consideration partially failed, by reason that the goods sold were of an inferior quality, unless clear fraud in the sale be made out; and the courts refer the aggrieved party to a distinct and independent remedy. But if a title to a part of the chattels sold had totally failed, so as to defeat the object of the purchase, as if A. should sell to B. a pair of horses for carriage use, and the title to one of them should fail, it is evident from analogous cases, that the whole purchase might be held void even in a court of law. In case of a sale of several lots of real property at auction, the purchaser purchased three lots, and paid the deposit money, but the title to two of the lots failed; and Lord Kenyon ruled,a that it was one entire contract; and if the seller failed in making title to any one of the lots, the purchaser might rescind the contract and refuse to take the other lots. The same principle was advanced in the case of Judson v. Wass,b which was the purchase of several lots of land; and the purchaser was held to be entitled to have a perfect title according to contract, without any incumbrance, or he might disaffirm the sale, and recover, back his deposit.c a Chambers v. Griffiths, 1 Esp. Rep. 150. Phil. ed., and in 11 Johns. Rep. 525. There are conflicting cases on this point; but in the English law, the better opinion seems to be, that if a purchaser contracts for the entirety of an estate, and a good title can only be made to a part of it, the purchaser will not be compelled to take it. This was the decision in Roffey v. Shallcross, 4 Madd. Ch. Rep. 122. Dalby v. Pullen, 3 Simon's Rep. 29. In Cassamajor v. er's Sel. Ca. 510. 8 Conden. Ch. Rep. 516. S. C.) Brougham said, that the decision of Lord Kenyon, in Chambers v. Grif fiths, was not sound doctrine, and was contradicted by the cases of James v. Shore, 1 Starkie, 426, and Roots v. Dormer, 4 Barnw. & Adol. 77. He further said, that Lord Eldon, in the note to Roffey v. Shallcross carried the rule too far the other way. The principle laid down by Lord Brougham as the medium one was, that the purchaser was not to be let off from his contract for one lot, on the ground that the title to the other was bad unless it appeared from the circumstances, that the two lots were so connected that the purchaser would not have bought, except in the expectation of possessing both lots. If a party has entered into a contract by the fraud of the other party, (2.) On the subject of the claim to a completion of the purchase, or to the payment or return of the con471* sideration money, "in a case where the title or the essential qualities of part of the subject fail and there is no charge of fraud, the law does not seem to be clearly and precisely settled; and it is difficult to reconcile the cases, or make the law harmonize on this vexatious question. The rules on this branch of the law of sales are in constant discussion, and of great practical utility, and they ought to be distinctly understood. It would seem to be sound doctrine, that a substantial error between the parties concerning the subject matter of the contract, either as to the nature of the article, or as to the consideration, or as to the security intended, would destroy the consent requisite to its validity. The principles which govern the subject, as to defects in the quality or quantity of the thing sold, require a more extended examination; and they are the same in their application to sales of lands and chattels. In the case of a purchase of land, where the title in part fails, the court of chancery will decree a return of the purchase money, even after the purchase has been carried completely into execution, by the delivery of the deed and payment of the money, provided there had been he may, on discovering the fraud, and on the earliest notice, rescind the contract, and recover whatever he has advanced, on offering to do whatever be in his power to restore the other party to his former condition. Masson v. Bovet, 1 Denio, 69. ■ Thornton v. Kempster, 5 Taunt. Rep. 786. Several cases on the same subject, and in support of the doctrine in the text, are referred to in 1 Bell's Com. 242. 295, in notis, as having been decided in the Scotch courts. By the Civil Code of Louisiana, art. 2496-2519, a redhibitory action is provided for the avoidance of a sale, on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice. Where a fact in the sale of land is equally unknown to both parties, or each has equal information or the fact is doubtful from its own nature, and the parties have acted in good faith, equity will not interpose. McCobb v. Richardson, 24 Maine R. 82. a fraudulent misrepresentation as to the title. But if there be no ingredient of fraud, and the purchaser is not evicted, the insufficiency of the title is no ground for relief against a security given for the purchase money, or for rescinding the purchase, and claiming restitution of the money. The party is remitted to his remedies at law on his covenants to *insure the title.b In *472 Frisbie v. Hoffnagle, the purchaser, in a suit at law upon his note given to the vendor for the purchase money was allowed to show in his defence, in avoidance of the note, a total failure of title, notwithstanding he had taken a deed with full covenants, and had not been evicted. But the authority of that case and the doctrine of it, were much impaired by the supreme court in Maine, in a subsequent case, founded on like circumstances;d and they were afterwards in a degree restored, by the doubts thrown over the last decision by the supreme court of Massachusetts in Knapp v. Lee. The same defence Edwards v. M'Leary, Cooper's Eq. Rep. 308. Fenton v. Browne, 14' Ves. 144. b Abbott v. Allen, 2 Johns. Ch. Rep. 519. Barkhamsted, v. Case, 5 Conn. Rep. 528. Banks v. Walker before Ass. V. Ch. 2 Sandford's Ch. R. 344. In Brown v. Reeves, 19 Martin's Louis. Rep. 235, it was held, that so long as the buyer is in the peaceable and undisturbed possession of the thing sold, he cannot withhold payment, on the plea of a want of title in the vendor. By the civil law, also, a purchaser in possession could not rescind the contract, nor prosecute the vendor, on the ground of no title. Code, lib. 8. tit. 45. 1.3. Pothier Traité du Contrat de Vente, art. Prelim. 11 Johns. Rep. 50. d Lloyd v. Jewell, 1 Greenleaf's Rep. 352. See, also, Wrinkle v. Tyler, 15 Martin's Louis. Rep. 111. In Tallmadge v. Wallis, 25 Wendell, 117, the chancellor supposed that the supreme court of New-York, in Frisbie v. Hoffnagle, erred in the application of a correct principle to the case, because it did not appear that there was a total failure of consideration, as there was no eviction. It was conceded by him that on a total failure of title in a conveyance of land, and when no interest or possession passed, that fact was a good plea in bar of a suit on the bond given for the purchase money. 3 Pick. Rep. 452. But the case of Frisbie v. Hoffnagle, has been virtually overruled in Vibbard v. Johnson, 19 Johnson, 77, and is not now regarded as authority. See Whitney v. Lewis, 21 Wendell, 132. 134. was made to a promissory note in the case of Greenleaf v. Cook, and it was overruled on the ground that the title to the land, for the consideration of which the note was given had only partially failed; and it was said, that to make it a good defence in any case the failure of title must be total. This case at Washington is contrary to the defence set up and allowed, and to the principle established, in the case of Gray v. Handkinson ; but it seems to be supported by the case of Day v. Nix, where it was decided by the English court of C. B., that a partial failure of the consideration of a note was no defence, provided the quantum of damages arising upon the failure was not susceptible of definite computation.d "The *473 a 2 Wheaton, 13. b 1 Bay's Rep. 278. c9 Moore's Rep. 159. d It seems to be now settled in the New-York decisions, that on a partial failure of consideration on a sale, the defendant may recoupe his damages, on a breach of the plaintiff's contract of warranty. Reab v. McAllister, 8 Wendell, 109. Still v. Hall, 20 Id. 51. Batterman v. Pierce, 3 Hill, 171. The recoupment is not as a set-off, but allowed to avoid circuity of action, and it is founded on the plainest principles of justice. Goodwin v. Morse, 9 Metcalf, 279. Under the N. Y. R. S. vol. 2. 406, sec. 77, the defendant may recoupe in an action upon a sealed, as well as upon an unsealed instrument. He may avail himself by way of recoupment in case of fraud by misrepresentation on the part of the vendor. Van Eppes v. Harrison, 5 Hill N. Y. R. 63. The equitable doctrine of recoupment is of recent origin, and is well calculated to give litigation. It is a question whether evidence by way of recoupment can be received under the general issue without notice with the plea. The majority of the court held that it could not in Barber v. Rose, 5 Hill, N. Y. Rep. 76. In Sedgwick on the Measure of Damages, ch. 17, the more modern and liberal doctrine of set-off or recoupment of damages in reduction of the plaintiff's claim, is considered quite at large, and the numerous cases are ably reviewed and criticised. The doctrine of set-off, or the compensation of one debt for another came from the courts of equity, who were in possession of the doctrine long before the courts of law interfered, and it was first introduced with the statute of 5 Geo. II. The doctrine was borrowed from the doctrine of conpensation in the civil law, Dig. 16. 2, de compensationibus. The set off was confined at law to mutual debts but the statutes of bankrupts embraced mutual credits and which ex vi termine imported unliquidated damages, and this more liberal practice was adopted in chancery. Grove v. Dubois, cases are in opposition to each other, and they leave the question how far and to what extent, a failure of title will be a good defence, as between the original parties to an action for the consideration money on a contract of sale, in a state of painful uncertainty. I apprehend that in sales of land the technical rule remits the party back to his covenants in his deed; and if there be no ingredient of fraud in the case, and the party has not had the precaution to secure himself by covenants, he has no remedy for his money even on a failure of title. This is the strict English rule, both at law and in equity; and it applies equally to chattels, when the vendor sells without any averment of title, and without possession. In sales of chattels, the purchaser cannot resist payment in cases free from fraud, while the contract continues open, and he has possession. But in this country the rule has received very considerable relaxation. In respect to lands, the same rule has been considered to be the law in NewYork; while, on the other hand, in South Carolina, their courts of equity will allow a party suffering by the failure of title, in a case without warranty, to recover back 1 Term, 112. Ex parte Deeze, 1 Atk. 228. James v. Kynnier, 5 Vesey, 108. Duncan v. Lyon, 3 Johnson's Ch. Rep. 351. T. C. & D. Rail-Road Co. v. Rhodes, Alabama R. N. S. vol. 8. 206. In the case of Whitbeck v. Skinner, 7 Hill N. Y. R. 53, the defendant was admitted to set up by way of recoupment, an adverse claim under the same agreement to save needless suits. a The general rule in the English law is, that the partial failure of performance by one party to a contract, for which there may be a compensation in damages, does not authorize the other party to put an end to it. Franklin v. Miller, 4 Adolp. & Ellis, 599. Tanfield, Ch. Baron, in Roswell v. Vaughan, Cro. Jac. 196. Medina v. Stoughton, 1 Salk. Rep. 211. Bree v. Holbech, Doug. Rep. 654. Lord Alvanley, in Johnson v. Johnson, 3 Bos. & Pull. 170. Urmston v. Pate, cited in Sugden's Law of Vendors, 3d ed., 346, 347, and in 4 Cruise's Dig. 90, and in Cooper's Eq. Rep. 311. 1 Fonb. 366, n. Frost v. Raymond, 2 Caines' Rep. 188. Abbot v. Allen, 2 Johns. Ch. Rep. 523. Gouverneur v. Elmendorf, 5 Johns. Ch. Rep. 84. |