
    George Christian against William Scott.
    
    
      December, 1824.
    Assignee against Obligor of bond and issues on pleas of frand and'fáilure of consideration.
    Testimony is admissible to prove that oblig- or, after discovering the fraud, by agreement with obligee,submitted this ana other matters between them to arbitration; that after award made he agreed to it, and took the benefit of it.
    2, The fraud alleged being in obligee’s representations of bis title to lands sold to obligor, on which there were incumbrances, the bond being for part of the price, if obligee put obligor into possession,and he retains possession and takes upon himself the ownership, he cannot avoid the payment of the bond under the plea of fisnd.
    THIS was an action of debt by Christian against Scott m Madison County Court, on two bonds for $2000 each, payable to John Evans, and by him assigned to the plaintiff; to which defendant plead failure of consideration and fraud, with leave to give special matter in evidence; on which issues were taken and verdict and judgment rendered for defendant. On the trial the defendant proved that the bonds were given in part consideration for a tract of land sold by Evans to him for $11,000, and that he had given other bonds for the residue of this sum payable to Evans. That Evans, when he made the sale, declared that he had a fair title, and that the land was free from all incumbrance. The defendant also gave in evidence the following deeds, all for the same land, to wit: From John Brozvn and wife, to Caleb Brown, dated 9th of March, 1819, From John Brown and wife, Parmelia and Daniel Brown and others, to Evans, dated 17th of April, 1820. From Evans, dated 17th of April, 1820, to Thomas Brandor in trust to secure to Brown the payment of $4,000, and to indemnify him from all damage in consequence of an attachment, Massengale against Evans, which had been levied in the hands of Brown as garnishee. A deed from Evans and wife to Scott, the defendant, dated 20th day of April, 1820, all of which deeds had been duly recorded. The defendant proved that this last deed was made one day before the deed of trust from Evans to Brandon had been recorded, but three days after it had been delivered into the Clerk’s office to be i’ecorded. The plaintiff then proved that soon after the sale by Evans to Scott, (thei’e- being no proof that Scott knew of the encumbrances on the land,) Evans delivered possession to Scott, who retained possession until the time of trial.
    It was also proved that Brandon, the trustee, advertised the land for sale, and that Scott obtained an injunction prohibiting the sale; and that afterwards the Court made an interlocutory decree (in the above mentioned suit in Chancery,) Scott complainant, and Brown, Evans, and Brandon defendants by consent of the parties, reciting that Scott had given to Brown two notes with security for $1000 each, and a note without personal security for $2000, to secure which it was agreed that the land should remain bound ; and reciting that Caleb Brown, the bargainee in the deed first mentioned, had since died, and his right to the land had descended to his brothers and sisters, five of whom were of full age and five within age ; that it was agreed that before Brown should demand payment of the second note of $1000 he should produce a release from his two oldest sons (who would before then have come of full age) of all right and claim to the land; and that before he could demand payment of the note for $2000 he should produce a like release from his three youngest children (all of whom would be of age before this last mentioned note should become due). It was therefore ordered and decreed, that should Brown, at the first term after the 31st day of March, 1831, (the day on which the note for $2000 was payable) produce the release of his five children, who were under age when the above mentioned notes were given, of all right or claim in the land; and make it appear that Scott had failed to pay off said note for $2000 and interest thereon; this Court at said term shall dissolve the injunction, and decree a sale of said land to satisfy said sum and interest. It was proved that Caleb Broten had died before the deed from Brown to Evans was made.
    The plaintiff then offered to introduce evidence to shew that there had been large dealings between Evans and Scott, both in North Carolina and in this State ; that after Scott discovered that the deed of trust had been given to Brandon, and after Evans had assigned to the plaintiff the bonds on which this suit was brought, the defendant and Evans, without the presence or authority of the plaintiff, agreed to leave their business, including the matter of the sale of this land and the lien held thereon by Brown, to arbitrators ; that in conformity .to this agreement, which was by parol, they submitted these matters of difference to --; but before the submission, said Evans and Scott stated to the arbitrators that the whole contract in relation to the land, was rescinded, and that all the aforesaid matters were submitted to their award.
    
      The arbitrators by parol awarded that Scott should paj to Christian the two notes on which this suit is founded (they having been previously assigned to him), and that Evans should deliver up the other notes, amounting to $7000, to be cancelled; and that Scott should take the land subject to the incumbrances arising from said deed of trust and the claim of the infant heirs of Caleb Brown. The plaintiff further offered to prove that Evans did deliver to Scott said notes for $7000, being the balance of the price agreed to be given by Scott to Evans for the land, after deducting the amount specified in the two bonds on which this action is brought; that Scott agi’eed to the award, and the notes delivered up were cancelled ; all which evidence on the objection of the defendant the Court rejected.
    After the evidence was closed, the plaintiff by his attorney moved the Court to instruct the Jury, that although Evans made fraudulent representations-as to his title in the sale of the land to Scott, yet if Scott received possession from Evans, and carried the contract into execution by taking .upon himself the ownership of the land, payment of the obligations on which this suit is brought could not be avoided under the plea of fraud. The Court refused to give such instructions, and instructed the Jury that if they should believe that the contract for the sale of the land was fraudulent, and that the bonds sued on were in part of the purchase money, the bonds, having originated in fraud, could not be recovered; and that they ought to find for the defendant; to all which the plaintiff excepted, &c.
    On his writ of Error to this Court the plaintiff assigned the matter of the bill of Exceptions as Error.
    
      John M. Taylor for plaintiff in Error,
    cited 2 Whea. 62. 4 Taunt. 329. 7 John. 259, 376. 2 John. 1, 395. 2 Mass. 432. 9 John. 337. Kidd on Awards, 29, 104, 179,. 12 Mass. 134. 1 Vezy, 367. 2 Vez. 22.
    
      Clay, for defendant in Error.
   The Chief Justice

delivered the opinion of the Court.

We are of opinion that the Court below erred in rejecting the testimony offered, and also erred in refusing to give to the Jury the instructions prayed for on behalf of the plaintiff.

Let the judgment be reversed, and the cause be remanded.

Judge Minor having been of counsel, did not sit.  