¶1The opinion of the Court was drawn up by
¶2— The attachment and subsequent levies on the land conveyed were incumbrances upon the title, which was conveyed to the grantee subject to them. . The _ grantee had acquired the legal right to pay off those incumbrances, and by doing so his title would have become perfect. If the effect may have been, that through neglect to redeem, the title of the grantee has been destroyed, that is a result, which may often happen from a like cause, when the title is more or less incumbered at the time of conveyance. It did not appear from the testimony proposed to be introduced, whether the lands were or were not appraised at their full yalue. A legal presumption does not arise, that the appraisal was for the full value, for the statute contemplates a still subsisting value in the right to redeem, which may be the subject of attachment and sale. Nor did the proposed testimony shew, whether the grantee had or had not received the rents or profits of the land from the time of conveyance to the periods of levy. And if any were received, he ivas entitled to retain them; for no other person could call upon him to account for them. The burden of proof was upon him. The ruling of the presiding Judge was therefore correct, “ that the facts aforesaid, offered to be proved by the defendant, were insufficient to shew a total failure of the consideration of said note.” And if he may be considered by the other part of the ruling as deciding, that a partial failure of the title would not constitute a defence to the *155note pro tanto, this Court is not prepared to deny the accuracy of that position, and to decide, that the law is otherwise. Such ruling may be considered as authorized by the received law in England, in the Supreme Court of the United States, in Massachsetts, in Maine, and in other States of the Union. And although Courts of the highest character in several of the other States have come to a different conclusion ; there is little reason to change our own rule, until by doing so there may be hope of greater uniformity and symmetry in the law on this point than present appearances indicate. And so great is 'the value of having a certain rule, to which persons become accustomed, and to which they conform in the transaction of their business, that, when once established, it should not be changed, until it is made to appear to be clearly erroneous, or to be doubtful and more, productive of mischief, than a change and the establishment of a new rulé.
¶3Exceptions overruled.