delivered the opinion of the court, and after stating the facts, proceeded as follows : ‘
On the first exception .it has been argued, that there is a failure of consideration, which constitutes a good defence in this action.
Without deciding whether, after receiving a deed, the defendant could avail himself of even a total failure of consideration, the court is of opinion, that to make it a good defence, in any case, the failure must be total. The prior mortgage of the premises, and the decree of foreclosure, do not produce a total failure of consideration. The equity of redemption may be worth something: this court cannot say how much; nor is the inquiry a proper. *17 ,oae in a court of law in an action on the note. If the defendant be entitled to any relief it is not in this action.
But if any doubt could exist on the first exception* there is none on the second. The note was given with full knowledge of the case. Acquainted with the extent of the incumbrance, and its probable consequences, the defendant consents to receive the title which the plaintiff was able to make, and on receiving it, executes his note for the purchase money. To the payment of a note given under such circumstances, the existence of the incumbrance can certainly furnish no legal objection.
It has been also said that the deed is defective. If it be, the defendant may-require'a proper deed, and it is not impossible but there may bé circumstances which would induce a court of equity to enjoin this, judgm’ent until a proper deed be made: But the objections to the deed cannot be examined in this action.
Judgment reversed. c
*18 Judgment. This cause came on to be heard on the transcript of the record of the circuit court of the United States for the county of Washington, and ivas argued by counsel. All which being seen arid considered, it is the opinion of this court that there is error in the proceedings of the said circuit eourt, in this, that the said court refused to instruct the jury on the application of. the counsel for the plaintif£ that on the facts given in evidence to them, if believed, the plaintiff was entitled to recover in that action; wherefore it is considered by this court, that the said judgment of the said circuit court be reversed and annulled, and that the cause be remanded to the said court to be proceeded in according to law.
Notes
By the French law, the price of the sale of real property cannot be recovered by the vendor, if the vendee has been disturbed (trou blé) in his possession, by prior incumbrances, or has just ground for Apprehension on that account, úntil the litigation concerning them is terminated; unless, indeed, the vendor gives sufficient security to indemnify the vendee in case of eviction. Pothier de Vente, n. 280. Code Napoleon, Liv. 3. tit. 6. chap. 5. n. 1653, For the various distinctions in our law as to where the vendee may detain the purchase money, if in cumbrances are discovered previously to the payment of it, and to what relief he iscentitled if evicted after the money is actually paid, see Sugden’s Law of Vendors as above cited, which contains a complete digest of thp cases in. equity on this subject.