Dorr v. Munsell , 13 Johns. 430 ( 1816 )

Spencer, J.,

delivered the opinion of the court. The plea demurred to is bad. It sets up a fraudulent representation of the plaintiff’s patent right; an.d, in substance, it is a denial of any consideration for the botfd. At law, the defendant cannot avoid a solemn deed on the ground of a want of consideration. That inquiry is precluded by the very nature of the instrument. The case of Vroman v. Phelps, (2 Johns. Rep. 177.,) is directly in point, that a fraudulent representation of the quality and value of the thing sold forms no defence in a suit on a specialty.

In some of the elementary writers, it is stated that fraud may be given in evidence under the plea of non est factum. This must be confined to cases where the fraud relates to the execution of the instrument, as if a deed be fraudulently mis-read, and is executed under that imposition ; or where there is a fraudulent substitution of one deed for another, and the party’s signature is obtained to a deed which he did not intend to execute. The case of Hayne v. Maltby, (3 Term. Rep. 440.,) does not apply. There, the suit was on the covenant which, was' the’ instrument’of the fraud, and Lord Kenyon evidently meant to exclude the idea that the defence would-have been admitted, had therebeen a covenant- to pay a sum in gross.

Judgment for the plaintiff*