighteen hundred and thirty-seven dollars and forty cents, payable to Patrick H. Hayes, or bearer, and by him indorsed to the plaintiff. At the return term the defendants pleaded the general issue, and also a special plea, that the note sued on was executed in consideration of a certain tract of land, situated in Madison county, Mississippi, (describing the land,) and that at the time of the sale of said land by Hayes, to defendants, Hoy»& Thorn, there was outstanding, unsatisfied, a certain judgment rendered by the circuit court of the United States, for the southern district of Mississippi, in a certain action of trespass on the case, wherein Charles Tiernan and James McHuddy were plaintiffs, and James Hayden and Patrick H. Hayes, the payee in said note, and -vendor of said land, were defendants, rendered 11th of June 1838, for ,$'2656 86. That on 13th of March 1841, a fi. fa. issued on said judgment, directed to marshal, &c. which, before the return day thereof, was levied on said land, and every part of it, and the same was sold to one Thomas Penny, to satisfy said judgment. Whereby the consideration of said note wholly failed. No replication appears by the record to have been filed to this plea. On the trial the plaintiff read to the jury the note sued on, and rested his case. Defendants then called H. A. H. Lawson, who testified that P. H. Hayes was his particular friend, and seldom if ever visited Madison county without calling on him, and that Hayes never made but one trade with Hoy & Thorn to his 'knowledge, and that was in February 1839. He then sold them a number of negroes, and some little' other personal property, and a tract of land. That theretofore in 1835, Hayes had sold the same and other personalty, and contracted to sell the land to John White, and executed a bond to White to make title to the land. At the same time White conveyed the personal property to Henry Phillips as trustee, to secure the payment of the purchase-money. That when the payments of some of them became due, Phillips, the trustee, being requested so to do, attempted to sell, and White enjoined him from so doing by an injunction from the chancellor, (Hoy being security in the injunction bond.) The injunction was dissolved, and Phillips then refused to act any longer as trustee. The chancellor then appointed witness to execute the trust. He took possession of the property and advertised it for sale. Hoy & Thorn wished to become the purchasers of the property, and produced a paper signed by White, which witness thought woidd free Hayes from all responsibility to White on his bond for title to the land. Hayes contracted with Hoy & Thorn, and that contract prevented the personal property from being sold under the deed of trust. Hayes estimated the personal property at $6000. Hoy & Thorn at $5000. They split the difference, and Hayes sold it to them for $5500 in cash, which they paid. Hayes refused to enter into the contract unless the value of the personal property was paid in cash. Hoy & Thorn agreed to pay Hayes for the land and negroes about the amount due from White to Hayes for all of the property. It might have been a little more or less. Hoy & Thorn gave their notes for the remaining portion of the contract, after deducting the cash payment, with Thomas Mullin, William E. Harrold, and John Briscoe as their sureties.
    The notes of White to Hayes were given up by witness as agent of Hayes, either to Hoy or Thorn, and witness afterwards saw them, he thought, in the possession of Hoy. Hayes and White were unfriendly at the time of the contract between Hayes and Hoy & Thorn, and did not converse together. At the time the contract was entered into Hayes lived in Ya-zoo county in this state, and in the spring of 1840 he removed to Texas, carrying with him some property, but not sufficient to pay the judgments against him, and leaving none.
    The defendants then read a record of the proceedings in the United States circuit court, in the case of Tiernan & Cuddy v. Hayden & Hayes, which proved the facts alleged in the defendants’ second plea, and that the land was sold by the marshal to Thomas Penny on the 3d day of May 1841, for $500. The defendants then read the deed from Hayes to Hoy & Thorn, dated 6th February 1839, by which he granted, bargained and sold the same land to Hoy & Thom, with covenants of general warranty. Defendants here closed their evidence.
    The plaintiff introduced and read a contract or agreement in writing, which was admitted to be the same spoken of by the witness, Lawson, in these words, to wit:
    
      “ State of Mississippi, Madison c’ty, Feb. the 10, 1839. — A written agreement entered into between John White of the first part, and Wm. Hoy, Thomas Mullins, and Wm. Thorn of the second. Whereas, the extreme emergency of the case requires it for the better security of the parties interested, it is agreed that John White of the first part, resign all his right, title and interest in all the property now in his possession to the parties of the second part, in order that they may negotiate and settle the claims against the property wherein they are liable, and if possible sustain the property from being sold to the great damage of all parties interested, and procure the titles in their best form from the holders of claims. It is further agreed, that the parties of the second part shall, if possible, prevent the property, from sale; if so, we bind ourselves to settle the principal part of the household furniture on his family, or at least that portion of it brought from Ky. by said White. We further agree to protect said White’s family in a home on the premises, until said White can have a chance to procure a situation for the better for himself and family, — provided he and they will use their best endeavors to make a support without incurring any possible expense to the farm; we further agree that we will give up the before-named property to said White, just as soon as said White can make sufficient showing that we will be safe in so doing, or any portion of it at a fair valuation, according to the liabilities of the parties of the second part at the end of this year, or at any time thereafter while in our possession; or said White or family shall have the privilege of redeeming Mima and Nelly at any time they may see fit.
    “ John White,
    “ W. Hoy,
    “ Wm. N. Thokn.”
    The plaintiff then read in evidence the record of proceedings in the suit in chancery instituted by John White against Patrick H. Hayes and others, containing copies of the bond for title to the land given by Hayes to White, the bill of sale of the negroes, and other personal property sold by Hayes to White, and the deed of trust executed by White to Phillips as trustee, to secure the purchase-money due Hayes, referred to by the witness Lawson; all of which were agreed to be received as evidence in lieu of the originals. The record also showed the granting and dissolution of the injunction and removal of Phillips as trustee, and the appointment of Lawson to execute the trust, as stated by Lawson. It was then admitted, that John White entered into possession of the property purchased from Hayes, immediately after the purchase was made. And that Hoy & Thorn took possession of the greater part of the land, White occupying the residue, immediately after their contract with Hayes, and remained in possession of it about two years, and until it was levied on and sold by the marshal to Thomas Penny, very soon after which they voluntarily abandoned the possession. ' The plaintiif then read a contract in writing between White and Thorn, executed on the 7th day of November 1837, and recorded in the office of the clerk of the probate court of Madison county, on the 12th day of December 1837; by which White conveyed to Thorn one half of the land purchased by White of Hayes, and also one half a large number of ne-groes and other personal property, in consideration of seventeen thousand dollars; five thousand eight hundred and sixty-five dollars of which was payable in cash, and the residue in five equal annual instalments. This being all the evidence offered on either side, the plaintiff asked the court to instruct the jury as follows, to wit:
    
      “ 1st. That if they believe from the evidence, that the contract, between Hayes and Hoy & Thorn, was an entire contract for the land and personalty at an aggregate sum for the whole, the plaintiff in this case must recover, notwithstanding the land which was part of the consideration of the sum agreed to be paid was sold at marshal’s sale.”
    “ 2d. That the deed from Hayes to Hoy & Thorn conveys only a naked legal title, the equitable beneficial interest being then in White, who was in possession under the bond for title, and that this interest passed by virtue of White’s written contract at the time, and that this interest is not affected by the lien of the judgment.”
    “ 3d. That the purchaser at marshal’s sale has but a bare legal estate, which he would be compelled in equity, on the payment of the original purchase-money, to convey to the defendants, Hoy & Thorn.”
    “ 4th. That the stipulation in the title bond of Hayes to White, that on the non-payment of the notes by White the bond shall be void, does not in itself render such bond void on such failure. It is a privilege of the vendor of which he may avail himself, and from the fact that the vendor Hayes, long afterwards instituted proceedings under the deed of trust, to sell the negroes, the jury may presume that he had waived such privilege, and regarded the contract as still in full force.”
    “5th. If the purchaser of real property lakes a covenant of warranty from the vendor, and is put into possession, he cannot defend himself against the payment of the purchase-money, without a previous eviction, unless the vendor was guilty of fraud in the sale.”
    “ 6th. A sale of land by a sheriff, or marshal under execution, upon a valid judgment and a deed made to the purchaser under that sale, does not of itself amount to an eviction.” All of which the court gave. Defendant asked the court to give the following instructions, to wit: “If the jury believe from the evidence that Hoy & Thorn purchased from Hayes personal property and land at a sum agreed for the whole; that a price was agreed on for the personal property, and for the sum so agreed on as the value of the personal property, Hayes required and received payment; that notes were executed for the remainder; that the note sued on is one of those so executed; that at the time of the sale of the land and personal property aforesaid, there was an unsatisfied judgment against Hayes, rendered by the United States circuit court for the southern district of Mississippi; that the land was situate in Madison county in said state; that a fieri facias issued on said judgment against the goods and chattels, lands and tenements of said Hayes, that said execution was levied on said land, and the same was sold by the marshal to whom' it was directed, (he acting by deputy,) to satisfy said execution, and that the said land was purchased by one Penny at such sale, they ought to find for the defendants which instruction the court refused to give. Defendants thereupon excepted to the giving of each of the instructions asked by the plaintiff, and to the refusal to give theirs.
    During the argument to the jury, defendants’ attorney stated that he would then endeavor to show, from the evidence in the case, that the vendor, Hayes, committed a fraud in his sale to Hoy & Thorn, and that if he did so no eviction was necessary under the instructions of the court. Plaintiff’s attorney objected to defendants’ attorney being permitted to argue the question of fraud! The court sustained the objection, because there was'no plea alleging fraud, and because there was no evidence tending to prove fraud. To which defendants’ attorney excepted. A verdict and judgment were rendered in favor of the plaintiff, and the defendants then moved for a new trial. “ 1st. Because the court erred in giving plaintiff’s instructions.”' “ 2d. Because the court erred in refusing defendant’s instructions.” ■ “ 3d. The court erred in not permitting defendants’1 attorney to argue the question of fraud.” “4th. The verdict was contrary to law and evidence.” The motion was overruled by the court, to which the defendants excepted, and removed the case to this court by writ of error.
    
      D. Mayes, for plaintiffs in error.
    Without going over the several instructions given and refused in detail, I will attempt a discussion of those principles which must govern the whole. In doing this perspicuity requires that' I first consider the case as it would be, had Hayes never sold to White ; and secondly, whether that fact has any legitimate influence in this cause. Upon the first point I contend
    1st. That, as there was, at the time of the sale of the land by Hayes to Hoy and Thorn, a judgment against Hayes having a lien on the land, and the land was sold to satisfy that judgment, and the possession abandoned by Hoy and. Thom, there was an entire failure of consideration] of which the . defendants’ might avail themselves, although Hayes had conveyed by deed with covenant of general warranty. The case of Frisbee v. Hoff-nagle, 11 Johns. R. 50, is precisely this case, with one fact variant, which if it makes a difference at all, renders this a stronger case. There the purchaser retained possession to the time of trial, whereas in this case the purchasers abandoned the possession immediately after the sale by the marshal. The case of Lattin v. Vail, 17 Wend. 188, proves, if it proves anything, that where there is a subsisting mortgage at the time of sale and conveyance, a sale under the mortgage would be an available defence to an action for the purchase-money. In McAllister v. Reab, 4 Wend. 4, Frisbee v. Hoffnagle is referred to, and the doctrine that partial failure will avail pro tanto, placed on a firm basis of reason, policy and law. Parham v. Randolph, 4 Howard, 453, establishes the same doctrine, for there was a conveyance with covenants.
    In the court below, two classes of cases were relied upon against me. The one the numerous cases in which courts of equity refuse to relieve against the payment of the purchase-money on the mere ground of a failure of title. But if we will attend to the reason why in such case equity will not interpose, so far from overturning, it maintains my position, that in this case our defence is complete.
    The reason, and the only true reason why equity cannot relieve before eviction will be found in Abbott v. Allen, 2 Johns. Ch. R. 521. “ This, (a court of equity) is not the appropriate tribunal for the trial of titles to land,” says Chancellor Kent. “ To sustain the injunction (for the purchase-money, before éviction,) would be assuming the fact of a failure of title before eviction or trial at law, and which this court, as not possessing any direct jurisdiction over legal titles, is not bound or authorized to assume. This court may perhaps try title to land where it arises incidentally, but it is understood not to be within its province, when the case depends on a simple legal title and is brought up directly by the bill.” This is the true reason, founded in sound judicial philosophy, and being so we reason from it thus. To avoid the payment of purchase-money on the mere ground of defect of title, the court in which you seek to avoid it, must have direct jurisdiction over legal titles.
    Again. The words grant, bargain, and sell, as used in the deed from Hayes to Hoy & Thorn, are to be construed “ an express covenant, to the grantees, that the grantor was seised of an indefeasible estate in fee simple, free from incumbrances, done or suffered, from the grantor. Rev. Code, 459. Gratz v. Ewalt, 2 Binney’s R. 95; 4 Kent’s Com. 473.
    Hayes had not an indefeasible estate. The judgment of the United States circuit court was an incumbrance suffered by him. This covenant was broken therefore when entered into. Although broken when entered into, that did not produce an entire failure. Had it been but an incumbrance at the time of trial it could not have availed us. The incumbrance against the existence of which Hayes had covenanted, had actually defeated the estate of Hoy & Thorn. The incumbrance did not, but the loss of the estate did produce an entire failure. Latin v. Vail, 17 Wend. 188.
    But the court below was of opinion, that as Hayes sold ne-groes to Hoy & Thorn as well as the land, we could not defend, as we had not lost the negroes. As to the personal property, it was agreed that its value was $5500. That sum was paid in advance. All that remained was the land, for that and that only would Hayes extend credit. The land then was the only consideration for the notes. I need only refer to the cases of Randolph v. Parham, 4 Howard, 453, and McAlister v. Reab, 4 Wend. 483, and the authorities there cited on this point. Thus, then, would the case stand independently of White’s previous purchase.
    Secondly. What influence can that have! None; for 1st. The conveyance from Hayes to Hoy & Thorn was not made in execution of the contract between Hayes and White. It was in consequence and an execution of a new and original contract of sale by Hayes, directly to Hoy & Thorn. Lawson, the trustee appointed by the chancellor, was about to sell the slaves under the deed of trust. He was as an attorney consulted by Hayes, and gave it as his opinion that Hayes might safely sell to Hoy & Thorn. Hayes, and Hoy & Thorn then contracted anew for the sale by the former to the latter, and did not intend or think that in so doing they were carrying into effect the contract between Hayes and White. No one could have doubted but that Hayes would have been safe in conveying in execution of his contract with White. The question was not whether he might on his part execute that contract. It was, could he sell the land 1 not could he convey pursuant to a former sale.
    2d. The deed of Hayes tons is conclusive as to what we contracted for with him. It was an indefeasible estate in fee simple, free from incumbrance, done or suffered by him. This estate for the land was the consideration. Suppose this case: That after the marshal’s sale,'Hoy & Thorn had sued Hayes upon the covenants arising from the words “ grant, bargain and sell,” which is as before shown an express covenant that the grantor passes to the grantee an indefeasible estate in fee simple, free from incumbrance done or suffered by the grantor; could Hayes, by any form of pleading, have prevented a recovery to the full amount of the purchase-money, on the state of facts shown by this record 1 Hall v. Dean, 13 Johns. R. 105. How could his sale to White, or our contract with White avail him in defence, suppose we now pay the purchase-money 1 Might we not immediately recover it back by suit on these covenants, if Hayes had not fled to Texas 1 If we could, the rule that a de-fence shall be allowed to avoid circuity of action comes in.
    3d. We were in a court of law, and that court could not determine the question of equity between Hayes’s vendees and Penny, who purchased at marshal’s sale. According to all judicial science, a court of law must determine questions of law, a court of equity questions of equity. A court of law has no more jurisdiction to decide upon equitable titles than has a court of equity to decide upon legal titles. Whether we had or had not an equity was a question not of legal, but of equitable cognizance.
    As the special plea was not replied to, the court must for that cause reverse, but it is very important that the main question be decided, to avoid much litigation as to the land, the negroes, the remainder of the purchase-money, the distribution of the estate of Mullins, who is dead, and, indeed, many other rights awaiting the decision of, this cas ■.
    
      John G. Ott, for defendant in error.
    The court below committed no error in the proceedings, and in refusing to permit defendants below to argue fraud to the jury. The plea should aver that on the sale of the lands to the vendees, Hayes made representations with intention to defraud. Fraud of all kinds must be expressly averred. Hageman v. Sharkey, 1 How. 277. Likewise fraud cannot be set up by way of inducement, but must be directly charged. Ibid. 341. From the above decisions it appears clearly, that a party endeavoring to avoid the payment of his note on the ground of fraud, must so charge the same in his pleadings, and then prove it, which, however, is not so alleged in the present case. The plea only charges that the marshal sold the land in question by virtue of a fieri facias, to one Terry, by reason of which the consideration of the note has wholly failed ; it is nowhere set down, that Hayes made any fraudulent representations to the vendees, or that he concealed from the vendees the fact of the judgment lien with the intention to defraud them. It is quite as reasonable to believe there was no fraudulent representation, or no representation at all, and that the vendees had notice of the existing judgment lien, as to believe that the defendants below had such a defence and did not make it in their pleadings. So much for the pleadings. Now as regards the evidence in relation to the sale, it will appear that the whole transaction was fair and honestly agreed to by all the contracting parties. The vendees paying to the vendor Hayes a sum of money for the land and personal property, the vendor took the money, and gave title deeds of conveyance with covenants, and possession of the real and personal property, which the vendees quietly took at the time, and enjoyed and held for about two years, all of which time Hayes was in an adjoining county. The law presumes every contract to be made bona fide, and all persons innocent of fraud, deceit, and other imputations affecting reputation; and to avoid a contract a party must fully charge either fraud or deceit. 1 Howard, 2§0. This case turns upon covenants dependent and independent. Hoy & Thorn received from Hayes a deed of conveyance with covenants of warranty, when they executed the note sued on, and took possession, — paid part of the purchase-money at the time of sale, and have yet their remedy at law upon the covenants. A voluntary abandonment of the premises by the vendees upon an outstanding claim is no eviction or ouster, because they may take quiet and peaceable possession thereof, so far as this honorable court can know, and at all events the vendees have not been evicted by any title paramount. The vendees have no remedy for this case in chancery; have they it here? The voluntary abandonment of the premises to defeat the payment of the note, would be a fraud,upon the innocent holder of it, as is the case now pending. The law does not allow or permit with impunity such a remedy to be set up in defence, to defeat the recovery of the innocent holder of the vendees’ note. 4 Howard, 435 ; 5 Howard, 387; 5 Ibid. 460; 2 Johns. Ch. 520; 1 Ibid. 213; 5 Ibid. 29, andcases there cited.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

The questions in this case arise out of the defence of failure of consideration set up in an action on a promissory note given for land. Hayes, the payee, was the original owner, and in October, 1835, he contracted to sell the land to White, and gave a bond to make title at any time after the payment of the purchase-money, to secure which White gave a deed of trust on the land and other property. Hayes was proceeding to enforce the deed of trust for non-payment, and White procured an injunction, which, however, was afterwards dissolved. Hayes was about proceeding again to have the property sold under the deed of trust, when White, on the 10th of February, 1839, entered into a contract with Hoy & Thorn, which is rather obscure and unintelligible, though it professes to assign or transfer to Hoy & Thorn all the property then in White’s possession, in order that they might negotiate with persons holding claims on it, and by so doing prevent a forced sale, and procure titles to themselves from the claimants. On the 26th of February, Hayes conveyed to Hoy & Thorn, after being advised by counsel who inspected the assignment of White, that he would be justified in doing so, and then it was the note sued on was given. Between the time of Hayes’s original agreement to sell to White, and the time he conveyed to Hoy & Thorn, to wit, in June, 1838, a judgment was rendered in the United States court against him, under which the land was sold by the marshal on the 3d of May, 1841,' to one Penny, for five hundred dollars. Hayes had by the same conveyance sold to plaintiffs in error the same negroes he had previously sold to White, the entire price being about the amount due him from White. The negroes, however, were paid for in cash, and thereupon the notes of White were given up to one or the other of the plaintiffs. White went into possession under his purchase, and the plaintiffs were let into possession of the greater part of the land under their purchase, White still occupying the balance. The plaintiffs continued in possession about two years, or until after the land had been sold by the marshal, when they voluntarily abandoned it.

For the plaintiffs in error the case has been discussed in the first place as though Hayes had never contracted with White; and secondly, as to the influence of that sale on the cause.

First, it is assumed that if there was a judgment against Hayes when he sold to plaintiffs, under which the land was afterwards sold, then there was a total failure of consideration which is available as a defence to this action, although Hayes conveyed with general warranty. In support of this position the case of Frisbee v. Hoffnagle, 11 Johnson, 50, is relied on; and it must be confessed, if that case is to be regarded as law, this case must fall under its influence. Divest this case of the feature which is given to it by the previous agreement to sell to White, and the two cases are in all important respects similar. Few cases have been more frequently referred to, and but few have been less regarded, than the case of Frisbee v. Hoffnagle. Chancellor Kent seems to have always questioned this decision, and in a note to the last edition of his Commentaries, he informs us that it is not now regarded as law. 2 Kent, 472. He thinks it was virtually overruled in Vibbard v. Johnson, 19 Johnson, 77; but be that as it may, it was disregarded in Whitney v. Lewis, 21 Wend. 132, 134, and also in Tallmadge v. Wallis, 25 Wend. 107. This last case contains a lengthy review of the question, and it was said that in the case of Frisbee v. Hoffnagle, there was a misapplication of a correct principle. There was no eviction, and besides, the purchaser at sheriff’s sale could only recover mesne profits from the time of his purchase; hence it was said there was not a total failure of consideration.

But these are not the only cases adverse to Frisbee v. Hoffnagle. It is opposed by Lloyd v. Jewell, 1 Greenleaf, 352; by Knapp v. Lee, 3 Pick. 452; and by Wrinkle v. Tyler, 3 Martin’s La. R. (New Series,) 111. In the last case the court said that as the defendant had not been evicted, they could not undertake to decide whether the outstanding title set up by him was better than his own.

The same question was before the supreme court'of the United States in Greenleaf v. Cook, 2 Wheaton, 13. The action was on a promissory note given for a lot, which turned out to be subject to a mortgage, on which proceedings had been instituted, and a decree of foreclosure pronounced, though we may suppose no eviction had taken place. The court threw out a doubt, whether under any circumstances, where a deed had been taken, the grantee could resist payment, and it was said he clearly could not, unless there had been a total failure, which was not the case there, as the equity of redemption might be worth something. And the defendant was holden to be precluded on another ground ; he had purchased with notice of the incumbrance. So it seems, if the vendee has or may receive any benefit, the failure is not total.

In South Carolina, it has been decided that even partial failure may be set up as a defence. 1 Bay, 273. But it was said to be an equitable defence which courts of law had lately let parlies go into on the ground of fraud.

The case of Parham v. Randolph, was a case in equity; the failure was but partial, and the question of fraud was also involved. It furnishes no precedent in support of this defence.

Opposed as the case of Frisbee v. Hoffnagle is, by these several authorities, it cannot be regarded as a safe precedent. In this case, as in that, the covenant of general warranty has not been broken. Such covenant is only broken by eviction. This is conceded in the argument. The covenantee has no right of action on such covenant before eviction. Until then the contract of the covenantor is not broken. How can the contract of the plaintiff which has not been violated, be set up by the defendants to defeat the recovery of the purchase-money? But there was not a total failure for another reason; the defendants held possession under their deed for nearly or perhaps quite two years before the marshal’s sale. They were not accountable for the rents and profits during that time to any one. This brings the case completely within the reasoning of the chancellor in Tallmadgev. Wallis. On this ground, too, it falls within the decision in Greenleaf v. Cook, where it was said the failure was not total because the equity of redemption might be worth something. The possession of this land for two years must have been worth something. This fact, however, in the present case, is not very material where the case is considered under the general warranty; the absence of an eviction is conclusive on the defendants. To obviate this difficulty, it has been insisted that the title was divested by the marshal’s sale as completely as it could have been by eviction. We have not been furnished with any authority to show that a sale either by a marshal or sheriff, is equivalent to eviction. Manifestly it is not so, since the original vendor may still protect his vendee by purchasing from the marshal’s vendee. Or it may happen that the title acquired from the marshal would not be sufficient to effect an eviction. The voluntary abandonment in this instance, gives no strength whatever to the defence. A court of law, although the proper tribunal for the trial of titles to land, will not try such titles collaterally. The proceeding must be direct, otherwise the title cannot be questioned. Where there has been an eviction, the defence of failure of consideration may be let in, because the superiority of the outstanding title is then established by a judicial determination. The inquiry is then narrowed down to a single matter of fact, susceptible of being proved by record evidence. This doctrine is admitted when the vendor conveys by warranty and lets the vendee into possession, there being an outstanding title in another; but it is said the rule does not apply where the vendor has the legal estate, subject to be defeated by sale under a judgment lien. We do not perceive any ground for this distinction. In neither instance is the covenant of warranty broken but by eviction.

We need not inquire how far the defence of failure, of consideration may be set up where there is a covenant of seizin, which is broken as soon as entered into if the vendor has no title. There is no such covenant in this case. Such a covenant can only arise under the statute from the use of the words “grant, bargain and sell,” when there is no express covenant. Where there is an express covenant, that is the extent to which the vendor is bound. An affirmative covenant is negative to what is not affirmed. Sugden on Vendors, 349; Weems v. McCaughan, in MS. and authorities there cited. In New York, it seems, a breach of covenant of seizin may be let in as a de-fence under appropriate pleas where the action will , admit of it, for the purpose of reducing .the plaintiff’s damages. Talhnadge v. Wallis, 25 Wend. 107.

The preceding view of the subject renders it unnecessary for us to go into an investigation of the second proposition of counsel, to wit, what influence had the sale by White to Hoy and Thorn in this cause, since the argument on this subject presupposes the defence to be valid if divested of the influence of that sale. The defence is not available, even if this sale had no influence, as has been insisted. We differ with counsel, however, in regard to the facts. The contract of White seems to have been designed as an assignment or transfer of whatever right he had, and so it was considered by all parties, and if we are correct in this view, then Hoy and Thorn acquired White’s equity, which was prior in point of time to the judgment lien. It may be true that Hayes had a right, on White’s failure to pay, to elect to rescind the contract; but he did not do so; on. the contrary, he was proceeding to enforce it by sale under the deed of trust, when the plaintiffs in error purchased White’s interest, which was on the 10th of February, 1839. This purchase was made in view of incumbrances, and in order that they might prevent a forced sale of the property by compromising with claimants, and obtain title in their own names. On the 26th of the same month, Hays conveyed to them by deed for the same amount of money that was due him from White; and this he did, after being advised by counsel that the contract of White would justify him in doing so. Thinking then as we do, that there has not been such a failure of consideration as to constitute a good defence,

The judgment of the court below must be affirmed.  