Rice v. Goddard ( 1833 )

Per Curiam.

This action is brought on a promissory note, for the benefit of an assignee, but it is subject to the same defence as if prosecuted for the benefit of the promisee. The note was given in consideration of the conveyance of land by deed with the usual covenants of seisin and warranty. The title to the land failed entirely ; and the question is, whether that want of title is an entire want of consideration for the note, so as to render it nudum pactum, or whether the covenants were of themselves a sufficient consideration to support the promise. It was decided by the court in Maine, in Lloyd v. Jewell, 1 Greenl. 360, that the covenants were a sufficient consideration. The decisions of that court are entitled to great respect; the opinion however in the case cited was grounded on what was considered to be the settled law of Massachusetts ; but though there have been dictums, (Fowler v. Shearer, 7 Mass. R. 19; Phelps v. Decker, 10 Mass. R. 279;) there has been no decision in this State, to that effect, and so the foundation of the opinion fails. The same subject has been before the courts of other States, and the decisions have uniformly been, that a total failure of title is a tota failure of the consideration. Frisbee v. Hoffnagle, 11 Johns. R. 50; M'Allister v. Reab, 4 Wendell, 483 ; Steinhauer v. Witman, 1 Serg. & Rawle, 447 ; Gray v. Handkinson, 1 Bay, 278 ; Bell v. Huggins, 1 Bay, 327 ; Chandler v. Marsh, 3 Vermont R. 162; Tillotson v. Grapes, 4 N. Hamp. R. 448. The promise is not made for a promise, but for the land ; the moving cause is the estate ; and if that fails to pass, the promise is a mere nudum pactum. It was objected that the rule of damages in an action on the covenant would be different from the consideration of the promise ; but in the case of a total failure of title, the amount of damages would be the same ; and it is just that a party should be allowed to show a total failure, in an action on the promise, instead ol being compelled to seek his remedy on the covenants. [See Dickinson v. Hall, ante, p. 217.]

Plaintiff nonsuit