ORMOND, J.
— The questions of law, which arise out of the charges given and refused by the Court, will be considered in the order they are presented in the record.
1. From the first charge which the Court refused to give, considered in connection with the -charge given, it appears that the contest iii the Court below was, whether the written contract, supposed to have been entered into by the defendant, was-ever consummated so as to be binding on him; and whether the real contract was not a subsequent parol contract, entered into between Loggins and Cooper. It is obvious, that this is a question of fact; and, therefore, the Court co.uld only be asked to determine the law hypothetically.
*518On the supposition that a contract was entered into between the defendant and Cooper, and that it is evidenced by the notes executed by the former, and the title bond to him by the latter, the title could not be demanded by the vendee, until the time stipulated in the bond when the title was to be made ; and a tender of the purchase money and demand of title before that period, would not entitle the vendee to a rescission of the contract. This question is not at all affected by the fact, that the title was in another at the time of the tender ; as the vendor may acquire it before he can be called on for it. Whether there may not be an exception to this rule where it is impossible for the vendor to obtain the title, it is not necessary now to inquire.
If, on the other hand, the contract between the parties for the sale of the land, was the parol contract supposed to have been entered into in the summer of 1838, then a tender of the purchase money according to its terms, and a refusal to make title, would authorize the vendee to rescind the contract.
2. As a tender of purchase money and demand of title, presupposes a right to receive the money; and as, by the assignment of the notes to the plaintiff by the vendor, of which the defendant had notice, the vendor had deprived himself of the right to receive the purchase money, it follows that a tender to him, under such circumstances, would not authorize a re-scisión of the contract. The tender, to be available, should have been made to the plaintiff, who, by the assignment, became invested with all the rights of the vendor. Whether, after such demand, he would not be entitled to a reasonable time to obtain the title from the vendors, unless previous notice had been given to him of the intended tender and demand of title, it is not necessary now to determine; as no demand appears to have been made of him.
3. The maker of a note, when applied to by one intending to purchase it, to know if there is any defence against it, by admitting he has none, thereby precludes himself from after-wards setting up any defence, when sued on the note, which existed at that time, within his knowledge, as it would be a fraud on the intended purchaser. But we think he would not be precluded from making a defence which might subsequent*519ly arise out of the original contract; such, for example, as a total failure of the consideration. [See Buckner v. Stubblefield and others, 1 Wash. Rep. 386 ; ibid. Hoomes v. Smock, 390.] As already remarked, to permit the maker to avail himself of any defence which existed at the time of the application to him for information, would be a deceit; but if the note be purchased on the faith of a promise, by the maker, to pay it, he will be compelled to pay the assignee at all events, on the ground of a contract, of which the purchase of the note would be a sufficient consideration. So in this case ; if the contract was rescinded after the plaintiiT acquired title to the notes, from the inability of the vendor to make title, the defendant being -ignorant at the time he was applied to by the plaintiff for information respecting the notes, of the inability of the vendor to make title, the failure of the consideration would be a valid defence against' the notes in the hands of the plaintiff.
These views dispose of all the objections taken at the trial. in the Court below; and the judgment must be reversed, and the cause remanded for a new trial.