Inhabitants of Barkhamsted v. Case

Hosmer, Ch. J. The ground on which the decree in this case was rendered, by the county court, undoubtedly was, that the promissory note executed to Barkhamsted, was totally without consideration, by reason of the non-existence of the title to the land sold; and therefore, that such note was fraudulent and void. If there was no fraud and no covenant to secure the title, the purchaser has no remedy for his money, even on failure of title, either at law or in equity. Abbott v. Allen, 2 Johns. Chan. Rep. 519. Chesterman v. Gardner, 5 Johns. Chan. Rep. 29. 2 Swift’s Dig. 45. The grantee of land, if he take no covenants, and there be no fraud in the sale, has assumed on himself the [531] risk of title : and any security given by him for the purchase money, is on a legal consideration. The bill of the plaintiff before the county court charged no fraud, without which allegation, fraud was not in issue; (James v. McKernon, 6 Johns. Rep. 543. 559. Gouverneur v. Elmendorf, 5 Johns. Chan. Rep. 79. 83.) and from the facts exhibited in the finding of the court, the entire case seems to have been, that Barkhamsted believed and affirmed, that they had title, when in fact they had, none, and Case, confiding in the same, purchased the land in question, and gave in payment the note now in suit. The maxim of caveat emptor peculiarly applies in this case. The defendant in error should have taken proper covenants to guaranty the title. In a matter embracing neither fraud nor covenant, the purchaser acts at his own risk, and voluntarily foregoes any remedy, if the title should fail. In all events, the county court was authorized to grant the prayer of the plaintiff’s bill, in the manner that they did only on the basis of total fraud in the consideration. Now, if such fraud existed, there was adequate remedy at law by defence against the note in suit. The point is too clear to admit of a question: and was expressly decided, by this Court, in Moore v. Ellsworth, 3 Conn. Rep. 483 Peters, Brainard and Britol, Js. were of the same opinion. Judgment to be reversed.