OpiNiow by
Ms. Justice Stebbett:The judgment against defendants having been opened for the purpose of permitting them to show failure of consideration of the note on which it was entered, evidence was introduced tending to show that it was given for the purchase money of land on which there was then an outstanding mortgage executed by a prior owner of the land; that in an action of scire facias after-wards brought on the mortgage, with notice to the terre-tenant, judgment was obtained and the land sold thereon to a stranger.
To meet the defense thus interposed, the equitable plaintiff introduced evidence for the purpose of showing that defendants were estopped from setting up failure of consideration as against him and his assignor Daniel Bhodes. On that subject Bhodes testified as follows:
“Before I took a transfer of the judgment, I saw Nason Bow-ley and had a talk with him about the judgment; had the talk before I bought it. I told him that I talked of taking the note; that Mr. Parker and I talked of trading. I should have said judgment, and I thought before I took it I would go and see what they had to say about it, and see if it was all right, and see the property. I had not been at his house before. We talked some about it. He told me what he and his son had and said that the note was all right, that it was good. I took the judgment on the strength of the statement made by Nason Bowley. If he had not made this statement that it was good I should not have taken it. Mr. Bowley showed me what property they had, and iu that conversation, he told me the judgment was good. In this conversation with Mr. Bowley he said there was nothing. . . . He said there was nothing against them, the place was clear. We were talking about the judgment; he said there was nothing against them, the place was clear.”
In view of this and other evidence, the equitable plaintiff, in Ms first point, requested the court to charge: “That if prior to *466tbe purchase of the judgment by Rhodes from Parker, Rhodes went to Nason Rowley to inquire about the judgment, and whether there was anything- against it, and if there was not he would purchase it, and intended to sell it to Clark; and in answer to the inquiry Rowley informed him that it was good, and there was nothing against it; and on the faith of that representation, Rhodes purchased and paid a valuable consideration for it. Rowley is now estopped from showing that any encumbrance existed against the land for which the judgment was given, or from showing any defense to the payment of the judgment.”
This point was substantially refused by the court saying: “Whether correct or not in the abstract, we say to you that there is no evidence that estops defendants from setting up the failure of the consideration of the judgment,” and also charging the jury “that upon the undisputed evidence in the case, their verdict should be in favor of the defendants.” In thus withdrawing the case from the jury, and directing a verdict for defendants, the learned judge erred.
The evidence on which plaintiff’s first point is predicated was wholly verbal, and therefore proper for the consideration of the jury. If they were satisfied as to the truth of the facts recited in the point, the legal conclusion sought to be drawn therefrom, by plaintiff would necessarily follow; and if Nason Rowley was thereby estopped as to Rhodes, he was also estopped as to his as-signee, the equitable plaintiff.
It is unnecessary to consider the remaining specifications of error.
Judgment reversed and a venire facias de novo awarded