¶1The opinion of the court was delivered by
¶2Though the bill of exceptions in this case does not show to what decisions of the county court the defendants excepted, yet this, no doubt, was an inadvertence, and might be amended. We will, however, consider the questions raised on argument.
¶3The written contract of the payee of this note, made at *676the same time with the note, and parcel of the same transaction, will qualify and control the rights of the parties on the note. Both instruments must be taken as parts of one transaction. By the written contract the defendants were not to pay this note, unless there should prove to be a failure of title in Chittenden in the lands which he had mortgaged to the payee to secure the debt for which the note now in question was given as collateral security. It could in no way be necessary, in an action on the note, that the plaintiff should show a want of such title by the judgment of a court of competent jurisdiction. If there was a failure of title in Chittenden this note was to be obligatory on the defendants.
¶4All that could be necessary was, that it should appear on trial that there was a defect of title. This might as well be settled in the trial on the note as any other condition which was to affect the validity of a note.
¶5As the county court held that the burden of proof was on the plaintiff to show the want of title in Chittenden, (of which the defendants have no reason to complain,) the testimony of the town clerk was competent to show that Chittenden had no title of record, except what rested on the Stephen Pearl vendue.
¶6This w'ould seem the only way in which the plaintiff could proceed to establish the negative.
¶7The defendants rely upon the collector’s deed, as showing title under the Pearl vendue in Chittenden, without showing a compliance with the requisitions of the statute relative to sales of this description. The recitals in the deed are not prima facie evidence of such compliance. This has long been well settled. The fact that the deed may have been of long standing, can make no difference in a case where there never has been a possession under such pretended title. The county court, we think, were well warranted in holding that, prima facie, there was no title in Chittenden. The evidence that Chittenden had paid taxes, &c, on the land, could have been of no avail. It constituted no act of possession, and did not tend to prove a possessory title, and of course was properly excluded.
¶8The judgment of the county court is affirmed.