McDaniel v. Hooks

30 Ga. 981

• Court: Supreme Court of Georgia
• Decided: June 15, 1860
• Status: Published

Opinion

By the Court.

Stephens, J.,

delivering the opinion.

In this case, an administrator sued on a note which was given to him for land which he, as administrator, had sold as the property of his intestate. The evidence offered in defense against the note was, in substance, this: The deceased not having paid the entire purchase money for the land, died leaving his unpaid note for the balance, constituting a vendor’s lien on the land. The administrator when about to sell the land, -which he must have sold, subject to the vendor’s lien, or cleared it from the lien by paying up the remainder of the purchase money due by his intestate, agreed with the defendant to accept that outstanding note of the intestate as a set-off- against the price which the defendant might give for the land at the administrator’s sale which was about to take "place, if the defendant would buy the land. He did buy it, and in giving his note for the price, had it understood that the other note which had a vendor’s lien was to be allowed as a set-off. The defense asked that this set-off might be allowed, and that the evidence which proved it, might be admitted. We think the defense was a good one, and that the Judge was right in granting a new trial, because the evidence had been rejected. The substance of the administrator’s promise was to clear the land of that vendor’s lien, and the clearing of the lien was a part of the consideration of the note which the defendant gave. Now, when he refuses to clear the lien by taking up the note which constitutes it, there is a partial failure of consideration.

■ Judgment affirmed.