¶1By the Court,
¶2The note was made in pursuance of the covenant to give security. This was a good consideration, and the defendants can make no question as to the consideration, without going back to the sealed contract, and impeaching the consideration upon which that was founded. This they could not do at the common law, and the statute only extends to two cases : first, where there is an “ action upon a sealed instrument,” and second, “ where a set-off is founded upon any sealed instrument.” 2 R. S. 406, § 77. This case is not within the letter of the statute; it is not an “ action upon a sealed instrument.” It may, however come within the equity of the statute; but then the difficulty is, that the defendants have not pleaded or given notice of this defence; and without doing so, the statute declares that the defence “ shall not be made.” § 78. I do not see how this difficulty can be got over.
¶3But had the evidence been received, it would not have made out a defence. The fact that the lot had been sold by the surveyor general after the making of the contract and the giving of the note, is of no importance-; it has no tendency to prove that the note was without consideration at the time it was made. Then how does the case stand ? Knowles had purchased the lot and taken a certificate from the state, which he had agreed to transfer to Fay. Fay agreed *628to release all .his interest in the lot—specifying what that interest was—to C. and L. Richards ; and for such release, they agreed to pay the money in question. There was no fraud ; not even an offer to show that either or both of the parties contracted under a- misapprehension in relation to the true state of the title. For aught that" appears, C. and L. Richards knew at the time that the land had been sold for taxes, and that the comptroller had a few days before conveyed to the state. They may have been willing to pay $150 for the original certificate of sale to Knowles, in the hope that the state would relinquish its title under the tax sale, on- payment of the arrearages and interest Favors of this kind have been granted by the. state to the owners of land sold for taxes. I do not see how the consideration can be impeached without showing fraud on the part of Fay, or at least, that C. and L. Richards supposed they were' purchasing something which they did not acquire.
¶4New trial denied.