McHenry v. Yokum

Caton, C. J. This note was given for a piece of land which the plaintiff in error conveyed to the maker of the note by a full warranty deed, and it turns out that Mrs. Penny had a dower interest in the premises. Mrs. Penny was seventy years of age. The annual value of the dower was one hundred and twenty dollars, and the whole value of the dower was computed at three hundred and fifty dollars. And to this extent the defendant insisted the consideration of the note had failed; and we confess ourselves entirely unable to appreciate any reason why it is not so. He did not get all that he gave his note for, and to the value of that for which he gave the note and did not get, has the consideration failed. Had he got no title at all, then the whole consideration of the note had failed, and he was not bound to pay the notes and then rely upon his covenant of warranty to indemnify himself. This we have often decided, and the same principle has been applied where the consideration has partially failed. But the plaintiff thinks it impossible to compute the exact value of this dower interest, so as to determine the extent to which the consideration has failed. The proof clearly shows what was the annual value of the dower and the age of the doweress. From this it is as easy to compute the cash value of 'the dower, as it is the interest on a note of hand, from tables which have been formed with great care, from well established facts, and these tables are recognized and acted upon by all courts, at least in this country and in England, whenever occasion requires. We have no doubt the decision of the court was correct, and its judgment must be affirmed. Judgment affirmed.