
    
      Ivy Taylor vs. Levi Fulmore.
    
    In an action on a note given for the purchase money of land, an outstanding asserted title in another, who is constructively in possession of the land, is a good defence.
    Where there is no accounting for rents, no equitable title, no reconveyance, or any thing in which a law court cannot do as ample justice as a court of equity, the defence of failure of const* deration on account of title in another is available at law.
    
      Before Evans, J. at Abbeville, Spring Term, 1844.
    This was an action jon a promissory jiote. The defence was failure of consideration. Taylor sold to Fulmore a tract of land, described in the deed as containing two hundred and four acres, with a general warranty. To all this land he had a good title, except a small piece, which was represented to be vacant. For this piece, which was found on measurement to contain thirty-three acres, the note s'ued on was given ; other notes were given for the balance. It turned out that this piece was not vacant, but included in an old grant, owned by Price. No part of this thirty-three acres was in the possession of either Price or Fulmore; but Price lived on his tract, and claimed this as included within his lines, of which there whs no doubt.
    His Honor decided that an outstanding asserted title to land, might be set up as a defence, to a note given for the purchase money. Price was the owner of the land, lived on a part of it, was constructively' in possession, and set up a claim to it.
    The jury found for the defendant, and the plaintiff appealed, on the ground,
    Because the presiding judge held, and instructed the jury, that a discount for unenclosed land, claimed by a third person against the vendee, was admissible in evidence against the vendor, when the possession of the vendee was undisturbed.
    
      Burt & Thompson, for^the motion.
    
      Perrin & McGowan, contra.
   Curia, per

Evans, J.

Whether the purchaser, under the circumstances, could set up as a' defence, that the land belonged to another, is the only question of law involved in the case. It appeared from the evidence, that the note sued on was given for the identical land covered by Price’s older title 5 other notes were given for the remainder of the tract of land sold. It was proved that Price had an unquestionable title to it; that he lived on a part of his tract, and asserted his title to this land, of which, as a part of the land included within his grant, he had a constructive possession. In such case, so far as I know, it has never been supposed a failure of consideration could not be pleaded ,to an action for the purchase money. There is no accounting for rents, no equitable title, no reconveyance, or any thing in which a law 'court cannot do as ample justice as a court of equity. The motion is dismissed.

Richardson, O’Neall, Butler, Wardlaw and Frost, JJ. concurred.  