— There can be no doubt, that a vendee of land has the right to extinguish out-standing incumbrances, and charge the vendor with the amount thus paid to perfect his title, if ihe vendor has entered into a covenant with him, that the estate is free from incumbrance. Nor can this right be impaired, by the vendees knowledge previous to the purchase, that such incumbrance existed, as he might well suppose, that the vendor would discharge it.
We are not informed in the bill of exceptions, whether any conveyance was made to the defendant in error, and if there was, what was its character; we shall, therefore assume, that there was one executed, containing cither an express or implied *647covenant, under the statute, that the land was free from incumbrance, as it is not conceivable on any other hypothesis, how the right to set off or discount in payment, the amount paid to extinguish the incumbrance could arise or come in question.
Assuming this to be the true state of the case, the allowance could not be made under the plea of set off. Our statute allowing mutual debts to be set off, is a substantial copy of the two acts of 2 and 8 George II. on that subject. Under these acts it has been held, that unliquidated damages cannot be the subje'ct of an off set, although secured by a bond with penalty, but can only be allowed in such cases where a bond is given with a penalty, for the payment of a certain sum of money.
Now in this case it is most manifest, that the covenant against incumbrances, is for an uncertain and unliquidated amount, and therefore, cannot be the subject of a set-off.
The next question is, can the sum paid in discharge of the judgment, be allowed the defendant, under the plea of failure of the consideration. We are of opinion that, it cannot. In the case of Peden v. Moore, 1 Stewart and Porter 71, a partial failure of consideration was permitted to be proved in the casé of a note given for personal property, but it was intimated that where real estate was the subject of the contract, the rule should be different.
In Wilson v. Jordan, 3 Stewart and Porter 72, the court held that it could not be shown in an action for the purchase money of land, that the vendor had not title; there being no eviction, and no fraud alledged. It is intimated in the opinion in that case, that no difference should exist between sales of real and personal property, as to allowing the defence of total or partial failure of consideration to be made; but the case did not call for the expression of any opinion on that point, and it cannot, therefore, be regarded as authoritative.
We do not think, that on principle the right to reduce the amount agreed to be given for the purchase of land, by proof of a partial or total failure of the considerition, can be sustained when the contract has been executed, by deed with warranty. *648Not only is there a seeurity of a higher nature, the covenant against incumbrances, but it would involve the jury in the investigation of matters either foreign to the question before them, or not proper for their investigation. Thus, if the defendant seeks to reduce the amount of a note given for the purchase of land, either in whole or in part, by proving that he had paid off an outstanding incumbrance, it would certainly be open to the plaintiff to show, that he was not bound to discharge the incumbrance, from some illegality in the consideration, or that he had himself discharged it — such an inquiry might involve an examination of intricate accounts between the plaintiff and the incumbrancer, such as a court of equity could alone, with propriety, adjust.
No case like the present has been brought to the notice of the court, in which this defence has been allowed, and we are not willing to establish such a precedent, although many of the difficulties which we have supposed, do not exist in this case; as the incumbrance paid off by the defendant was a judgment lien on the land.
In Miller v. Watson, 5 Cow’s Rep. 195, the facts were, that Watson had sold Miller a tract of land with warranty; an actionjof ejectment being brought against Miller to recover the land, Watson admitted that the title he had conveyed had failed, — struck a balance of what would be due to Miller, and promised in writing to pay it. The action was brought on this promise, and the court held it could not be maintained, on the ground that in judgment of law it was a promise to perform the covenant, which was a security of a higher nature, and that the action must be founded on it. The reason of this decision is fully in point, for the right to reduce the recovery on a suit for the purchase money, by proof of the payment of an incumbrance, cannot stand on higher ground, than the right to bring an action on an express promise to pay the sum so paid by the other party, in discharge of the incumbrance.
In the case of Bumpass v. Platten and others, 1 Jhs. Ch. Rep. 247, which was a bill filed to vacate a bond and mortgage, on *649the ground of total failure of the consideration, Chancellor Kent lays down the rule in a court of equity to be, that no relief can be liad on the ground of failure of consideration, when there has been no eviction, and that resort must be had to the covenants in the deed. [See also 5 Littell’s Rep. 247.] Such has also been repeatedly held to be the rule atrlaw in this court; and it Would be strange if a total failure of the consideration would not avail without an eviction, that partial failure would be a good defence under the same circumstances.
In the case of the sale of a chattel with warranty, the rule has been relaxed, so as to permit a total or partial failure of the Consideration, to he given in evidence in an action for the purchase money; but so many and such Cogent objections exist, against permitting this to be done in the case of the sale of land, where the contract is executed, that we are unwilling to extend the principle any further than has already been done.
Let the judgment be reversed and the cause remanded.