Copeland v. Loan
10 Mo. 266
Mo.
1846
Check Treatment
Scott, J.,

delivered the opinion of the Court.

The defendant in error brought an action by petition in debt, on a primissory note, executed by the plaintiff in error. The plaintiff in error filed four special pleas, alleging in substance, that the note sued on was obtained by fraud and misrepresentation in this, that the said Loan, the defendant in error, fraudulently represented himself to the plaintiff’s in error, to be the owner of a lot of ground in the town of Independence, which he sold to them for the sum of $500 — $100 of which was paid, and that the note in suit was given for the balance. That the said defendant was not, at the time of sale, and is not, the owner of the said lot of ground. The two last pleas allege also that the fee simple of the lots is in the County of Jackson. There was a demurrer to these pleas, and judgment given on the demurrer for the defendant in error ; afterwards, the plea of nil debit, which had been filed, was withdrawn, and judgment entered for the defendant in error.

*268It may be conceded, that independently of the late statute in an action on a promissory note, a total failure of consideration might be set up as a defence, in order to defeat a recovery. Cook vs. Greenleaf, 2 Whea. 13. Frisbee vs. Hoffnagle, 11 John. 50. In both of these cases the consideration of the notes sued on was the conveyance of land, and from the report of them, it appears, that the fact that the plaintiff had no title to the land he had sold, was established by the defendants. A person sells another a tract of land, and puts him in possession of it, and when he asks for his purchase money, he is told that he has no title. The law allows this. But if it is allowed, is there any hardship in requiring him who asserts that the vendor has no title, to show it by his plea ? The purchaser cannot know that the vendor has no title, unless he is informed as to the state of it, and it seems to be nothing but reasonable, that after he has so far confided in the vendor, as to buy his land on his representations, and enter into possession of it, that if he by his plea, objects his want of title, he should set forth the facts and circumstances which show that the vendor has no title. Courts of law, in entertaining this defence, exercise a power vested in the Courts of equity, and the practice in them, I believe, is never to allow an injunction against the recovery of the purchase money on the bare assertion that the vendor has no title to the land conveyed. It must be shown how it is that he has no title. A party’s title may be affected in various ways, by fraud and forgeries unknown to the vendor, and to enable him to defend it, it should be shown wherein it is defective. There is no injustice in this. A contrary course might work injustice to vendors. The bare assertion in the two last pleas, that the fee simple in the lot for which the note sued on was given, is in the County of Jackson, does not obviate the objection that exists to these pleas.

The other Judges concurring, the judgment is aifirmed.