
    Joshua Bennett vs. Patrick Ryan.
    In an action on a promissory note given in consideration of a warranty deed of land, the defendant cannot introduce paroi evidence that other land was previously agreed to be conveyed to him, not covered by the description in the deed, and from which he was afterwards evicted.
    Action of contract on a promissory note. Answer, failure of consideration.
    At the trial in the court of common pleas, it appeared that the note had been given as part of the consideration of a deed from the plaintiff to the defendant, of land “ with the buildings thereon,” with full covenants of warranty.
    The defendant then offered to show that he bargained with the plaintiff for the buildings and the land under them, as shown on a certain plan, and had taken the deed on the representation that they were included within the boundaries in the deed ; but that afterwards he found that the buildings were set partly upon the land of a third person, who evicted him and compelled him to remove the buildings at an expense greater than the amount sued for.
    Bishop, J. ruled that the evidence did not support the defence, and directed a verdict for the plaintiff. The defendant alleged exceptions.
    
      
      B. F. Butler, for the defendant.
    The evidence which was offered tended to show that the parties bargained for certain buildings and the land under them, and that the plaintiff falsely-represented that the same were conveyed by the deed in consideration for which this note was given. This was a fraud, as the plaintiff was bound to make true representations, if any. Hazard v. Irwin, 18 Pick. 108. The note in suit was not given for the land described in the deed, but for the buildings and land pointed out and bargained for. The evidence offered tended to prove a total failure of consideration, and should therefore have been admitted. Wearse v. Peirce, 24 Pick. 145. Daggett v. Daggett, 8 Cush. 520. Otherwise, the defendant has no remedy; for the covenants in the deed extend only to the land described in it. The questions of fraudulent intent and failure of consideration should not have been withdrawn from the jury. Prescott v. Wright, 4 Gray, 461.
    
      A. R. Brown, for the plaintiff.
   Shaw, C. J.

The note in suit was given in consideration for the deed actually given and accepted by the grantee. The attempt now is to show by paroi .evidence that the agreement was to convey more land than the deed conveyed, which is repugnant to the deed, and inadmissible. If there was a fraudulent misrepresentation, that his land was more than it really was and embraced the whole surface on which a certain building stood, which representation was wilfully false, and the defendant acted upon it to his damage, a separate action will lie. Brown v. Castles, 11 Cush. 349, and cases there cited.

Exceptions overruled.  