Bowley v. Holway, 124 Mass. 395

Bowley v. Holway

124 Mass. 395 | Mass. | 1878

Morton, J.

Under the will of his father, the plaintiff took only a life estate in the homestead. He conveyed it to the defendant by a deed containing covenants that he was seised in fee simple and had good right to convey and the usual covenants of warranty. This being a suit to recover the consideration of that conveyance, the only question is, whether this partial failure of title is a defence pro tanto. In suits to recover the price of personal property sold, it is well settled that a partial want or failure of the consideration, or a breach of the warranty of title or quality, may be shown in defence, in reduction of damages. This rule is adopted to avoid circuity of action, because all the *397rights of the parties growing out of the same transaction can be justly and conveniently settled in one suit. But according to the weight of the authorities, when the consideration consists of real estate conveyed by deed with covenants of title, the grantee, in the absence of fraud, cannot show, in defence of an action for the consideration, a breach of the covenants of the deed, but he is remitted to his action upon his covenants. 2 Kent Com. (12th ed.) 473, and cases cited. In Rice v. Goddard, 14 Pick. 293, there was a total failure of the title, and the grantee was ousted from the possession of the land, and it was held that this was a good defence to a suit upon the note given for the land, because, there being an entire want of consideration, it was nudum pactum. But the case does not intimate that a partial failure of title, or other breach of covenant, could be shown in defence by way of recoupment. In the case at bar, the plaintiff was seised of a freehold in the premises, which by his deed passed to the defendant. There was not, therefore, a want of consideration which made the promise to pay the agreed price nudum pactum.

Judgment affirmed.