The opinion of the court was delivered by
Gibson, C. J.Lighty v. Shorb contains the expression of a prin*196ciple which rules the case before us. It was said that where nothing but prompt payment would stand with the contemporaneous understanding of the parties, the purchase money is not to be detained as a security for defects in the title subsequently discovered; and that their intention is to be ascertained by the nature of the transaction and the character of the security. The principle is a wholesome one, and consonant to the intention from which their responsibilities proceed. By the terms of the sale in the present case, the money in contest was not to be detained for any reason whatever. It was agreed that these $500 should be paid at the execution of the articles which bear date the 9th of the month, but which were probably not executed till the next day, when Mrs Yohe, the purchaser, gave her promissory note for the exact sum without defalcation at 60 days, on which suit has been brought. For her exclusive accommodation, it was received as so much cash; and so far as she or her representatives are concerned, it must be treated as such. Payment of this part of the purchase money was not to depend on the quality of the title, for it was to be received before its quality was to be inspected. It was in fact paid in the purchaser’s note taken as money. The transaction was in effect payment of so much received by one of the vendors, and lent by him to the vendee on separate account. The parties did not indeed go through the form of paying with the one hand and taking back with the other; but the operation was not the less a loan, nor would the plaintiff be the less answerable to his co-vendor for so much l'eceived by him to their joint use. Why then should not the note be paid ? If the vendors have since broken their covenant for title, they are answerable for damages in an action on it; but not as cross-demand in an action by one of them, or as failure of consideration in a separate transaction. Nor shall the vendee’s executors turn a favour done to their testatrix to the disadvantage of him who conferred it. For this reason, which is conclusive as regards the right to recover, it is unnecessary to consider the bill of exceptions to evidence.
Judgment affirmed.