Agreeably to the case of Leonard v. Bates, May term, 1822, the decision of the Circuit Court in this case, is correct (1). The demurrer admits the facts stated in the plea, that the note was given for the purchase-money for the, *4land; and that Harris never had a title to the land, and could.' make no conveyance to the defendant. These facts, alone, show that the consideration of the note has wholly failed. Although WaS n°^ ma<^e payment of the money, it was to be made as soon as the money was paid; and the defendant was not bound to part with his money, until he saw not only a disposition but an ability in the vendor to make the title. The cases cited in Leonard v. Bates support this position; and one of the principal reasons of this doctrine is given by Lord Kenyon in Goodisson v. Nunn, 4 T.R. 761,—“that it would be absurd to compel one party to a compliance on his part without a compliance on the other part, and put him to the necessity of having recourse to the other for non-compliance, when that other might he insolvent.” But this case grows stronger by the consideration, that what is supposed possible in other cases, is reduced to a certainty in this; for it is a fact, admitted by the demurrer, that Harris the vendor is actually insolvent, and has absconded from the state. Under such a state of facts, the principles of common honesty would entitle the defendant to the most liberal-construction of the foregoing doctrine in his favour.
Tabbs, for the plaintiff. JDt7vey and Kinney, for the defendant.The defendant does not, as the plaintiff’s counsel supposes, rest this case as to the impeachment of the note on the ground ©f fraud, as he must have done at common law; but he rests his defence, principally, on a.total failureof consideration under our act of assembly: and as there has been a total failure of consideration, he is authorized.by the act of assembly to plead it. (2).
If this note had remained in the hands of Harris, and the action had been brought by him, this plea would have been an unquestionable bar to the action; and the act of assembly secures to the obligor the same equitable defence against the assignee that he would have had against the obligee; we therefore have no doubt but that the plea was properly sustained (3).,
Per Curiam.The judgment is affirmed with costs.
Vol. 1. of these Rep. 172, and note (2), p. 176.-—Muchmore v. Bates, Ibid, 248. Where, as in the case in the text, the payment of the purchase-money and the execution of the deed ate to he concurrent acts, a suit cannot be sustained for the money until the vendor has executed or offered to execute, the title. Ibid. Nor can tho *5vendee recover for a breach of the contract, in such a case, unless he has paid the whole of the purchase-money; Huntington v. Colman, Ibid. 348,—Meriwether v. Carr, Ibid. 413; and unless he has also made a demand of the deed. Sheets v. Andrews, Nov. term, 1829, post.
Leonard v. Sates, cited in the text,, and note (1).—R. C. 1831, p. 405.
The statute, after malting notes and bonds assignable, enacts:— “that such assignee or assignees shall allow all just set-offs, discounts, and defence, not only against himself, but against the assignor, before notice of such assignment shall have been, given to the defendant.” R. C. 1824, p. 330.—R., C. 1831, p. 94.