Cross v. Noble

The opinion of the court was delivered,

by Sharswood, J.

The three assignments of error, grounded upon exceptions to the charge and the answers of the learned judge below to the 2d and 3d points of the defendants, depend upon a single question: Whether, when a deed has been delivered containing no covenants, and the vendee has taken possession, he can defend against an action for the unpaid purchase-money by showing a defect in the vendor’s title ? It must be conceded that Mrs. Noble being a married woman when she executed the article and the deed, was not personally bound by any covenant contained in either. No action upon them could have been successfully maintained against her. We must strike out of the article the agreement to give possession on the 1st of April, and from the deed the covenant of special warranty. How, then, does the case stand ? . This is an issue awarded to ascertain the amount due upon a judgment entered upon a bond given for the purchase-money. It is to be considered to all intents as an action upon the bond by Mrs. Noble, the vendor. The existence of a valid lease for one year from the 1st of April 1868, when possession was to have been given, a fact not known at the time of the agreement, was undoubtedly a defect — an incumbrance — reducing the value of the land to the vendee: Dick’s Appeal, 7 P. F. Smith 467. What that reduction was, the jury are to settle, under proper instructions from the court. The vendee, as assignee of the reversion, was entitled to the rent reserved to the vendors; and his receipt of it from the tenant would not preclude him from setting up the failure of title to the extent of his real injury, allowing for what he had so received. The defence of the vendee in such a case is not defalcation or set-off. Then, indeed, the question of the personal liability of the vendor to damages would arise. A set-off is a counter claim — a cross action. Had the purchase-money been paid in full, Cross could not' have sustained an action against Mrs; Noble, either upon the article or the deed. Coverture would have been a good plea in bar. If the plaintiffs had brought an action upon another distinct contract against Cross, he could not have availed himself of the breach of either of these covenants under a plea of payment or set-off. Coverture would have been a good replication. But when a plaintiff — covert or sui juris — sues to recover the consideration of a sale, it has always been competent for the defendant to show that such consideration has failed in whole or in part. In the leading case of Steinhauer v. Witman, 1 S. & R. 438, there was only a covenant of special warranty, and the defence set up to the recovery of the purchase-money was eviction under a paramount title not within the terms of the covenant, and therefore the case was the same as if there had been no covenant at all; and Mr. Justice Kennedy, in Roland v. Miller, 3 W. & S. 390, has stated the rule as it has always been understood and acted upon in this state. “ The doctrine of Steinhauer v. Wit-man is, that if the consideration-money has not been paid, the purchaser, unless it plainly appear that he has agreed to run the risk of the title, may defend himself in an action for the purchase-money, by showing that the title was defective, either in whole or in part, whether there was a covenant of general warranty or of right to convey or quiet enjoyment by the vendor, or not; and whether the vendor has executed a deed of conveyance for the premises or not:” Lloyd v. Farrell, 12 Wright 73; Weakland v. Hoffman, 14 Id. 513; Herrod v. Blackburn, 6 P. F. Smith 103; Dankel v. Hunter, 11 Id. 382.

Judgment reversed, and venire facias de novo awarded.