#### Winter *against*Livingston.

A-executesicerr tain prcupissory ^orares6/aodd, tíeKc«eíwírhe?B5 Seyedto-R.’uSftenuhat' b^qh ííeBoaeTMsehouíd re.conv’ey the laud; the notes and b|rshaPvaing oi ownership on the land,by sell-not support an action on ,the-notes, there be-Consideration-°£ and the agreement being void meDte.ofn"pthe ferfedsotoxonl exeTeisiug'Cc'il faMelSii'd jadaroSpiSi!

THIS was an action, of *assumpsit*on three promissory notes, ‘ *■ i j. ?*ma¿e by the defendant in- favour of the plaintiff, dated *Jzme*1st,. 1803,. one ¿payable 11 months .after date for 10,000 dollars, one payable 23 months after.-date for 5,000 dollars, and the other 3-5 months after date for 7,549 dollars-and 7 cents. The cause was tried .-at'the, *New-York*sittings, in *April,*1815, before Mr. J. *rr*-ar -' > ' - ‘ ’ ’ *VCLKl JMieSS,*' • , * :

The due execution of the notes haying been admitted, the defendant produced,, in. evidence,' a. certain instrument executed ‘ , . ... . '. . .... ' ' plamtifi, whichwas-as iollows ;.,

« Know all men by these presents,-that I; *Joseph*Winter, of % /. *■ *\*- ' y- 7 • ** ■■■ 3*• && city of *New-York,*Esq., for myself,v&e;,. do. covenant and agre¿ to, and'with *EdwardLivingston,*of the same place, esquire, that, provided he,, the-said Edward *Livingston,*shall Veil and truly pay to me, &c„ tiie full amount of three several promissory notes, (describing them, being the-notes, above .mentioned,j)that then, and in such ease, and. not otherwise, :J will convey to the said Edward,Livingston,-and his heirs, in fee,simple, átractqf land-'this day.conveyed to me by *Thomas Mdule,*of the.city .of *Mew- York,,*being the -residue of a tract of land granted to, him by patent, dated, &c., after deducting 20,078 acres, conveyed, &c., which residue is said to contain 25,000 acres; but it is hereby expressly declared to be-the- intent of the parties hereto, that if ‘the spid several notes,- or either of them, shall not be paid at the several times when they, or either of them, ought to be paid,', that then this . covenant shall be void and -of no effect, And it is also agreed,: that all such sums of money as shall be received for sales, of the said lands by settlers, by an agent to be appointed, jointly, -by *Joseph Winter, Edward Livingston,*and *Thomas*Áíaiifej the land is mortgaged, by J. *Winter,)**55shall be credited on *Winter’s*bonds and mortgage tó *Maulé,*and on *Edward Livingston’s*notes above recited. The lands, on the payment of the notes, to be conveyed free from incu.mbrance created by *Joseph Winter,*or any one claiming under him. In witness,” &c. Signed/. *Winter,*and dated the 11th of *July,*1803.

It appeared that *Livingston,*the defendant, being indebted to *Maulé*in a large sum of money, and *Maulé*holding, for the defendant’s use, a tract of land on lake Champlain, (to which land the defendant was entitled, but the patent had been taken out in *Maúle’s*name,) it was agreed between the defendant and plaintiff, that the plaintiff should become responsible to *Maulé*for the defendant’s debt, on his receiving a conveyance from *Maulé of*the said tract, but that the defendant should have a reconveyance, on his paying to the plaintiff the sum of 3,125 dollars over and above the sum due to Maúle. The agreement, being the one above stated, was reduced to writing, and *Winter*gave his obligations to *Maulé*for the sum so due, with interest, payable in six, twelve, twenty-four, and thirty-six months, and the defendant executed, and delivered to the plaintiff, the notes on which the action was brought, which fell due, except the first, each one month prior to the time fixed for the payment of the several sums to *Maulé.*On the 11th of *August,*1803, the plaintiff and defendant appointed *George Lyon*their joint agent, to contract for the sale of the land, who removed to, and resided upon or near the land, until 1807. The contracts with the settlers were made in the joint names of *Winder*and Livingston. In *October,*1804, the plaintiff himself went on the land, and, whilst there, cancelled the contracts made by the agent in the joint names of *Winter*and *Livingston,*and gave deeds and tools mortgages for the land conveyed, in his own name, and from that time held himself out, and acted as the sole proprietor of the land, and oil the 13th of *March, 1807,*conveyed large portions of the tract to two different persons, and assigned them thé bonds and mortgages which had been taken on the sale of parcels of the land included in their deeds. The judge thinking that the consideration for the notes had failed, the plaintiff was nonsuited, and it was now moved to set aside the nonsuit.

.D. *B. Ogden,*for the plaintiff.

*56*Hoffman,*and *Anthon,*contra.

*Per Curiam.*

"The motion for A new trial Brast be denied* The facts in the case' clearly show, that no consideration has been paid for the notes. Without going into a minute detail of these facts, they will, On examination, be found satisfactorily to show, that the defendant being indebted to *Thomas Maulé*in a large sum of money, a patent for land,, to which the defendant was entitled,, was taken out in *MauWs*name ; that by a subsequent arrangement between the parties, these lands were conveyed by *Maulé*to' *Winter,*on his becoming security for the debt which the defendant owed tó *Maúle*; and the notes in question were given as the consideration for the reconveyance of the land by *Winter to Livihgsion,*according to the covenant entered into between them. By this covenant, however, it was provided, that the' agreement was to be void, unless *Livingston*paid his notes as they, fell due. He did not pay them-; and,, of course,, the agree-*meat*was void, if *Winter*elected so to'consider it,-. And the casé fully shows, that, he availed himself of this forfeiture, for he went on and sold the land for his exclusive, benefit, and *Livingston*has, therefore, received nothing for his notes ; and *Winter*has a complete and perfect title to the lauds.

Motion denied*