Heath v. Newman , 19 Miss. 201 ( 1848 )

Mr. Justice Clayton

delivered the opinion of the court.

This case turns upon a principle, already decided more than once by this court. It is an attempt in an action on a promissory note, given for the purchase of a tract of land, to make defence because of a failure of consideration, in this, that the land had been subsequently sold under an execution issued on a judgment against the vendor, rendered before the purchase of the defendant. No eviction was shown.

The case in the court below turned on other points; the sheriff’s deed was excluded from the jury, because of objections to it. Yet we cannot overlook or disregard the settled rule, that in cases free from fraud, where the defendant has been put in possession under a deed with general warranty, nothing short of actual eviction constitutes a defence to an action on the note for the purchase-money. Hoy v. Taliaferro, 8 S. & M. 727; Duncan v. Lane, Ib. 744.

It is not shown in this case, whether the defendant was put in possession of the land, nor what were the covenants of the deed. But the plaintiff made out a prima facie case, by the production of the note; and we cannot say there was error in the judgment of the court below, unless the defendant had put enough in the record to prove that he was in a situation to insist on the defence.

The judgment is affirmed.