In this case the appellee, Peter Juneau, filed his bill in the district court of Milwaukee county, for the foreclosure of a mortgage executed by the appellant to secure the payment of certain notes therein mentioned.
The appellant answered and admitted the execution of ■the mortgage, and the notes, and that the former was given to secure the payment of the latter, which is a part of the purchase money, but resists the foreclosure for the reason, that the appellee had, at the time of selling and conveying to him the subject of the mortgage, to wit: two lots in the town of Milwaukee, executed to him a warranty deed, and that the property was, at the date of said deed, incumbered with a tax sale, upon which a deed has since been given to the purchaser thereof, and that, by reason of said incumbrance, the title had wholly failed, and there was a total failure of consideration. Upon the bill, answer and exhibits, the cause was heard and a decree of foreclosure given, from which an appeal was taken to this court, where the case has been argued on the same ground on which it was below.
*583It is admitted by the appellant that lie took possession of the property under the deed of conveyance, and has remained in the peaceable and undisturbed possession thereof ever since. Under this state of the case, the only question for us to determine is, whether the mere existence of an incumbrance, unenforced, is a bar to the complainant’s recovery.
In the case of Bumpus v. Platner, 1 Johns. Ch. 213, the principle is decided, that a purchaser of land with warranty of title, who gives a bond and mortgage to secure a part of the purchase money, and takes possession of the land purchased, and has not been evicted by a paramount title, cannot be relieved against the mortgage, on the ground of a failure of consideration for want of title in the vendor. In the case of Abbott v. Allen, the chancellor, in delivering the opinion of the court, says: “This case comes within the general doctrine declared in Bumpus v. Platner, 1 Johns. Ch. 213, 218, that a purchaser of land, who is in possession, cannot have relief here against his contract to pay, on the mere ground of defect of title, without a previous eviction. But without resting on the opinion there delivered, I have again examined the question, inasmuch as the doctrine in that case was doubted by the learned counsel who opposed this motion.
If there be no fraud in the case, the purchaser must resort to his covenants, if he apprehends a failure or defect of title, and wishes relief before eviction. This is not the appropriate tribunal for the trial of titles. It would lead to the greatest inconvenience, and perhaps abuse, if a purchaser in the actual enjoyment of land, and when no third person asserts or takes any measures to assert a hostile claim, can be permitted, on suggestion of a defect, or failure of title, and on the principle of quia timet, to stop the payment of the purchase money, and of all the proceedings at law to recover it. Can this court proceed to try the validity of the outstanding claim, in the absence of the party in whom it is supposed to reside ; or must *584he be brought into court against his will, to assert or renounce a title which he never asserted, and perhaps never thought of ? I apprehend there is no such practice or doctrine in this court, and that a previous eviction or trial at law is, as a general rule, indispensable.”
The doctrine advanced by the chancellor we regard as the correct doctrine, and as fully applicable to this case: Wagoner v. McEwen, 1 Green’s Ch. 108; Brole v. Servely, 8 Leigh. 658; Grovenour v. Elmendorff, 5 Johns. Ch. 79; Woodruff v. Bunce, 9 Paige, 443; and that the incumbrance suggested is no bar to the complainant’s recovery by the foreclosure of his mortgage. By no rule of law can we regard the consideration of the notes as having wholly failed, and whether it may ever fail, we cannot even conjecture; but should it do so, then the purchaser can resort to his covenants of warranty, which was the security, in contemplation of law, agreed upon by the parties. In the full examination of this case, we see no reason why the complainant should be barred from foreclosure and recovery, nor any reason why the decree of the district court should be disturbed. We therefore affirm the decree with seven per centum damages, and order that the same be so certified to be carried into effect.