The opinion of the Court was drawn up by
Whitman C. J.This is an action of assumpsit on a note of hand. The plaintiff is an indorsee. The defence is a total want of consideration; and it is admitted that the note was indorsed after it became duo, so that the defendant is entitled to defend as if the note were still in the hands of the payee. The note appears to have been given to one French, for one fourth part of the consideration for the conveyance of an undivided moiety of a tract of land in Bangor. The conveyance was by deed of general warranty, in common form, bearing date Nov. 29, 1834. The whole consideration agreed to be paid therefor was $1155,55. On the seventeenth of the same November French mortgaged the whole tract to one Davis, to secure the payment to him of $1784,84.
At the trial the defendant offered evidence tending to prove, that the land so mortgaged was not at the time, and had not been since, equal in value to the sum for which it was mortgaged, and therefore, that there was no consideration for the deed *294made to him; and further, that the said Davis, on the thirtieth of October, 1838, had given notice of his claim to a foreclosure of his mortgage, as provided in the Revised Statute, ch. 125, $ 5. It did not appear that any actual entry by Davis had ever been made upon, or that the defendant had ever been dispossessed of, the premises conveyed to him.
It appeared that, about two years after the .defendant purchased, he called upon a surveyor to measure three hundred and fifty cords of wood, cut on fifteen acres of said tract; and that French paid the surveyor for his services; and that in 1836, French and the defendant joined ,in a conveyance by deed of warranty, of a portion of said tract, to one Coombs, for the consideration of $1142; and that there was, on fifty acres of the mortgaged premises, thirty cords of wood, principally hard wood, to the acre. It was also proved, that French had, under the act of the United States, passed in 1841, ch. 9, become a certified bankrupt.
Upon these facts, proved and offered to be proved, it was agreed, that judgment should be entered upon nonsuit or default, as the Court upon consideration should direct.
It seems now to be well settled in Massachusetts, New York and New Hampshire, and indeed generally, notwithstanding covenants of general warranty may be contained in deeds of conveyance, yet, if the grantor had no title to the land conveyed, that this may be given in evidence, in suits between the original parties, in defence to notes of hand given for the consideration thereof; and so also against indorsees of such notes, when affected with notice, at the time of indorsement, of such defect of title.
In this State, in Lloyd v. Jewell, the late Chief Justice Mellen, in delivering the opinion of the Court, was led to suppose, from certain dicta to be found in some of the earlier volumes of the Massachusetts Reports, that the law had been settled otherwise in that State. That cause, however, is not to be regarded as having been actually decided upon that ground, as there was in that case evidence of a failure of title in the grantor to but a small portion of the land conveyed. In such *295case it is fully settled iu England, and generally in this country, that the grantee must be remitted, for his remedy, solely to the covenants in his conveyance. It has not, therefore, been directly and authoritatively settled in this State, that a total want of title in a grantor will not be a good defence to a note given in consideration of his conveyance, when not in the hands of an innocent indorsee.
In the case of Wentworth v. Goodwin, 21 Maine R. 150, the defence set up to a note of hand, was a total failure of consideration ; and it seems to have been tacitly admitted, that an entire want of title in a grantor would authorize such a defence to a note given for the consideration. That case, nevertheless, was decided on other grounds. It did not appear that the want of consideration was total; and therefore it was considered, that the defence set np was not sustained.
That case, in many of its features, was analogous to the one before us; and in principle would scarcely seem distinguishable from it. Certain real estate had been attached by a creditor of the owner, who, afterwards, conveyed it by deed of warranty, and took the note therein in suit for the amount of the consideration. When the creditor obtained his judgment he took out his execution, and levied upon the whole of the land conveyed.
One reason assigned, in delivering the opinion in that case, why the failure was not total, was, that it did not appear, that the defendant had not been in the enjoyment of the rents and profits, for which he would not be answerable to any one else. So in the case at bar, it does not appear, that the defendant has not been in the actual receipt of the rents and profits from the time ho took his deed, in 1834, to the time of the institution of this suit. And there is reason to presume from the evidence, that he had availed himself of the rents and profits thereof; and for which he is not accountable to any one, the mortgagee, until after actual entry, not being entitled thereto.
Again, in the case cited it is said, that it does not appear that the land was set off for its full value, and that the presumption is not that it was so, as the law secures to the debtor *296a right of redemption, which is subject to attachment and sale. Whether the presumption in the case at bar is one way or the other, as to the value of the mortgaged premises in comparison with the amount for which they were mortgaged, it is unnecessary to inquire, for in this case it must necessarily be inferred, that the defendant deliberately admitted, that the right of redemption was of considerable value. How else could he, in twelve days after the mortgage was made of the whole tract, to secure but $1784,84, agree to give for a moiety only of the same premises $1155,55, thereby showing in his estimation that the whole Was worth $2311,101 He offers, however, to prove that this estimate Was incorrect. But we are not quite prepared, in the absence of all pretence of fraud, to come to the conclusion, that, for the purpose of avoiding the note of hand in suit, it is competent for him to controvert his admission so made.
To constitute a valid defence, in a case like the present, we understand, that the defect of title must be entire; and so that nothing valuable passes by the deed of conveyance. If any thing valuable does pass to the grantee short of an absolute interest, in conformity to the terms of the deed, it becomes a case of unliquidated damages, the remedy for which should be sought by an action of covenant broken. The defendant’s grantor, French, at the time of the conveyance, was the owner in fee of the mortgaged premises, against all persons, the' mortgagee excepted; and, as to him, he was the owner of a right of redemption. This right of French, by his deed, passed to the defendant. Some estate therefore passed by the deed.
It is contended that the bankruptcy of French should be admitted to vary the case, in conformity to the' principles laid down in the case of Knapp, adm’r, v. Lee, 3 Pick. 452. But the cases are dissimilar. It is apparent that the defendant here must have had full knowledge of the incumbrance, the deed creating it having been put on record the day after its date, and an advertisement of a claim to a foreclosure having been published in 1838. Until French became a.bankrupt, *297which could not have been Before some time in 1842, for aught that appears, he was solvent. During all the time, from 1834 to 1842, it would seem, that he and the defendant were in the joint occupation of the mortgaged premises, with the exception of what they had conjointly sold to Coombs; and no effort, during that time, was made by the defendant to have the incumbrance removed. He might have redeemed the mortgaged premises, and have held the whole till reimbursed; and at the same time have maintained an action against French for reimbursement; but he resorted to no measure of the kind, and suffered the three years to elapse after the advertisement of the claim to a foreclosure, whereby the title, both in himself and French, became extinct; and enforced no claim against French upon his covenants until barred by a certificate of bankruptcy, nearly eight years after his cause of action accrued. To allow of this branch of the defence, under such circumstances, would be admitting him to take advantage of no inconsiderable degree of negligence on his part, which we think would not be consistent with the rules of law, or the justice of the case.
Defendant defaulted.