The opinion of the Court was announced orally, at the same term of the argument, by
Shepley J.After stating the facts, it was remarked in substance. 1. The counsel for the defendant contends, that nothing passed by Gilman’s deed to him, and that the note, *251therefore, is without consideration. Bat he took the estate subject only to the mortgage. If Allen and his wife had both deceased soon after the deed to the defendant, he would have held the land, subject only to the payment of damages for non-performance of the condition of the mortgage to Allen. There is no evidence, that the estate conveyed to the defendant is not a valuable one, although subject to Allen’s mortgage.
It is also said, that there can be no conditional judgment for non-performance of duties of a personal character. But damages may be recovered for non-performance of personal services, as well as for services to be performed by others. It may prove, that the whole farm may be required for the support of Allen and wife; and on the other hand, it may or might have happened, that the purchase was a good speculation. The defendant took the estate subject to that contingency.
It is further contended, that the defendant was induced to make the purchase, by the misrepresentations of the payee of the note. It does not seem, however, that he did any thing more, than to give an account of what was contained in the deed of conveyance, and to express his opinion of its effect. This is no proof that he knowingly made such representations, as to make himself liable. The defendant knew, that there was a difficulty between Gilman and Allen, and that there was a suit pending. That should have put him on his guard, and was sufficient to warn him not to trust to opinions of such as were friendly to one side of the question.
The defendant must he defaulted.