
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1811.
    Obadiah Johns v. Stephen Nixon.
    If one purchase land in fee, and receive a deed of conveyance containing only a general warranty; and it shall afterwards appear that the vendor’s title is not good ; the purchaser shall be entitled to a remedy at law by discount, or action, immediately, before eviction; and is not bound to bring an action of covenant on the deed of conveyance, where he sets up a discount.
    Motion for a new trial. Assumpsit on a promissory note of hand,, tried before Smith, J., in Richland district. Notice of discount, in nature of a special plea, stating that plaintiff had contracted to purchase a certain tract of land from one Busby; that before he received a title from Busby, he sold the same land to the defendant, and gave a bond to make titles. That plaintiff and defendants añero wards agreed, that defendant should accept of Busby’s title, and exonerate the plaintiff from his bond; in pursuance of which, a title was made by Busby to the defendant. But afterwards, Busby’s title being found insufficient, the defendant insisted on a compliance from the plaintiff with the condition of his bond'. The plaintiff on his side contended, at the trial, in opposition to the discount, that the bond was discharged, by the defendant’s acceptance of a title from Busby. It appeared that Busby’s title ivas not good ; another person having a better title.
    The verdict was for the defendant.
    Egan, in support of the motion,
    contended, that the defendant’s remedy was on the deed of Busby, which contained a warranty; and that the bond of the plaintiff to make a title, was discharged upon the acceptance of the title from Busby. The discount claimed, being on the bond, cannot take place. T-he title to the land cannot be tried on this collateral issue. At any rate, the defendant cannot be entitled to damages before eviction, even if the. bond to make titles could be construed as equal to a general warranty of title. The condition of the bond was performed. “ Good and lawful titles” were made. ,
    Chappell, contra.
    
    Cited 2 Esp. Rep. 548, and the case of Sumter*v. Welsh, in this court; also, 3 Bos. and P. 162, 181; and argued, that as the money, which was the consideration of the contract for the land, had not been paid, and as the title accepted for the land, was not a good title, according to the contract, it was lawful to retain the money; and that it was lawful and equitable to consider the whole contract as rescinded, upon the discovery of a better title than Busby’s, on the ground of mistake. That parol evidence was admissible to show the1 circumstances under which the contract was entered into. This did not go to contradict the deed of Busby, but only to show how it was given and received, and upon what consideration. The title was made, but was not accepted. It could not be considered as absolutely accepted until the money was paid.
   3d May, 1811.

Nott, J.,

delivered the opinion of the court. The discount was admissible. The plaintiff was not surprised by the defence, set up on the trial. He does not pretend he was. If he had been, it would be a good ground for a new trial, unless it should appear that he might have been prepared to rebut the de-fence, if he could, and failed, from neglect, to do so. Busby is to be considered as the agent of the plaintiff in making the title ; and the plaintiff was bound for the sufficiency of that title. This sort of defence has often been set up in our courts, and allowed to prevail, where founded in justice and equity, upon the principles of the civil law ; where there is a total failure of the consideration, or a considerable failure, from some material defect in the thing which *s subjec!; °f a contract; either as to the title, quantity, or quality. The injured party, in such a contract, although no injury has been intended, is not obliged to wait until he is evicted before he will be entitled to redress; but he may seek his remedy immediately by action, or insist on it by way of discount, if he has an opportunity, A contrary doctrine would involve the most mischievous consequences. Neither is he bound to seek relief in an action of covenant, although he should be entitled to immediate relief, on a warranty in the title, that the grantor had a good title; but may claim a discount, in lieu of damages for a breach of warranty.

It was not objected in the District Court, that the plea was not a notice relative to the deficiency of title, but only for non-performance of the condition of the bond. That objection was not taken there, and cannot be noticed here. The plaintiff was not surprised by the evidence ; and it appears that justice has been correctly done by the verdict, and it ought not therefore to be disturbed. See the case of Sumter v. Welsh, 1 vol. 539.  