We are not at all prepared to say that, before a proper forum and with the proper parties, and with such allegations as were asserted as true on the argument, these parties are without redress. But we think as the case stood, and as it now stands, the charge of the court was right. Glenn & Wright, and they alone, have Phillips’ deed. To allow these plaintiffs in error to set off against their notes the value of the land lost by the breach of Phillips’ warranty to Glenn & Wright, would be no defense by Phillips to an action by them or their vendees on that warranty. General Gordon and his co-purchasers got no warranty and have given none. If Glenn &• Wright be insolvent, and if the other matters set up on argument here be true, we do not say that these defendants may not have some rights of subrogation, etc. But with the present parties and allegations and pleadings, to give to these defendants the right to set np the warranty to Glenn & Wright,' would be to expose Phillips to the same difficulty they are in. Who shall say that Glenn & Wright have not sold to parties who may have a right to sue Phillips on his deed ? The legal right of the plaintiffs in error is clearly gone. They got no warranty, and they gave none. If they have, any *242rights it is by virtue of the equities that may arise out of the situation of Glenn & Wright and their status as to this land. This matter could not have been considered by the court as Glenn & Wright were not parties, nor did any facts appear to justify the court in charging the jury as to the question of subrogation, since it did not appear who was the party at present entitled to sue on Phillips’ deed.
Judgment affirmed.