#### Samuel Sanger, and Sarah, his Wife, *versus*Bela Cleveland.

A, being possessed of land, as tenant in common, releases her right to B, her co-tenant, who, at her request, conveys the same, with warranty, to C, who, in consideration thereof, gives Á his promissory note for the value of the land; B afterwards dies insolvent, and C' was obliged to pay a sum of money, to discharge an encumbrance on the land, existing before B’s conveyance to him and he claimed to have the sum so paid by him deducted from his note; but ha was adjudged to pay the whole amount due on the note.

Assumpsit on a promissory note made by the defendant to the said *Sarah,*dated August 24, 1809, for 343 dollars 75 cents, payable, with interest, on the 1st of April, 1812.

The cause was tried before *Parker,*J., at the sittings here afte *412the last October term, and a verdict taken for the plaintiffs for 206 dollars 46 cents, subiect to an agreement, on the part of the defendant, that the verdict might be altered by the Court, as their opinion should be upon the following facts: —

The defendant admits the signature of the note, but alleges, as to 200 dollars, part of the sum therein mentioned, with the interest of it from the 31st of July, .1812, it is without adequate consideration ; because one *Seth Clark,*deceased, was seised of certain lands, and died so seised, leaving *Ebenezer Clark*and the said *Sarah Sanger,*children of the said *Seth,*and one *Tisdale,*a grandchild of said *Seth,*his heirs. On the 2d of June, 1807, for settling the estate of *Seth,*it being then supposed that there would be personal estate sufficient for the payment of his debts, the said *Ebenezer*executed a bond to the said *Sarah,*in the penal sum of 1000 dollars, conditioned that he, the said *Ebenezer,*who was administrator of his said father’s estate, should pay all the debts and mortgages due from the deceased, out of the personal estate; [*416] and if that * should prove insufficient, should pay the residue out of the obligor’s own estate, and should also procure a decree of the judge of probate for the county of *Norfolk,*assigning to the said *Sarah,*the obligee, and her heirs, all the real estate of which the said *Seth*died seised, which was described in the inventory in the probate office. On the day of the date of the note declared on, instead of causing said real estate to be settled on the said *Sarah,*according to the condition of the said bond, the said *Sarah,*with her husband, the present plaintiff, and the said *Tisdale,*made and executed a deed of quitclaim of all their right and title to the- said real estate to the said *Ebenezer,*who, at the request of the said *Sarah,*conveyed the same to the present defendant, with covenants of warranty. The defendant, in consideration thereof, made the note declared on, and also another note for 500 dollars, which has been since paid. Thereupon the said *Sarah’s*agent, by a memorandum on the back of the above-mentioned bond, acknowledged the said deed of the said *Ebenezer*to the defendant to be equivalent- to the procuring a decree of the judge of probate, &c., assigning and settling her father’s real estate upon her. Afterwards the said *Ebenezer*died insolvent, and one *Amos Woodward*was appointed administrator *de bonis non*of the said *Seth;*and a certain demand having been unexpectedly recovered against him in his said capacity, he represented the estate of the said *Seth*insolvent, and obtained a license from the Circuit Court of Common Pleas holden at *Dedham*in April, 1812, authorizing him to sell the whole of the real estate of said *Seth,*for the *413payment of his debts; pursuant to which license, the said *Woodward*sold and conveyed the said real estate to the defendant, for the sum of 200 dollars.

*Bigelow,*for the plaintiff,

cited 2 *Vent.*267.—1 D. Sf *E.*732.. *Shove*vs. *Rep.*14, vs.

*Hastings*for the defendant.

The cause was continued *nisi*for advisement, and at the follow mg March term in *Suffolk,*

* Sewall, J.,

pronounced the judgment of the Court. [ *417 ] The defence set up in this action, upon a promissory note given by the defendant to *Sarah Sanger,*one of the plaintiffs, is a want of consideration, or rather a failure in part of the consideration of the note; which the defendant contends is to be reduced, as to the damages recoverable in the action maintained upon it, to the sum actually due and understood in the bargain between these parties. The defendant says this was a purchase of real estate, conveyed to him by the brother of the payee, one of the plaintiffs in this action, at her request; and as the title so conveyed has failed in part, has been subjected to a charge and encumbrance, which he has been constrained to discharge, there is to be a proportionate deduction from the damages recoverable on the breach of the promise expressed in this note.'

We are disposed to allow the inference, if the premises are correctly stated, and proved or provable by the evidence in the case. But we think, upon full consideration of the question, that the defendant resorts, for his defence, to a supposed consideration of this note, not understood or contemplated by the parties, when the contract was made, in which the note originated; or, at least, that the defendant has no competent evidence of any stipulation or contract, on the part of Mrs. *Sanger,*which can now avail the defendant to maintain this defence.

Mrs. *S.,*one of the plaintiffs, had in her possession the bond of her brother, in the penalty of a thousand dollars, given upon the condition that he would pay all the debts of their father, and would convey to her the portion of the estate of her father, which has been since conveyed to the defendant. It was to be conveyed to her free of all encumbrances and demands. Mrs. *Sanger’s*title in the estate to be released and assured to her did not depend altogether upon this bond. In part, at least, it was derived to her from her father; and the bond was to be regarded as having the effect of a partition among his heirs at law, and also as an * indemnity against his debts. The contract between [*418] the administrator, the obligor in the bond, and the heir, was absolute. The real estate, to be assigned to her according te *414the condition of the bond, was to be acquitted and fully indemnified, by the charge and care of the administrator, against the debts of the father; and it was not to be subject, as in ordinary cases of partition, to any claims of reimbursement or contribution for debts afterwards appearing; so far, at least, as the administrator was concerned ; for he had by this bond barred himself, and had undertaken to indemnify against all claims of that kind.

Nowt, there is no competent evidence suggested, on the part of the defendant, to prove that, in his favor, and upon the bargain of this estate to him, Mrs. *Sanger*parted with her security against her brother, and took upon herself the risk of debts, which might thereafter appear against the father’s estate, and against which she had a full indemnity. The only regular or competent evidence to that effect would have been her becoming a party to the deed by which the estate was conveyed to the defendant, or in some collateral assurance of his title. An acknowledgment of payment from the defendant, and a request to the obligor to convey to the defendant the estate contracted to be assigned to Mrs. *S.,*supposing there is evidence to that effect, are circumstances by no means sufficient to induce the conclusion, in point of fact, for which the defendant contends, *viz.,*that Mrs. *S.*became, therefore, collaterally engaged for the assurance of the defendant’s title. For this he relied upon his deed from *Ebenezer Clark;*which was obtained, indeed, with her concurrence, as having the beneficial title bargained to her by the same *Ebenezer.*But the conveyance was not made with any collateral assurance of the title on her part. There is no competent evidence suggested in the case, to a purpose of that kind ; which would be a contract respecting a title in real estate, or for the debt of another, for which there must be written evidence. [ * 419 ] *Upon the whole, it is our opinion that the plaintiffs are entitled to the whole sum due by the note, without any deduction; and the verdict is to be so amended, and judgment to be entered thereon accordingly. *(a)*

ADDITIONAL NOTE.

[Where a note is given for the price of land, conveyed with warranty, it is a good defence tc an action on the note by the payee, that the title has wholly failed.— *Rice*vs. *Goddard,*14 *Pick.*293. — So also, if the action is brought by one who took an assignment of the note, after maturity, though the promisor before failure of his title agreed to pay the note. — *Ibid.*— *Washburn*vs. *Picot,*3 *Dev.*390. — *Hansford*vs. *Mills,*9 *Port.*509.

See *Trask*vs. *Vinson,*20 *Pick.*105. — *Dyer*vs. *Homer,*22 *Pick.*253. — *Middlesex, &c.,*vs. *Davis,*3 *Metc.*133. — *Stevens*vs. *M'Intire,*2 *Shepl.*14. — *Freligh*vs. Platt, 5 *Cow.*494. — *Lattin*vs. *Vail,*17 *Wend.*188. — *Pinney*vs. *Hall,*1 *Hill,*(N. Y.) 89.— *Payne*vs. *Ladue,*1 *Hill,*116. — *Decker*vs *Eisenhauer,*1 *Penns.*476. — *Barnet*vs *415*Offerman, 7 Watts,*130. — *Vincent*vs. *Morrison.,*1 *Brc.*176. — *Meadows*vs. Hopkins, 1 *Meigs,*181. — *Morehead*vs. *Gayle,*2 Stew. P. 224.

A took from B a note, the only consideration of which was a promise by the former to convey to the latter, on payment of the note, certain land, if A should own it; if not, to buy it as cheap as he could, and let B have it at cost. Before maturity of the note, A died insolvent, having no title. Held, the note was void, for failure of consideration.— *Tillotson*vs. *Grafes,*4 N. *H.*444.— *Cook*vs. *Mix,*11 *Conn.*432.

The maker of a note may set up failure of consideration against a purchaser of it, without proving any more notice, than that the circumstances attending the transfer should have put him on his guard.— *Cove*vs. *Baldwin,*12 *Pick.*545.

To a suit by a *bond fide*endorsee against the maker, it is no defence, that the .face of the note shows it to have been given for a patent which has proved valueless. — *Goddard*vs. *Lyman,*14 *Pick.*268. — But an endorsement “ at the risk and cost of the endorsee,” does not authorize the jury to infer that he knew or suspected the w >rth lessness of the patent. — *Ibid.*— F. H.]

(a)

**[Vide *Knapp*vs. *Lee,*3 *Pick.*452. — *Bliss*vs. *Negus,*8 *Mass. Rep.*46. — Ed.]