Richard H. Long, Plaintiff in Error, vs. Benjamin F. Allen, use, &c., Defendant in Error, 2 Fla. 403

Opinion by Justice Baltzell : This is a suit on a promissory note, payable at the Union Bank of Florida, given for the purchase of a tract of land, and the defence is a failure of consideration, based upon an equitable right in a third person. The case was tried upon the evidence, without reference to the pleadings, the court instructing the jury as to the points presented. The propriety of these instructions is now raised in this court.

The error assigned presents the main question in the case — that under the proof defendant was entitled to a verdict, on the ground that the title to the land purchased was not in the Asylum, but in Williamson, assignee of Kilbee. Strictly speaking, the instruction might have been refused, on the ground that the title was not as asserted, but in the Asylum obviously, through the patent of the United States, which they held and tendered in evidence. The more appropriate question is, whether through the equity existing in Williamson, the defendant could maintain his plea of a failure on that account.

To solve this question, we must refer to the bond taken by defendant, on executing his note.

This formed the consideration for it, and to the extent of the covenant contained in it, plaihtiff is bound, and no further — it not being pretended that there was fraud in any respect.— The covenant there is to make “good and sufficient legal conveyance, upon the payment and full discharge of the said promissory note.” We do not consider it necessary, on the present occasion, to determine the relative effect of these agreements, whether they are dependent or independent — the point has not been argued before us, and the case may be decided upon other grounds, admitting, in our opinion, of neither doubt nor question.

In argument, and on the trial in the Circuit Court, the case was treated as if there had been a covenant for good and sufficient title— a covenant in the opinion of at least two of the most enlightened courts in the Union, of very different import from that of a sufficient deed or conveyance. The words, “ good and sufficient deed,” have no reference to the title; “ it is a covenant relating merely to the validity and sufficiency of the conveyance 'in point of law to pass whatever right the plaintiff had in the lands to the defendant.” “ It is impossible,” says C. J.

Spencer, in a case reviewing the decisions in New York in this respect, “to torture the covenant to give a good warrantee deed of conveyance to mean that he will give a good title.” 20 John., p. 132. 12 John., 436. 13 John., 350. 16 John., 268. 6 Cowen, 21-2. 15 Pickering, 553. Even this question seems to be unsettled in the American Courts, the Supreme Court of Pennsylvania holding the adverse doctrine ; nor do we design to express a definite opinion on the present occasion.

In the case under consideration, we find the plaintiff in possession of the patent of the United States, granted in July, 1829, nearly twenty years since, and during that long period it has not been assailed. The defence set up under Williamson is, in the pleadings, alleged to be a claim — not even a subsisting, or a good and valid one. At the best, it is a- mere equity — dormant from its existence in 1827, and never asserted in court or elsewhere, as appears from the record, to the present time.

It has not disturbed the defendant’s possession obtained under the purchase from the Asylum and which he has held for several years, nor is there an allegation that there is any fear of its disturbance, or that there is a design to assert the claim to his injury. Admitting that Williamson might, in a court of equity, have obtained his right over the patent and compelled a conveyance of the land, yet it by no means follows that the defence would be available to defendant here. But in addition to all this, by the plea in the case, this very claim of Williamson was known to defendant at the time of his purchase.

Under such circumstances, to hold the defence available, would be going far beyond the decisions of any of the courts that have permitted objections of this character. The cases on the subject in the American Courts are based on the ground of fraud or eviction, or that which is equivalent, or of admitted or unquestionable paramount title. The general rule at common law, and that now prevailing, is that the bond or covenant cpnstitutes a good and valuable consideration for the note, and, of course, a want or failure of title would be no defence to an action on the note. 1 Greenleaf, p. 352. 2 Wheat, p. 13.

If there be no ingredient of fraud in the case, and the party has not had the precaution to secure himself by covenants, he has no remedy for Ms money, even on a failure of title. 2 Kent, 473. The case of Frisbee v. Hoffnagle, cited by defendant’s counsel, 11th Johnson, p. 50, asserting a different rule, has been overruled — not only by the same court, 19 Johns., 77—21 Wend., 132, 134—25th Wend., 107, reviewing the entire ground, but by other courts — 3 Pickering, 452. 3 Martin’s La. Rep., 111. 8 Smede & Marshall, 742.

In this latter case, the court say: “ A court of law, although the proper tribunal for the trial of titles to land, will not try such titles collaterally. The proceeding must be direct, otherwise the title cannot be questioned. Where there has been an eviction, the de-fence of failure of consideration maybe let in, because the superiority of the outstanding title is then established by a judicial determination.” Hay, &c. v. Taliaferro, Mississippi Reports.

In South Carolina, where defences of this character have prevailed to the greatest extent, the courts have evinced a disposition to retrace their steps, and admit that some of their decisions have led to extravagant results. Thus in Yan Leer vs. Parr, upon the question whether Van Leer had or had not a good title to the lands against the contingent remainder men, dec., “I give no opinion,” says one of the judges, “and the court ought still to avoid deciding upon the possible future rights of such absentees. Let them first lay in their claims.

The series of our decisions has finally established this proposition in the laws of South Carolina, that, whenever in the sale of lands, the seller makes a general warranty of title, and a subsisting paramount title at law to the same lands belongs to a third persea, as for instance an older grantee of the same lands, in such cases the purchaser is not obliged to wait for eviction, &c.” 2 Richardson Equity, 324.

We are of opinion that this objection may not be set up at law in this action, so as to set aside this agreement, being more appropriate to a court of equity, where, if necessary or proper, the contract may be rescinded or modified upon such terms as the peculiar circumstances of the case may demand, and where Williamson, or those holding under him may be made parties, and the merits of his claim directly investigated. An embarrassment has existed in our minds as to the proper disposition of the case, owing to the very defective character of the pleadings.

The defendant sets up an arrangement to extinguish Williamson’s claim, and avers that the Asylum has no title; plaintiff replies that he is now and will be ready to make title whenever defendant is ready to offer to pay the purchase money, and this last ' seems to have .been the issue submitted to the jury.

As there was no offer to pay at the trial, or at any other time, the contingency had not arrived when it would be proper to determine such a question.— It was, in our opinion, an immaterial issue, and we were, at first, inclined to reverse the case and send it back, on that account; but as the point was not noticed in argument and both parties have desired a decision upon the merits, we have concluded to consider the question as if properly presented and raised by the pleadings and decided by the jury.

If there were a prospect of the defendant presenting the matter of his defence anew, in another form, we should direct a repleader. 1 Burrows, 301. Cowper, 510. 16 Johns, 227. Evans v. Gee, 11 Peters, 85. The case will then be affirmed with costs. Chief Justice Doughas dissenting.