Wilson v. Webster , 1 Morris 312 ( 1844 )

Per Curiam,

Mason, Chief Justice.

The only exception taken to the proceedings below, by the plaintiff in error, is in relation to the instructions of the court to the jury. Six several instructions were asked by the counsel for the plaintiff in error and refused, either wholly or in part. All these except the fifth are of two classes. First, those calling for a decision that the sale of improvements on the public lands was an insufficient consideration for a promise; second, that it was an illegal consideration and that the law in neithercase would compel the payment of a note given therefor.

Both these points have been frequently decided by this court, and the ruling of the court below was in perfect accordance with those decisions. Freeman vs. Holliday, Hill vs. Smith, and Stannard and others vs. McCarty. The only question we need to consider therefore, is that raised by the fifth instruction asked, and the charge of the court thereupon. That instruction was as follows : “ That if the jury were satisfied that there were improvements on a part only of the lots so sold and conveyed, they were bound to find a verdict for the plaintiff only for the proportionate value of the lots on which there were improvements at the time of the execution of said note.” The court refused to give this instruction in the precise terms in which it was asked, but charged the jury that if the lots constituted one tract, an improvement on one, might enure to the benefit of all, but otherwise, if the lots constituted separate and independent tracts. The last branch of this charge is in accordance with the instruction asked. The plaintiff in error could not therefore except to it, so that it need not now be considered.

By the first branch of the charge we understand the court to have ruled, that where a person is in possession of one entire tract of public lands, having an improvement on a portion thereof, a quit claim deed for the whole, constitutes a good and valuable consideration for a promise, and a note given therefor can be collected in full. We think that instruction was clearly correct. We gt> farther, and say that the same would have been the result had the quit claim deed embraced other distinct and independent tracts, on which there were no improvements, if no deception was practised upon the purchaser. The rule contended for by the counsel for the defendant in error, isa sound one; that where there is no fraud or misrepresentation, the consideration is not to be apportioned. Where there is no consideration the contract will not be enforced, but a defendant cannot successfully resist the payment of a promissory note on the ground of inadequacy of consideration. He must be the judge -of that matter at the time of making the contract.

Suppose then, that Wilson had given this note in consideration of a quit claim deed from Webster for lots, in some of which the latter bad an interest, and if? others not—there being no fraud or deception prac-tised, and Wilson all the while understanding &e facts precisely as they existed. The conveyance of the interest which Webster held would in that case constitute the entire consideration of the contract. Wilson, who is presumed to know the law, would understand that a quit claim to lots in which Webster had no interest, conveyed nothing. If therefore, Webster had no transferable interest in the lots, on which there were no improvements—no deception being practised upon Wilson—the latter will be presumed to have given his note for the lots on which the improvements were located. He cannot now object to the payment of the note because these lots were not worth the amount he has stipulated to pay for them. There is no proof or pretence of any fraud or deception having been practised upon Wilson in the present case, and he must therefore perform bis promise in the shape in which it was made.

Judgment affirmed.