18 Cal. 391 | Cal. | 1861
Field, C. J. concurring.
This is an action upon a promissory note for eight hundred dollars. The defenses relied upon are fraud and failure of consideration, but we do not find in the record any foundation for these defenses. The note was given in consideration of the assignment of a certificate of purchase issued under a statute of this State, providing for the sale and reclamation of the swamp and overflowed lands. The alleged fraud rests upon the fact, that the plaintiff failed to inform the defendants of the existence of a judgment, which it is claimed constituted an incumbrance upon the land described in the certificate.
It is unnecessary to discuss the point as to the failure of consideration. The assignment vested in the defendants whatever interest-was conveyed by the certificate, and it is not important to inquire whether this interest constituted a legal or an equitable estate. In either case the consideration was sufficient, and the defendants cannot avoid the payment of the note.
We do not wish to be understood as expressing any opinion as to the validity of the claim acquired under the Melville judgment. It will be time enough to determine that matter when the question is brought before us upon a direct issue.
Judgment affirmed.