
    Theodore B. Wiggins et al. vs. John W. P. McGimpsey, use of Wm. Robertson, Trustee of the Commercial Bank of Natchez.
    Where there has been a sale of land, and notes given for the purchase-money, one of which is transferred by the vendor; and after the transfer, which is known to the vendee, a resale of the land is made by the vendee to the vendor, or a rescission of the original contract of sale made, by the terms of which, the original vendor is to take up and return to his vendee the note thus transferred, and the vendor has failed to take up the note, upon which a suit is brought by the holder against the maker: Held, that the circumstances constitute no failure of consideration of the note in the hands of the holder, and he is entitled to recover upon it.
    Where a bond to make title to land is given, or a contract for its sale entered into, and the vendee is put in possession, whether the undertakings of the parties, as to the malting of title and payment, be concurrent and dependent or independent, if the vendor be not able to make a good and operative conveyance to the vendee, or if there be any defect in his title, it will be a good defence to the vendee in bar of an action for the recovery of the purchase-money, although there has been neither sale under execution nor eviction of possession.
    A different rule, however, prevails where the contract for the sale has been executed ; in that case the vendee cannot resist the payment of the purchase-money, on the ground of defective title in his vendor, unless there have been an actual eviction.
    Even if the vendee of land, who has a bond for title, have no knowledge at the time of sale of any incumbrance upon the land, the existence of such incumbrance will constitute no failure of consideration of a note given for the purchase-money, if the vendor be able, at the time appointed in his contract, to make a title.
    If, however, the incumbrance at the time of sale be in the shape of a judgment against the vendor, being matter of record, the vendee is presumed to have purchased with notice of the defect in his vendor’s title.
    Where a note is given for the purchase-money of land, and is transferred by the vendor to a third party, and with knowledge of that fact the sale is rescinded, and the land revested in the vendor, after which it is sold under a judgment against the vendor, existing at the date of the original sale against him, such execution sale will work no failure of consideration of the note so transferred.
    It is not every refusal to state legal principles to a jury, however clearly correct they may be as abstract propositions of law, which will be decided to be error ; instructions must be applicable to the facts, and pertinent to the questions raised by the evidence; and if not, they should be refused.
    It was held, therefore, not to have been in error an the circuit court to refuse to instruct the jury, in an action for a note given for land purchased by the defendant, brought by the assignee of the vendor, that a resale of the land to the vendor, and agreement between him and the vendee that the purchase-money should not be paid, made before notice of the assignment, was a bar to the action ; the proof being that the resale of the land, and agreement as to the purchase-money, were made after notice of the assignment.
    The refusal to give a correct instruction, or the giving an erroneous one, are not sufficient to set aside the verdict, if it be notwithstanding right upon the law and facts.
    A purchaser of land, who buys with a full knowledge of the defects in the title of his vendor, cannot be relieyed from his obligation to pay in consequence of such defects ; and as judgments are matters of record, they must he presumed to be known to the vendee, if any against the vendor, and will therefore constitute no defence against the payment of the purchase-money.
    
      Where a sale of land was rescinded, and the vendor agreed with the vendee to take up the note of the latter, given for the land, and passed away by the vendor, such an agreement will be a recognition on the part of the vendee of the validity of the note.
    In error from the circuit court of Madison county; Hon. Robert C. Perry, judge.
    John W. P. McGimpsey, who sued for the use of the Commercial Bank of Natchez, on the 5th of October, 1843, sued Theophilus B. Wiggins and others, on their note for $750, dated March 15, 1839, and due twelve months after date.
    The defendants pleaded non assumpsit. '
    On the trial, the plaintiffs read the note in evidence, and rested their case. The defendants then offered in evidence this agreement between Wiggins and McGimpsey, viz. :
    “Theo. B. Wiggins has this day purchased a tract of land of me, and in part payment for which has given me one note for seven hundred and fifty dollars on Commercial Bank of Natchez, at Canton, falling due 13th March, 1840. Now, should the said Wiggins be enabled to pay more than half of said notes, I agree to have them renewed in bank for him.
    “ 15th March, 1839. J. W. P. McGimpsey.
    “ N. B. The above note of seven hundred and fifty dollars is the only note that has not been delivered to Mr. T. B. Wiggins. J. W. P. McG.”
    They then proved, by John B. Moore, that McGimpsey sold to Wiggins a tract of land in 1839, and took his notes, with security, for the purchase-money; that the land was afterwards sold as the property of McGimpsey, under a judgment older than the sale to Wiggins; that he heard McGimpsey and Wiggins say, some year after the date of this contract, they had rescinded it.
    They proved, by A. J. Gillespie, that the note sued on was given for land sold by McGimpsey to Wiggins, which was after-wards sold under execution against McGimpsey, and bought by H. R. W. Hill, under execution older than the sale of the land. They also proved, by Vincent Moore, that in 1839, McGimpsey sold to Wiggins a tract of land, for which Wiggins gave his notes, one of which, indorsed by Grafton, one of the defendants, was, as witness understood from McGimpsey and Wiggins, transferred to the Branch of the Commercial Bank of Natchez -; after which McGimpsey and Wiggins rescinded the contract; Mc-Gimpsey was to return the notes, and procure the one held by the bank and release it also; subsequently the land was sold by the sheriff of Madison to satisfy an execution in favor of J. H. Scott against McGimpsey; Wiggins lived on the land from the time he purchased until the contract was rescinded; there was a reservation in the bond or deed of all mines, minerals, and pine timber.
    This was all the' evidence offered on the part of the defendants.
    The plaintiff then introduced the deposition of N. D. Ingram, who proved, in substance, that Wiggins, in a few days after he made the purchase, informed him that he had bought land of McGimpsey at eight dollars per acre, on a credit of one, two, and three years; this purchase was in 1839; Wiggins informed witness that he gave his own notes, without security, to Mc-Gimpsey; that he resold the land, or rescinded the sale; that McGimpsey had passed off one of the notes to the Commercial Bank at Canton, and, by the terms of the contract of rescission, McGimpsey was to take up the note in bank, and' deliver it to Wiggins; that he gave up two of the notes, and told him the Other had been indorsed by Thos. Grafton and Ira Mullen, at the request of McGimpsey, at the time he transferred it to the bank; the rescission took place in the fall of 1839, or spring of 1840; he thinks in the fall of 1839.
    The court, on this state of facts, instructed the jury, at the instance of the plaintiff, as follows:
    1. If the jury believe, from the evidence, that the note sued on was executed by Wiggins for land purchased of McGimpsey, and that Wiggins went into possession until the resale to Mc-Gimpsey, and that the note sued on was transferred to the Com - mercial Bank of Natchez before said resale, and that fact was known to Wiggins at the time of the resale, then there is no want of consideration or failure of consideration on that account. ‘
    2. If the jury believe, from the evidence, that there was a judgment against McGimpsey of older date than his deed or bond to Wiggins, a sale made by virtue of such judgment does not work a failure of consideration, but there must also' be an eviction by title paramount.
    The following instructions were offered, on the part of the appellants, and refused by the court, to wit:
    1. That if the jury believe, from' the evidence, that the note sued on was given to McGimpsey for land, and that, at the time of the contract for the land, there were judgments in the courts of this state against McGimpsey, operating as a lien on the said land, and that the same was afterwards sold under.executions issued on said judgments, and the title conveyed by the sheriff to the purchaser, that in that case the consideration of the note failed, and they ought to find for the defendants.
    2. That if the jury believe, from the evidence, said note was given for land purchased by Wiggins from McGimpsey, and that afterwards, and before notice of the transfer to the bank, Mc-Gimpsey and Wiggins rescinded the contract for the land, that McGimpsey agreed that the purchase-money should not be paid for it; that, in that case also, the law is for the defendants.
    Judgment was rendered for the plaintiff for the principal of the note and interest.
    The defendants made a motion for a new trial, which was overruled; whereupon they embodied the facts in a bill of exceptions, and sued out this writ of error.
    
      Geo. Calhoun, for plaintiff in error,
    Cited Hoy v. Taliaferro, 8 S. & M. 727; Peques v. Mosby, 7 lb. 340; and discussed at length the propriety of the instructions, insisting that one given for the plaintiff was erroneous, and those for defendants improperly refused.
    
      H. A. H. Lawson, for defendant in error,
    Cited Com. on Cont. 16; Story, Notes, 203, § 186; Smith v. Sinclair, 15 Mass. R. 171; 2 Wheat. 16; 7 Cranch, 350; Graham, New Tr. 301; 4 How. 231; 5 lb. 495.
   Mr. Justice Smith

delivered the opinion of the court.

This was an action of assumpsit brought in the circuit court of Madison, on the promissory note of the plaintiffs in error. The note was given to secure, in part, the purchase-money of a tract of land sold by McGimpsey, the nominal plaintiff below, to Wiggins, one of the plaintiffs in error, in 1839. The defence set up was a failure of consideration. It appears that Wiggins was let into the possession of the land, and continued to hold it until after a resale to McGimpsey, or a rescission of the contract for the purchase and sale, when he returned the possession to the latter. Before this occurrence, McGimpsey had transferred the note in suit to the Branch at Canton of the Commercial Bank of Natchez. This fact was known by Wiggins, and when the sale Was rescinded, or the land resold, it was understoood that McGimpsey was to take up the note then in' the possession of the bank. At the date of the sale, a judgment lien existed on the land, which was sold by the sheriff under an execution which issued on the judgment; but the sale was not made until after Wiggins had given up the possession, as above stated. It is uncertain, from the testimony, whether there was a conveyance by deed of the land to Wiggins, or whether there was only a bond for titles made by McGimpsey. We are uninformed by the testimony as to the character of the covenants of the parties, whether they were dependent or independent; and it is wholly silent as to whether Wiggins purchased with or without a knowledge of the existing defects of the vendor’s title.

Upon this state of facts, the court, at the instance of the plaintiffs, charged:

1. “ That if the jury believe, from the evidence, that the note sued on was given by Wiggins for land purchased of McGimpsey, and that the former went into possession and continued in possession until the resale to McGimpsey, and that said note was transferred to the bank before said resale, and that fact was known by Wiggins at the time, there was on that account no failure or want of consideration.”

To this instruction it is objected, that it assumes as a fact established or admitted, that there was a resale of the land, and not a simple rescission of the contract by the Vendor and vendee. Hence it is argued that the charge was calculated to mislead, by assuming that to be true which it was the exclusive right of the jury to decide by the evidence before them. There was evidence of a resale by Wiggins, derived from his own statements; but it was immaterial in the aspect of the case to which the principle of the charge was applied, whether there had been a resale of the land, or only a rescission of the contract for the purchase and sale; for if the note was founded on a sufficient consideration, the rights vested in the bank by the transfer, with the knowledge of Wiggins, could not be affected by either a rescission of the contract for the sale of the land, or a resale by the vendee to the vendor, after the transfer. Hence there, was no error in this instruction.

2. “That if the jury'believe, from the evidence, that there was a judgment against McGimpsey of older date than his deed or bond to Wiggins, a sale made by virtue of such judgment does not work a failure of consideration, (in the note,) but there must also be an eviction by title paramount.”

Where a vendee is in possession of land under a deed with covenants of warranty, he will not be permitted, in an action at law, to resist payment of the purchase-money on the ground of failure of consideration arising from defect of title in his vendor, unless there has been an actual eviction. Hoy et al. v. Taliaferro, 8 S. & M. 727. In cases of this character it is also settled that a sale by the sheriff, under execution, of the land, or a voluntary abandonment of the premises, is not equivalent to an actual eviction. Ib. 741. These are the settled rules where the contract of sale has been executed by a deed of conveyance warranting the title, but the instruction goes farther and embraces cases where the vendee is in possession under an unexecuted contract, holding only a bond for titles upon the payment of the purchase-money, or on the performance of some other condition.

When the vendee is in possession of land under a contract, the covenants of which are concurrent and dependent, or where the undertakings of the parties are independent, if the vendee shall tender the purchase-money, or offer to perform his part of the contract, the defect of title in the vendor, ór his incapacity to make a good and operative conveyance, will constitute a good defence in bar of the action for the recovery of the purchase-money, although there has been neither sale under execution, nor eviction of possession. Peques v. Mosby, et al. 7 S. & M. 340; Robb v. Montgomery, 20 Johns. R. 20; Sage v. Ranney, 2 Wend. R. 534.

Hence this instruction was too broad as applied to the facts of this case. It necessarily excluded all inquiry on the part of the jury in regard to any defect in the title, or want of title in Mc-Gimpsey, unless there was also proof of an actual eviction.

The proposition contained in the first instruction requested by the defendants, was, that a failure of consideration in the note was produced by means of the sale of the land by the sheriff, and the conveyance to his vendee, made under the judgments against McGimpsey, which existed at the time of his sale to Wiggins.

The judgment liens against the land, existing at the time of the sale, did not necessarily cause a failure of consideration in the note. If the vendor was able to make a title at the time appointed in the contract, an existing incumbrance at the time of the sale could not be set up as a failure of consideration, and this would be the case if the purchase were made without notice of the incumbrance. But here, according to the case of Phillips v. Lane, 4 How. 122, as the incumbrance existed by judgment, the vendee is presumed to have purchased with notice of the defect in his vendor’s title; nor will the sale by the sheriff destroy the consideration of the note. It was shown by the evidence that the contract had been rescinded, or that the land had been resold to the vendor, after the transfer of the note to the bank, with a knowledge of that fact by the vendee. The sale and conveyance of title, therefore, by the sheriff, could not affect the consideration of the note. If it was void, it was void for some other reason than the sale of the land, to which the vendee held no claim, and by which he could in no wise be affected. Hence this instruction was correctly withheld.

The second instruction requested by defendants, and which was also refused, is to the following effect: If the note in suit was given for the price of the land sold by McGimpsey to Wiggins, and there had afterwards been a rescission of the contract of sale by the vendor and vendee, and an agreement by the vendor that the purchase-money should not be paid, entered into, before Wiggins had notice of the transfer of the note to the bank, Wiggins was discharged from liability.

The truth of the principle embraced in this instruction will not be controverted. If the contract for the sale and purchase of the land were rescinded by the parties thereto, and an agreement entered into, that the vendee should not be required to pay the notes given for the purchase-money, which was equivalent to a release, before he had notice of the transfer, it is clear that such rescission and agreement constituted a good defence to the action. It is not, however, every refusal to state legal principles to a jury, however true they may be as abstract doctrines of the law, which will be decided to be error. Instructions should be applicable to the facts, and pertinent to the questions raised by the evidence. If they are not, they should be refused, although they may present the clearest principles of law. 3 How. 143, 388.

In the case under examination, there was no evidence which tended to show that the rescission or resale occurred before Wiggins had notice of the transfer of the note. • On the other hand, the evidence is distinct that Wiggins was informed of the transfer, at the time of the rescission of sale. But if it be conceded that the court erred in refusing this instruction, the question is presented whether for this error, and the erroneous charge given at the instance of the plaintiff, the verdict ought to be disturbed. We think it should not. It was correct according to the law and the facts.'

■ The execution and delivery of the note to McGimpsey raised the presumption that it was made upon a sufficient consideration. To prevent a recovery, it was incumbent on him to establish a failure of the consideration.

It is uncertain from the evidence whether Wiggins took a bond for titles, or received a deed for the land; or whether he took the precaution to secure himself by any covenants whatever.

There was no evidence that he had actual notice of the judgments against McGimpsey; but by implication of law he was a purchaser with notice of the existing incumbrances. 4 How. 128; 12 Wheat. 180. It is well settled, that a purchaser who buys with a full knowledge of the defects in- the title of his vendor, cannot be relieved from his obligation to pay in consequence of such defects. 3 A. K. Marsh. 288; 13 S. & R. 386 ; 5 How. 284. Hence the judgment liens existing at the time of sale, furnished no defence against the payment of the note. Nor was he placed in a better condition to defend by the execution sale. For antecedent to the sale made by the sheriff he had resold the land to his vendor, or had rescinded the contract for the purchase, with full knowledge of the fact that the note had been previously transferred, and was then in the hands of a bona Jide holder. By either the rescission or resale, he was divested of all interest in the land, which was invested in McGimpsey. Hence the execution sale of the land, as the property of the latter, could not affect the title of Wiggins-; and therefore did not defeat the consideration of the note.

Moreover it is shown by the evidence, that, at the time when the contract for the sale of the land was rescinded, it was the understanding of McGimpsey and Wiggins that the former should take up the note, then in the hands of the bank, and restore it to the latter. This was a recognition of the validity of the note by Wiggins, and evidence that he relied on McGimpsey for the payment of it.

Judgment affirmed.  