#### *Shiflett &c. v. The Orange Humane Society.

January Term, 1851,

Richmond.

(Absent Cabell, P„ and Brooke, J.)

Action on Bond—Plea of Failure of Consideration— When Inadmissible under Statute of Equitable Defences.*—In an action on a bond given for the purchase money of land, tbe act of 1831 does not authorize a plea of failure of consideration upon equitable grounds which would require a rescission of the contract out of which the bond originated, and a reinvestment of the obligee with the interest in the land alleged to have been sold to the obligor.

This was an action of debt brought in 1845 in the Circuit court of Albemarle county, by the Orange Humane Society, a chartered institution, against Isaac Shiflett and George Martin, upon a bond executed by the latter to the former on the 29th of March 1839, in the penalty of 2077 dollars 18 cents, with condition to pay the sum of 1038 dollars 89 cents.

The defendants appeared and pleaded payment, on which issue was joined. They also offered a special plea under the act of 1831. This plea was very informal, but in substance it stated, That in 1787 one Monroe of the county of Orange bequeathed his estate, real and personal, for the purpose of educating poor children. That William Bell, his executor, sold the estate, and that Richard Bruce, of Albemarle county, purchased to the amount of somewhat upwards of ^100. Virginia currency. That in 1789 Bruce executed a deed of trust to secure this sum upon two tracts of land, one of three hundred, and the other of two hundred, acres. That the tract of three hundred acres was sold under this deed for £50., and purchased by Watson, who paid the amount, principal and interest, to *Bell prior to 1797; and he and those claiming under him, had ever since held the land. That one moiety of the two hundred acre tract was held by Nelson Barksdale by a prior and better title; and of the remainder the defendant Shiflett was in possession of fifty acres as one of the heirs at law of Bruce. And that Bruce had before his death satisfied the trust in full as to this tract of two hundred acres.

They further stated that the Orange Humane Society had succeeded to the rights and liabilities of William Bell as executor of Monroe. That in 1839 this society advertised that they would close the deed of 1789 (Bruce’s deed of trust), by a sale at Orange courthouse on the 25th of March 1839. That the defendant Shiflett attended-the sale with the sole view of saving his land; and was induced by the opinions and representations of the president and directors of the society to bind himself to pay off their claim under the old trust. That at the sale on the 25th of March 1839, the two tracts of land were sold, and were purchased by the defendant Shiflett, for the sum of 1038 dollars 58 cents; being the amount of the principal and interest due under the deed of 1789, without any credits whatever, for which he had executed his bond with the defendant Martin as his *119surety. That the defendant Shifiett had then no conception of the true nature of the case: and that the defendants were totally and wholly deceived by the said Orange Humane Society, and especially by Reynolds Chapman and James Barbour, members thereof, in whom the defendants had the most implicit confidence; and who must have been themselves deceived as to the nature of the claim. And that defendants believe that it was known to some of the members of said society when the sale was made, that a large portion or the whole of the debt had been paid. They therefore say that there has been a total failure of the consideration of the said writing obligatory, &c.

*The Court rejected the plea and the defendants excepted: And they then withdrew the plea of payment, and there was a judgment for the plaintiff. Whereupon the defendants applied to this Court for a supersedeas, which was awarded.

Stanard and Bouldin, for the appellants.

Patton, for the appellee.

*

The proposition laid down in tbe principal case is reaffirmed in Mangus v. McClelland, 93 Va. 789, 22 S. E. Rep. 364. See also, the principal case cited in Watkins v. Hopkins, 13 Gratt. 745, and foot-note, and distinguished in Strickland v. Graybill, 97 Va. 604, 34 S. E. Rep. 475. See also, 1 Va. Law Reg. 543, 544.

AIyHEJN, J.,

delivered the opinion of the Court.

The Court is of opinion, that if the plaintiff in error was entitled to any relief on account of the matters averred in his plea, such relief could only be afforded in a Court of equity, where upon a rescission of the contract the defendant in error could be reinvested with the interest alleged to have been sold to the plaintiff in error: It was, therefore, not competent to set up such matter in defence to the action at law brought to recover the purchase money agreed to be paid on such a contract touching the realty, by a plea under the statute in the nature of a plea of set-off; and the rejection of the plea does not preclude the party from applying to a Court of equity for such relief as he may shew himself entitled to on account of the matters alleged in the plea. It therefore seems to the Court here, that there is no error in the judgment of the Circuit court rejecting the plea. It is therefore considered that the same be affirmed, with costs.