McKnight v. Kellett

9 Ga. 532

• Court: Supreme Court of Georgia
• Decided: April 15, 1851
• Docket: No. 95
• Status: Published

Opinion

By the Court.

Warner J.

delivering the opinion.

That the Court erred in its charge to the Jury, we entertain no doubt; indeed, the counsel for the defendant in error concede that point in their argument, but insist, inasmuch as it appears on the face of the record, that the instrument sued on is under the hand and seal of the party, the defence cannot be allowed in a Court of Law. Whether failure of consideration can be pleaded to an instrument under seal in a Court of Law, in the absence of all fraud, we express no opinion; but we do hold, that the seal does not preclude an inquiry into the consideration, when it is alleged to be illegal or fraudulent.

[1.] In cases of fraud, (with the exception of fraud in obtaining a will,) Courts of Equity and Courts of Law have concurrent jurisdiction. Tripp & Slade vs. Lowe’s Adm’r, 2 Kelly, 305, and cases there cited. In this case, however, the defendant does not plead a total failure of consideration, on account of the fraudulent representations of the vendor, but only a partial failure of the consideration for which the bond was executed. The defendant obligated himself to pay thirty-two hundred and sixty dollars to the plaintiff for a plantation, took a deed of conveyance from the plaintiff, went into possession, and still continues in possession thereof, but insists that the consideration has partially failed, because the plaintiff falsely and fraudulently represented the plantation to be a healthy location, when it was not health}', which was well known to the plaintiff, and in consequence of its unhealthiness is not worth more than fifteen hundred dollars. The question is, can this defence be allowed upon the state of. facts presented by this record ?

£2.] By the Act of 26th December, 1836, the plea of partial failure of consideration, cannot be made available only in such cases, under such circumstances, and between such parties as would then admit and allow the plea of a total failure of consideration. Prince, 475. In the sale of a tract of land of which the purchaser has gone into possession under a deed of conveyance from the vendor, and there is no question as to the validity of the title, it is difficult to perceive how there can be a iotcd failure of the consideration. If the land is not worth as much as the vendor fraudulently represented it to be, still it is worth something, and in this case the plea of the defendant admits the land purchased to have been worth fifteen hundred dollars-. Inasmuch, therefore, as the defendant could not have pleaded a total failure of consideration to the suit on this contract, he cannot plead a partied failure of consideration, and the judgment of the Court below must be affirmed.