¶1The note was payable in specific articles, and the consideration was a piece of land conveyed by the plaintiff to the defendant, not by a quitclaim deed, but by a deed with warranty; and it appears that there was a judgment against the plaintiff, at the time he executed the conveyance, and that the land has since been sold under that judgment. The consideration for the note has, therefore, entirely failed; for the defendant has no title, it having been extinguished by the sale under the judgment. Here is a {total, not a partial, failure of consideration; for although the defendant has not yet been evicted by the purchaser under the sheriff’s sale, he is liable to be so, and will be responsible for the mesne profits. (Morgans. Richardson, 1 Camp. N. P. 40. note. Tye v. Gwynne, 2 Campb. Rep. 346. Barber v. Backus, Peake's Cases, 61, Phœnix Ins. Co. v. fiquet, 7 Johns. Rep. 383.)
¶2To allow a recovery in this case would lead to a circuity of action, for the defendant, on this failure of title, would be entitled immediately to recover back the money.
¶3The motion to set aside the nonsuit must, therefore, be denied.
¶4Motion denied.