Knight v. Turner's Ex'r.

COLLIER, C. J. The pleas upon which the record affirms the cause was submitted to the jury, are — “ 1. Non assumpsit. 2. Failure of Consideration. 3. Fraudulent representation, by which the defendant was induced to make the purchase of plaintiff’s testator.” The form of the first plea is indicated by its title; but the most liberal construction that can be indulged in respect to the second and third, as they were received by the plaintiff, is, that they severally alledged such a state of facts as established in point of law a failure of the consideration for which the note was given, and a fraudulent representation by the testator in respect to the consideration, which induced the defendant to make the contract, and that the defendant was in a condition to defeat the the action., by showing such fraud. In this view it is perfectly 639 clear, that the pleas do not tolerate the admission of illegal evidence, and that no testimony was competent which does not tend to make out a legal defence, coming within the issues as we have“ supposed them to be framed. The question then is, does the evidence offered furnish a bar to the plaintiff’s right to recover, either in whole or in part. In Cullum v. The Branch Bank at Mobile, 4 Ala. Rep. 21, it was held, that where a contract for the sale of real estate has been executed by the acceptance of a conveyance by the purchaser, fraud does not constitute a defence at law in an action for the purchase money; but the remedy of the ven-dee is in equity. At an early day it was decided by our predecessors, that where the purchaser had taken possession and received a conveyance from the vendor, he could not resist the payment of the purchase money by proving that the latter made fraudulent representations as to his title. [1 Stew. Rep. 490.] This decision has never been departed from, but repeatedly recognized by us. In Dunn v. White & McCurdy, 1 Ala. R. N. S. 645, we determined that a partial failure of consideration wasjiot an available defence to an action for the purchase money of lands of which the purchaser retained the possession. And even in respect to personal property, we have decided that, if the. vendee does not rescind the contract upon discovering the vendor has committed a fraud, he cannot avoid the payment of the purchase money in toto — the deduction, 'if any, can only be to the extent of the injury which the vendee has sustained by- the fraud. [2 Ala. Rep. 181, 749; 3 Stewt. & P. Rep. 322.] This view of the law, as ascertained by our own adjudications, is conclusive to show, that the evidence offered by the defendant at the trial, is no answer to the action and could not reduce the plaintiff’s recovery below the amount of the note. If he has a remedy in any forum, a question which we need not now consider, it must be asserted in equity. The judgment is consequently affirmed.