— The plaintiffs took the note with notice. It was therefore open to the same defence, as if sued by the payee. The note was given for a conveyance of land to which the grantor had no title. The consideration therefore failed. Ordinarily, when a person gives his note for a quitclaim deed, he cannot, on account of a defect in the title, avoid the payment of it But here was an express written stipulation, that the note should not be paid, unless the land could be held by the defendant.
To this case, the general rule is not to be applied, because the parties have otherwise agreed. Exceptions sustained»