
    Chaney Farrow v. William B. Mays.
    In an action of assumpsit, where there has been a total failure of consideration, it may be given in evidence under the general issue.
    
    Where the defence only goes to show a defect in the article conveyed, or a defective title to part of the article, or to one or more where the title embraces several, it must be made by discount.
    
    This was an action of assumpsit on a p omissory note, for $600, given by the defendant to the plaintiff.
    The consideration of the note was the conveyance of three shares of a tract of land, which was made by a deed in the following words : “ Know all men by these presents, that I, Chaney Farrow, of the district of Spartanburgh, and State aforesaid, have granted, bargained and sold unto William Mays, of the district of Edgefield, and State of South Oaroliua, all my right and title which I now have in a certain tract of land lying on Horn’s Creek, in the district and State aforesaid, adjoining lands belonging to John Gray and John Byan, and William Hill, and more particularly to describe land, be it known, that it is the tract of land formerly belonging to Samuel Walker, deceased, and the land on which Mrs. Martha J. Walker now lives. Be it further understood, that I have, and it is my intention, and I do hereby relinquish all my claim, as well that which I claim in right of myself as two shares which I have purchased of Mrs. Eebecca Beams and Joseph Eddins, unto the said Wm. Mays, for and consideration of $900, to me in hand paid, by the said William Mays, the receipt whereof I hereby acknowledge ; and I do hereby bind myself, my heirs, executors and administrators, to defend unto the said Wm. Mays, his heirs, executors, administrators, or assigns, the said three shares to the said tract of land, as described as aforesaid, from all and every claim or claims which shall or may hereafter arise on the part of myself, Eebecca Beams, her heirs, administrators, &c , and also from the claims of Joseph Eddins, his heirs, administrators, or any person or persons claiming under him, the said Jos. Eddins, or her, the said Eebecca Beams.”
    
      It was admitted on the trial, that the plaintiff had a perfect title to one share ; but the presiding Judge is now uncertain, whether this was the share of the plaintiff, claimed in right of his wife, to that claimed by purchase from Eddins, but he believes it was the latter. The plaintiff’s wife is dead, and has left children under age, who are still living. The plaintiff married a daughter of Samuel "Walker; Eddins married another; and Beams another; and in their right, or under them, the several shares in the land were claimed. The defendant was and is in possession of the land, and has not been evicted. There was no proof of any title from Beams and wife to the plaintiff, except an order signed by them, addressed to the executors of Walker, acknowledging that they had, for sufficient consideration, transferred their right, and praying the executors to pay the plaintiff the proceeds of their share of the land when it should be sold; nor was there any other proof of title to the land, except an admission that the plaintiff had a good title to convey one share, as before mentioned. The plaintiff had offered to rescind the bargain, but the defendant would not agree to do so. He said he would not take $600 for his own share of the land. The defendant had paid $300, as part of the consideration of the transfer, which was $900, and this note was taken for the balance.
    The defendant contended, that the defect of title entitled him to a verdict.
    *The plaintiff contended, that the conveyance only transferred his claim, such as it was in point of fact, with which the defendant was acquainted at the time of the contract; and if the conveyance had any greater extent, and went to the assurance of a good title and warranty, yet, that until eviction, no gro nd of defence could arise; and that this defence in this case could only be made by pleading or giving notice of a discount.
    The presiding Judge charged the jury to find for the defendant, which they did accordingly.
    The case was tried before Mr. Justice Colcocic, at Edgefield, in the Fall Term of 1818.
    'The plaintiff now moved for a new trial on the following grounds :
    1. Because the defendant was never evicted.
    2. Because the plaintiff only conveyed his claim, and the defendant, at' the time of the contract knew the nature of it.
    3. Because no discount was pleaded.
   ’The opinion of the Court was delivered by

Cheves, J.

So much of the deed of conveyance in this ease as goes to transfer the plaintiff’s right, is without ambiguity, and clearly does no more thau transfer his right, interest and claim, whatever they might be. But the warranty which seems to be in direct repugnance to the body of the deed, and makes it a very unusual instrument, (the object of which it is not easy to divine,) causes all the embarrassment in the case. On the effect of this warranty, I will give no opinion at this time, nor on the questions connected with it. I am of opinion, this defence could only be made by pleading or giving notice of a discount. Where the defence goes to show a total failure of the consideration, it may be given in evidence under the general issue, so if there has been a rescission of the contract; but when the defence only goes to show a defect in the article conveyed, or a defective title to a part of the article, or to one or more, when the contract embraces several,* it must be made by discount. This is the clear practice of this Court, and it is only necessary to inquire what the nature of this defence is. This inquiry will depend on the nature of the contract. Was it entire or several ? Now it appears to me very obvious, that the contract was an entire contract. The consideration is not $300, for each share, but $900 for the whole, and the note, on which this suit is brought, was for $600, part of the gross sum. In this view, as it is admitted, the title to one share is good, the defence only goes to a part of the consideration. But if it could be imagined that the contract was two-fold, and so far several, that the purchase of the share paid for was one, and the purchase of the two shares, for which the note was given, anothei', still the objection will equally prevail. If the two shares for which the note was given, were the shares purchased of Eddins, and Beams and wife, the consideration did not wholly fail; for as to one share, the title was good. If they embraced the share claimed by the plaintiff, in right of his deceased wife, the title is not wholly defective; for he had a clear right to one third of his wife’s real estate, under the act for the distribution of intestates’ estates.

But I am clearly of opinion, the contract was an entire one. I am therefore of opinion, that a new trial should be granted.

Nott, Gantt and Johnson, JJ., concurred.

Colcock, J.,

dissented, as follows:

On the first ground, it is only necessary to observe, that the defendant did not purchase a present interest, and was not in possession under his deed. A witness said, he was living with his mother-in-law, though he planted differently. This, however, would only be by courtcsey. He therefore could not have been evicted. But if he had been in possession under the deed, in a case determined in the Constitutional Court, at the January sitting, 1812, Furman v. Elmore, it was decided, that upon an action brought to recover the value of a tract of land, the deficiency might be pleaded, ^although the defendant had not been disturbed in his possession.

The determination of the second ground depends on the construction of the deed, principally; and although it is a very singular one, yet, I think, it conveys, and was intended to convey, the vested remainders of the three daughters, and not merely his (the plaintiff’s) claim. In the first part of the deed, the grantor says, “ he has granted, bargained, and sold unto Wm. Mays, all his right and title.” In a subsequent part of it, he says, “ he relinquishes all his own claim, as well as that of Mrs. Rebecca Beams and Joseph Eddins;” and in the conclusion, he binds himself, his heirs, executors, and administrators, to defend to the said Wm. Mays, his heirs, executors, administrators and assigns, the said three shares to the said tract of land. As to the knowledge of the facts on which the claim rested, I will observe, that this cannot affect the question ; but if it can, it will be observed, that Beams, the husband, proved that his wife and himself had signed a paper, the purport of which he believed to be an order on the executors, to pay Earrow their share of the money that should arise from the sale of the land, they having received satisfaction therefor; so that the positive proof goes to show, that Ear-row was endeavoring to get a legal title in himself, and did intend to convey the whole interest.

The last ground is the only one which caused any doubt in my mind. But I think, according to the uniform practice of our Courts, the defendant was at liberty, under the general issue, to give in evidence the failure of consideration. The general position cannot be denied. Here the defendant acknowledged himself satisfied with his title, received from the plaintiff for one share, (Mrs. Eddins’s as I supposed on the trial below,) and so far, the contract was complete, and at an end. The shares had been purchased at $300 each, and the note was for the amount of two. Two of them could not be conveyed, and therefore with them, and them only, it was contended, that the consideration* had failed. The parties then stood upon the same footing, as if the contract had been originally for only two shares. Suppose, instead of three shares to a tract of land, three negroes had been purchased at $300 each, and the defendant had paid for one of them, and got a bill of sale, and afterwards ascertained that two of them were diseased, and he were sued on his note for $800, which had been given for the two so diseased ; would he not have been permitted to give in evidence the failure of the consideration ? I have no doubt, many such cases have occurred.

M’Duffie, for the motion. Butler and Brooks, contra.

But what are the objections ? First, it is said the defendant cannot give in evidence a part failure on a contract; because, if he had paid the whole money, and wished to recover back on the ground of failure in the consideration, he could not bring assumpsit, but must bring covenant; thereby assuming the position, that nothing could be given in evidence under the general issue in assumpsit, which would not be the foundation of an action of assumpsit. But is not this at once controverted by the daily practice of our Courts, and I may say, I think the Courts of England ? Suppose the whole consideration had failed, and plaintiff had held defendant’s note for $900, and had sued on that note; could it be denied that the failure of consideration, as to the whole, could be given in evidence ? I presume not. Yet, if the defendant had first sued, he must have brought an action of covenant.

“ In assumpsit, almost every matter may be given in evidence on the general issue, non assumpsit, on the ground, it is said, that the action is founded on the contract, and the injury is the non performance of it, evidence which disaffirms the obligation of the contract, at the time when the action was commenced, goes to the gist of the action 1 Chitty’s Pleadings, 465. But the truth I take to be this, that when the Courts saw, that this was an effective method of doing justice to parties, and saving a great deal of expense and litigation, it became a general rule. But it was contended, that justice cannot be done in this way; for this verdict *could not be pleaded in bar, or given in evidence in an action brought on the covenant by defendant, after a verdict in his favor in this action. I entertain no doubt but that it could. It is an action between the same parties ; it is a former recovery. It is said, that on the face of the proceedings, it would not appear to have related to the contract ; but this could have been supplied by parol evidence; and it frequently occurs in pleading a former recovery, that parol evidence must be adduced. What is the consequence of granting the plaintiff’s motion ? The defendant is turned round to another action, upon what, at most, can only be considered a technical objection.

I am therefore against the motion. 
      
       2 Rich.. Eq. 349.
     
      
       1 Ante, 81; 2 Rich. Eq. 349, modified, Harp. Appendix, 548.
     
      
       See Vanlow v. Parr, in Errors, 2 Rich. Eq., 349; also 1 Hill, 370; 8 Rich. Eq. 49; 1 McM. 336.
     
      
       2 N. & McC. 189, note.
     