Lattin v. Vail
New York Supreme Court
Demurrer to plea. The plaintiff declared on a promissory note for $17,82 dated 2d May, 1836, payable on demand. The declaration also contained the common counts.
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Demurrer to plea. The plaintiff declared on a promissory note for $17,82 dated 2d May, 1836, payable on demand. The declaration also contained the common counts. The defendants pleaded in bar of the action, that the note declared on was given in part consideration of certain real estate sold and conveyed by the plaintiff to two of the defendants, hy indenture bearing date 2d May, 1836, in which the plaintiff covenanted that the premises conveyed were free and clear of all incumbrances. The defendants then aver that at the time of the execution of the indenture, the premises conveyed were…
1Opinion of the Court
By the Court,
Bronson, J.
The plea is had. It only attempts to answer the count on the note, without touching the other counts; and yet it commences and concludes in bar of the whole action.
But the plea is bad in substance. The defendants’ counsel insist that it shows a total failure of the consideration for which the note was given; but in this they are mistaken. The title has not failed, nor have the de[189] fendants been disturbed in the enjoyment of the land. There is an outstanding incumbrance, which, if not extinguished by the plaintiff may at some future period operate to defeat the…
2Cited by8 opinions
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- Whitney v. LewisNew York Supreme Court · 1839
- Vielie v. OsgoodNew York Supreme Court · 1849
- Sweetman v. PrinceNew York Supreme Court · 1862
- Sanger v. ClevelandMassachusetts Supreme Judicial Court · 1813
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