dissenting.
The judgment of the Court below is affirmed by a majority of this Court. I dissent from the judgment of affirmance.
The plaintiff’s intestate purchased of John Fife a tract of land and took his deed warranting the title. John Fife purchased of Alexander J. Gordon, the defendant, and the consideration expressed in the deed was five hundred dollars. The defendant’s intestate was sued for the land and evicted. The defendant was notified of the suit and called on to defend. The present suit is against Alexander J. Gordon, as a remote warrantor. The plaintiff on the trial offered and read in evidence the ab we named deeds, which contained the usual clauses of warranty of title. He read in evidence also, the record of the suit against his intestate for the money of the land, and the notice to defendant, and closed his cause.
The defendant then proposed to prove by Benjamin F. McDaniel, that though the deed from Gordon to Fife recited that the consideration which he paid for the land was five hundred dollars, yet in truth it was only one hundred dollars. The plaintiff objected to the testimony as inadmissible against a bona fide purchaser without notice. The Court ad-* mitted the evidence and the plaintiff excepted.
A covenant of warranty runs with the land, and though (the words “and assigns” be omitted in the warranty the remote grantee may sue in his own name. Leary vs. Durham, 4 Ga. 603; Redwin vs. Brown et al., 6 Ga. Rep. 317, 318. The plaintiff’s intestate was the assignee, therefore, of the *538contract or covenant of warranty made by Morgan to Fife, and had a right to look to the entire deed to ascertain the extent of her rights and remedies on that covenant, if it should become necessary to resort to it. Knowing that she had a yight to look to that as security, in the event of the failure of the title and the insolvency of her immediate grantor and warrantor the grantor ought to be held bound by his admissions and covenants therein. No sound or commendable reason is apparent why a greater consideration should be expressed in the deed than was in fact received. It certainly could be of no advantage to the grantor, who, should his title fail, is bound to respond at least for the considetation money and four years interest, the period which bars an action for mesne profits. If the consideration was put in for a larger amount than he actually received, to answer the immoral purposes of a speculator, who wished to exaggerate the cost of the laud, to extort a higher price from an unsuspecting and honest purchaser, the grantor ought not to be allowed to retract his written declaration, perhaps made and certainly used for such a purpose, when he is called on to respond to the defrauded purchaser.
Down to the period of our revolution and long after, the rule of evidence of the English Courts admitted no evidence to add to, vary or contradict the terms of a deed, 1 Phillips Evidence, 548. This rule extends to the consideration. Baker vs. Dewey, 1 Barnwell & Cresbull, 704. The case of The King vs. The Inhabitants of Scammenden, 3 Tenn. Rep. 474, is an authority for the contrary doctrine. But the authorities referred to by Lord Kenyon, do not support him, and that case ■has not been followed in England The American authorities have relaxed the rule if not destroyed it, and seem to admit very liberally, evidence of additional consideration of the sort expressed in the deed, or what consideration was paid, when the deed states that there was a consideration, but does not express what it was, &c. But this is not done when is *539would prejudice a bona fide purchaser without notice. Duvall vs. Bibb, 4 Herring & Mun. Rep. 113.
When the witness McDaniel was sworn, he testified, that Fife paid Gordon one hundred dollars only for the land, and it was understood at the time, that there was a dispute about the title, and F-ife executed to Gordon his bond for $500, to indemnify him against loss for putting the consideration of $500 in the deed. This is the manifest understanding of the case from the imperfect record before us. When the case was closed, the counsel for the plaintiff requested the Court, m writing, to charge the jury that if Gordon received #100 in money for the land, and Fife’s bond of indemnity against loss on account of his warranty, and for this reason executed his deed and warranty for $500, the plaintiff was entitled to recover the $500 and that the defendant must rely on his indemnity bond against Fife. The Court refused to give this charge, and counsel for plaintiff excepted.
I think the charge ought to . have been given. Upon the face of Gordon’s contract or covenant he was liable at law for the #500, and at least four years interest. If he can be relieved either in a Court of Law or Chancery, from liability ■to that extent, it must be by reason of some fact or circumstance which entitles him inequity to reduce its amount; and Courts have allowed evidence simply of the amount of the consideration actually received by him, if less than that expressed in his deed, to be given in evidence, and to have the effect of fixing the measure of his vendee’s redress. This is regarded as an equity in his favor. But if the amount of consideration specified in the deed, be inserted for a sinister object, as to entrap a purchaser into- confidence in a bad title, what becomes of the equity ? In this case the title was disputed, and the result shows that it was no title. The consideration of #500, four hundred dollars more than the price received for the land, was deliberately and by contract inserted In the deed, and the defendant knowing the immorality of the act, took care to require a bond to indemnify him against *540She legal effect. I think the Court ought to have given the charge, as requested, and that it ought not to have allowed the defendant to avail himself of a rule, of at least doubtful propriety, established to shield him from injustice, to inflict wrong and injury upon another.