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to the effect that a prerequisite to resisting a payment of the purchase money is the surrender of the possession of the premises, and the offer of the deed for cancelation.

The vendee in possession of land under a deed containing warranties of title is not entitled to the aid of equity to enjoin the execution of a judgment obtained against him in a proceeding to foreclose purchasemoney notes, where the only fact alleged as a ground for the injunction is that a suit has been filed against the plaintiff and his vendor by a third person, in which he claims title to the land. Broocks v. Lee (1907) 46 Tex. Civ. App. 372, 102 S. E. 777. The court said that it is well settled that a purchaser of land who has received a deed thereto cannot defeat a suit for the purchase money on the ground of failure of consideration, unless he shows that the title has failed, in whole or in part, and that he is in danger of eviction, and such defense cannot be established merely by showing that suit has been brought for the land.

In Strong v. Waddell (1876) 56 Ala. 473, it is said that the law is settled in that state that a vendee who has gone into possession under a deed with covenants of warranty cannot, unless there was fraud in the sale to him, or the vendor is insolvent, so long as he remains in possession, defend, either in law or in equity, against the payment of the purchase money.

In Hughes v. McNider (1884) 90 N. C. 248, where it was sought to offet, in an action on a purchase-price bond, damages for defects in the title due to encumbrances upon the land which were alleged to constitute a breach of the warranty of title, the general rule is stated that the purchaser who has received a conveyance, is in possession, and not disturbed, will not be relieved on the mere ground of a defective title, where there is no fraud or eviction, but must rely on his covenant. The court said that this statement would be decisive of the case, if accepted as a correct statement of the defendant's appeal. "But the equity to be en

forced is to be allowed from payment, while the defects exist, and ceases when they are removed. The defense, to be available, must be in the continuance of an imperfect title or encumbered estate, at the time when [payment of] the purchase money is sought to be compelled. It was, therefore, necessary for the defendant to aver, as he does in his answer, the encumbrance to be still subsisting, so that the vendor could not then give a clear fee-simple title to the property; and this the replication meets with a direct denial, declaring that the judgments were all paid, and their liens discharged, early in the year 1878. It then devolved on the defendant to sustain his allegation by proof, and in its absence we must assume the fact to be that there was no such lien when the defense was made an essential element in the alleged equity."

c. Where defect is based upon invalidity of the grantee's deed.

In some jurisdictions a distinction has been made between the rights of a grantee where his title is defective, and the rights of a grantee whose deed is invalid. This distinction appears to be sound, for in the latter case the grantee has no remedy upon the covenants of title contained in the deed, while the existence of such a remedy is one of the principal grounds relied upon for limiting a grantee holding under a valid deed containing covenants of title, to his remedy upon these covenants.

And see Cook v. Mix (1836) 11 Conn. 432, where the court denies that there is any well-founded distinction between a sale of real estate with covenants and a sale of personal property with warranties, and points out that it is well settled that, where a total failure of consideration is shown, it is an answer to an action for the purchase price of personal property, and it is held that the same rule should apply to an action on purchase-price notes for real estate, the deed to which was void. So, in Glenn v. Thistle (1851) 23 Miss. 42, where it was held that a total failure of con

sideration might be pleaded in defense of an action to recover the purchase price of land sold under a warranty of title, the vendor had no title whatever to the premises. This is also the holding in Mason v. Wait (1842) 5 Ill. 127, where the same conclusion is reached, the deed in this case being invalid because made by a guardian without proper authority.

For example, where a deed to the land is invalid and conveys no title, the notes executed by the grantee therein for the purchase price are not enforceable as against him, even though he is in possession. Curtis v. Clark (1882) 133 Mass. 509. The court said: The grantor "was to convey to the defendant a good title to the land, by a good and sufficient deed, at the time of receiving the cash and notes for the price; that he failed to do so, and delivered, instead of a deed, a paper which conveyed no title; that he has never tendered, or offered to execute and deliver, a valid deed; and that the defendant did not intend to accept an invalid deed in lieu of a valid one. For the personal property the plaintiff was more than paid, in cash. The notes, therefore, are to be treated as applicable only to the real estate. The consideration of the note in suit was a part of the price of the real estate. Through the plaintiff's fault, no title was conveyed. The defendant has never sought by bill in equity to compel the plaintiff to make a title to him. The plaintiff has never offered to make such title to the defendant, though it was in his power to do so. Under these circumstances, both parties are to be treated as having rescinded the bargain, so far as the real estate is concerned, and the consideration of the note entirely fails."

The rule that a vendee in possession of land under a deed containing covenants of general warranty of title cannot retain possession and set up a failure of title, when sued for the purchase money, does not apply where, because a power of attorney was a forgery, there was in fact no deed at all, and hence no valid title was conveyed to the vendee. Wheeler 50 A.L.R.-13.

v. Standley (1872) 50 Mo. 509. So, it is held in Lafferty v. Evans (1906) 17 Okla. 247, 21 L.R.A. (N.S.) 363, 87 Pac. 304, that a grantee of a corporation who has entered into possession under a deed by the corporation may defend against an action to foreclose a purchase-money mortgage where the warranty deed executed by the corporation is invalid because of an unauthorized exercise by the corporation of its powers in the execution thereof. It is pointed out that in such circumstances there was neither a conveyance nor a contract as a consideration for the notes and mortgage. The court said that, "where it may be clearly and satisfactorily shown that the title of the grantor has failed, it is unjust to deny to the mortgagor the right to plead want of consideration because of the failure of the title, and compel him to rely upon the covenants of warranty in the deed, in a separate action brought to recover thereon; for such rule requires two actions to settle what ought to be settled in one, and necessitates legal steps to satisfy separate judgments." And in Bennett v. Pierce (1898) 45 W. Va. 654, 31 S. E. 972, where, although seventeen years had elapsed since the improper execution of the deeds by the wives of the grantors, it was nevertheless held that the grantee could not be required to pay the balance of the purchase money. And it has been held that where, due to a defective certificate of acknowledgment to a deed, the contingent dower right of the grantor's wife is not released, the grantee may retain a sufficient amount of the purchase price to indemnify him against the possible assertion of this contingent title. Thorn v. Sprouse (1894) 39 W. Va. 706, 20 S. E. 676. The court said that until the grantor tendered a good and sufficient deed, which should be joined in by his wife, and properly acknowledged, so as to release her claim to continued or prospective dower, neither said grantor or his assigns, nor his assignee of a note given for the purchase money, had any right to subject the land to sale for the payment of the same.

IV. Breach of covenant as ground of defense to proceedings to enforce payment of the purchase price.

In many jurisdictions, a grantee in possession of land under a deed containing general covenants of title is denied the right to defend an action by his grantor to recover the whole or a portion of the purchase price, on the ground of the existence of an outstanding adverse title to or encumbrance against the land.

United States.-Patton v. Taylor (1849) 7 How. 132, 12 L. ed. 637; Wanzer v. Truly (1855) 17 How. 584, 15 L. ed. 216; Refeld v. Woodfolk (1859) 22 How. 318, 16 L. ed. 370; Noonan v. Lee (Noonan v. Braley) (1863) 2 Black, 499, 17 L. ed. 278; Peters v. Bowman (1878) 98 U. S. 56, 25 L. ed. 91; White v. Ewing (1895) 16 C. C. A. 296, 37 U. S. App. 365, 69 Fed. 451; Jourolmon v. Ewing (1897) 26 C. C. A. 23, 47 U. S. App. 679, 80 Fed. 610; Briscoe v. Minah Consol. Min. Co. (1897; C. C.) 82 Fed. 952; Taggart v. Stanbery (1841) 2 McLean, 543, Fed. Cas. No. 13,724; Prevost v. Gratz (1818) 3 Wash. C. C. 434, Fed. Cas. No. 11,407.

Alabama.-Wilson v. Jordan (1832) 3 Stew. & P. 92; Bliss v. Smith (1840) 1 Ala. 273; Cullum v. Bank of Alabama (1842) 4 Ala. 21, 37 Am. Dec. 725; Starke v. Hill (1844) 6 Ala. 785; Knight v. Turner (1847) 11 Ala. 636; Patton v. England (1848) 15 Ala. 69; McLemore v. Mabson (1852) 20 Ala. 139; Magee v. McMillan (1857) 30 Ala. 420; Hughes v. Hatchett (1876) 55 Ala. 539; Strong V. Waddell (1876) 56 Ala. 471; Munford V. Pearce (1881) 70 Ala. 452; Franke v. Riggs (1890) 93 Ala. 252, 9 So. 359; Heflin v. Phillips (1892) 96 Ala. 561, 11 So. 729; Buford v. Ward (1895) 108 Ala. 307, 19 So. 357; Coleman v. First Nat. Bank (1896) 115 Ala. 307, 22 So. 84; Vice v. Littlejohn (1896) 116 Ala. 276, 22 So. 488; Gillham v. Walker (1902) 135 Ala. 459, 33 So. 537.

Arkansas.-Peay v. Wright (1860) 22 Ark. 198; Busby v. Treadwell (1866) 24 Ark. 456; Bramble v. Beidler (1881) 38 Ark. 200; Torris v. Ham (1886) 47 Ark. 293, 1 S. W. 519;

Heard v. Knights of Honor (1892) 56 Ark. 263, 19 S. W. 671; Tillar v. Clayton (1905) 76 Ark. 405, 88 S. W. 972.

California.

Norton v. Jackson (1855) 5 Cal. 262; Walker v. Sedgwick (1857) 8 Cal. 398; Sparks v. Hess (1860) 15 Cal. 186.

Florida.-Long v. Allen (1849) 2 Fla. 403, 50 Am. Dec. 281; Randall v. Bourguardez (1887) 23 Fla. 264, 11 Am. St. Rep. 379, 2 So. 310; Mickler v. Reddick (1896) 38 Fla. 341, 21 So. 286.

Georgia.-McGehee v. Jones (1851) 10 Ga. 127; Smith v. Hudson (1872) 45 Ga. 208; Sanderlin v. Willis (1894) 94 Ga. 171, 21 S. E. 291.

Illinois. Willets v. Burgess (1864) 34 Ill. 496; Vining v. Leeman (1867) 45 Ill. 246; Whitlock v. Denlinger (1871) 59 Ill. 96; Buckles v. Northern Bank (1872) 63 Ill. 268; Laforge v. Mathews (1873) 68 Ill. 328; Harding v. Commercial Loan Co. (1876) 84 Ill. 251; McDaniel v. Bryan (1881) 8 Ill. App. 273; Barry v. Guild (1888) 28 Ill. App. 39. Indiana. Oldfield v. Stevenson (1848) 1 Ind. 153; Clark v. Snelling (1849) 1 Ind. 382; Hanna v. Shields (1870) 34 Ind. 84; Black v. Coan (1874) 48 Ind. 385; Mahoney v. Robbins (1874) 49 Ind. 146; Jones v. Noe (1880) 71 Ind. 368; Stelzer v. La Rose (1881) 79 Ind. 435; Beal v. Beal (1881) 79 Ind. 280; Wimberg V. Schwegeman (1884) 97 Ind. 528; Black v. Thompson (1894) 136 Ind. 611, 36 N. E. 643; Pomeroy v. Burnett (1846) 8 Blackf. 142; Johnson Bedwell (1895) 15 Ind. App. 236, 43 N. E. 246; Mauzy v. Flint (1908) 42 Ind. App. 386, 83 N. E. 757.

V.

Iowa.-Brandt v. Foster (1857) 5 Iowa, 287.

Kentucky. Simpson v. Hawkins (1833) 1 Dana, 305; Perciful v. Hurd (1831) 5 J. J. Marsh. 670; Trumbo v. Lockridge (1868) 4 Bush, 415; Hall v. Priest (1869) 6 Bush, 12; Hieronymus v. Hicks (1830) 3 J. J. Marsh. 701; Upshaw v. Debow (1870) 7 Bush, 442; Smith v. Jones (1895) 97 Ky. 670, 31 S. W. 475; Atkinson v. Hager (1909) Ky. 121 S. W. 955; Burks v. Burks (1890) 12 Ky. L. Rep. 552, 14

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37 Mich. 148. Minnesota.

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Brown v. Manning (1859) 3 Minn. 35, Gil. 13, 74 Am. Dec. 736. Mississippi. Hoy v. Taliaferro (1847) 8 Smedes & M. 727; Duncan v. Lane (1847) 8 Smedes & M. 744; Heath v. Newman (1848) 11 Smedes & M. 201; Johnson v. Jones (1850) 13 Smedes & M. 580; Glasscock v. Robinson (1849) 13 Smedes & M. 85; Winstead v. Davis (1866) 40 Miss. 786; Guice v. Sellers (1870) 43 Miss. 52, 5 Am. Rep. 476; Miller v. Lamar (1870) 43 Miss. 383; Glenn v. Thistle (1851) 23 Miss. 42; Miller v. Owens (1826) Walk. 244.

Missouri.-Connor v. Eddy (1857) 25 Mo. 72; Wheeler v. Standley (1872) 50 Mo. 509; Mitchell v. McMullen (1875) 59 Mo. 252; Key v. Jennings (1877) 66 Mo. 356; Cartwright v. Culver (1881) 74 Mo. 179; Hunt v. Marsh (1883) 80 Mo. 396.

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New York. (1849) 3 Sandf. 118; Seidman v. Geib (1890) 16 Daly, 434, 11 N. Y. Supp. 705; Lattin v. Vail (1837) 17 Wend. 188; Whitney v. Lewis (1839) 21 Wend. 131; Tallmadge v. Wallis (1840) 25 Wend. 107; Edwards v. Bodine (1841) 26 Wend. 109; Gouverneur v. Elmendorf (1820) 5 Johns. Ch. 79; Withers v. Morrell (1842), 3 Edw. Ch. 560; Leggett v. McCarty (1837) 3 Edw. Ch. 124; Farnham v. Hotchkiss (1865) 2 Keyes, 15; Kirtz v. Peck (1889) 113 N. Y. 222, 21 N. E. 130; York v. Allen (1864) 30 N. Y. 104; Parkinson v. Sherman (1878) 74 N. Y. 88, 30 Am. Rep. 268; Ryerson v. Willis (1880) 81 N. Y. 277; Lamerson v. Marvin (1850) 8 Barb. 9; Curtiss v. Bush (1863) 39 Barb. 664; Miller v. Avery (1848) 2 Barb. Ch. 582; Shire v. Plimpton (1900) 50 App. Div. 117, 63 N. Y. Supp. 568.

Ohio.-Hill v. Butler (1856) 6 Ohio St. 207; Picket v. Picket (1856) 6 Ohio St. 525.

South Carolina.-Van Lew v. Parr (1846) 19 S. C. Eq. (2 Rich.) 337; Baum v. Raley (1898) 53 S. C. 32, 30 S. E. 713; Nathans v. Steinmeyer (1900) 57 S. C. 386, 35 S. E. 733.

South Dakota. O Price v. Hubbard (1895) 8 S. D. 92, 65 N. W. 436; Zerfing v. Seelig (1899) 12 S. D. 25, 80 N. W. 140, affirmed on rehearing in (1901) 14 S. D. 303, 85 N. W. 585.

Tennessee.-Clark v. Carlton (1880) 4 Lea, 452; Leird v. Abernathy (1873) 10 Heisk. 626; Barnett v. Clark (1858) 5 Sneed, 435; Senter v. Hill (1857) 5 Sneed, 505; Young v. Butler (1858) 1 Head, 639; Hurley v. Coleman (1859) 3 Head, 265; Egan v. Yeaman (1897) Tenn. 46 S. W. 1012; Williams v. Sax (1897) Tenn. 43 S. W. 868; Jones v. Fulghum (1876) 3 Tenn. Ch. 193; Simmons v. Bailey (1900) 105 Tenn. 152, 58 S. W. 277.

Texas. Ogburn v. Whitlow (1891) 80 Tex. 239; Warren v. Clark (1894) Tex. Civ. App. -, 24 S. W. 1105; Knight v. Coleman County (1899) Tex. Civ. App. 51 S. W. 258; Price v. Blount (1874) 41 Tex. 472. Broocks v. Lee (1907) 46 Tex. Civ. App. 372, 102 S. W. 777.

See

Vermont.

Dix v. School Dist. (1850) 22 Vt. 309.

Virginia. See Long v. Israel (1838) 9 Leigh, 556.

Washington. - Spinning v. Drake (1892) 4 Wash. 285, 30 Pac. 82, 31 Pac. 319.

West Virginia.-Jackson v. Welsh Land Asso. (1902) 51 W. Va. 482, 41 S. E. 920; Bennett v. Pierce (1898) 45 W. Va. 654, 31 S. E. 972.

Wisconsin. Horton v. Arnold (1864) 18 Wis. 213; Ludlow v. Gilman (1864) 18 Wis. 552; Mecklem v. Blake (1868) 22 Wis. 495, 99 Am. Dec. 68; Smith v. Hughes (1880) 50 Wis. 620, 7 N. W. 653; Clementson v. Streeter (1884) 59 Wis. 429, 18 N. W. 340; Bardeen v. Markstrum (1885) 64 Wis. 613, 25 N. W. 565.

Canada. Shaw v. Ross (1858) 17 U. C. Q. B. 257.

A mere partial failure of consideration of a note arising from a breach of the covenants of warranty in a conveyance of land will not constitute a defense to an action upon such note. Chase v. Weston (1841) 12 N. H. 413. Without passing upon the point as to whether or not a total failure of consideration may be treated as a defense to an action on a purchaseprice note given for land where the grantee has gone into possession under a deed with warranties of title, it is held in Greenleaf v. Cook (1817) 2 Wheat. (U. S.) 13, 4 L. ed. 172, that such a defense cannot be made where there is only a partial failure of consideration.

In Joiner v. Trail (1905) 27 Ky. L. Rep. 844, 86 S. W. 980, in holding that, where the title to land was defective because of an outstanding title to a portion of the mineral rights, this fact could not be taken advantage of as a defense, in whole or in part, to an action on purchase-price notes, the court distinguished between the right of the grantee in such a case, and his right where there is a deficiency. In the latter case it is said: "A vendee of land, where there is a deficit, may offset the value of the deficit against the notes when sued for the price, or recover therefor in an independent action, where he has paid the price.

But in those cases there can be no eviction, and there could be no recovery at all if the rule were otherwise than as stated. In those cases the vendee has all that he bought, but it turns out that a mistake was made by the parties as to the quantity of land contained in the boundary. The rule there announced is only an application of the more general rule allowing a recovery of money paid under mistake."

A covenant to convey a good title constitutes a valuable consideration for a note given for the purchase price of real estate, and a defective title, or a lack of title, does not constitute a defense to an action on the note. Long v. Allen (1849) 2 Fla. 403, 50 Am. Dec. 281.

Covenants of warranty or for quiet enjoyment are said to be substantially and conclusively prospective, and, in the absence of fraud or anything to overcome the presumption that the vendor of real property is able to respond in damages, the purchaser in possession under a deed with covenants of warranty, who has neither been evicted nor disturbed in his possession or quiet enjoyment, cannot, by showing a mere defect in the title, defend an action to recover the balance due on the purchase price. Price v. Hubbard (1895) 8 S. D. 92, 65 N. W. 436. It is said in Tallmadge v. Wallis (1840) 25 Wend. (N. Y.) 104: "The question whether a total failure of title, upon a conveyance with warranty, is a good defense to a suit upon the notes given for the purchase money, is one upon which judges have entertained different opinions. Where there is a covenant of warranty merely, which covenant is not broken until there has been an eviction, or something equivalent to an eviction, there appears to be great difficulty in permitting the purchaser to show a total or a partial failure of title, either in bar of the suit or to reduce the amount of the recovery. It is a wellknown fact that land is frequently conveyed with general warranty, which is warranty against eviction only, when both parties to the sale perfectly understand that the title is

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