Davis v. Bean , 114 Mass. 358 ( 1874 )

Wells, J.

The tax was a lien upon the land from the first day of May; and that lien constituted a breach of the covenant against incumbrances in the deed of May 4th, from the plaintiff to the defendant. Cochran v. Guild, 106 Mass. 29. Hill v. Bacon, 110 Mass. 387.

The notes in suit were given for the price of the same land. The defendant’s claim then grew out of the same transaction upon which the notes in suit were founded, and affected the consideration upon which they were given. He had a right therefore to set up, by way of recoupment, the amount he had been compelled to pay to relieve the land from the incumbrance. Sawyer v. Wiswell, 9 Allen, 39. Stacy v. Kemp, 97 Mass. 166, and cases cited. Carey v. Guillow, 105 Mass. 18.

This defence is set forth in the answer in an insufficient and defective manner. As the ruling of the court below, however, does not appear to have been made upon the pleadings, but upon the sufficiency of the facts offered to be proved, to constitute a defence to the action, the defendant ought not now to be deprived of an opportunity to make good his defence by such amendment of his answer as may be necessary.

"Upon the facts offered to be proved we are of opinion that there was a good defence to the action, to the extent of the amount paid by the defendant to discharge the lien existing upon the land as of a date prior to his deed.

The exceptions must be sustained; and the case will go to a new trial unless the plaintiff shall elect to remit so much of his verdict as shall be equal to the taxes paid and interest thereon. If he shall elect to remit, he may have judgment for the balance.

Exceptions sustained.