¶1By the Court.
¶2delivering the opinion.
¶3The facts of this case are briefly these : Jesse Dismukes sold to Richard L. Harvey a tract of land, for which Harvey gave his note. Harvey sold the same land to Theophilus Williams, taking his note in payment. Williams’ note was transferred to Levin J. Steward by Harvey, who, as -well as Williams, had knowledge of Dismukes’ vendor’s lien upon, the land. Harvey made to Williams a warranty deed. This' action is brought by Stewart to recover this note of Williams, who resists the payment upon the ground that the consideration had failed on account of the outstanding lien upon land which has been decreed to be paid.
¶4Upon this state of facts, the Court charged the jury, that Williams must pay his note to Stewart and look to Harvey for. indemnity upon the warranty in his deed. The jury found for the defendant, and the Court granted a new trial, because the verdict was contrary to the charge of the Court. And to this decision Williams excepts.
¶5We cannot concur with the Court in the view which it took of the law of this ease. Stewart is not an innocent holder of this note; on the contrary, the proof is ample that he took it merely as collateral security for money which he had paid for Harvey, and with full knowledge of all the equities subsisting between all the parties. He occupied precisely the same position that Harvey would, had the suit been brought by him ; and in that event it would not be pretended that Williams would be compelled to pay the note to Harvey an.d be driven to a cross-action against Harvey, who has left the country insolvent. But he might defend the note on account of the failure of consideration occasioned by the outstanding encumbrance, to-wit: the vendor’s lien.
¶6Our conclusion, therefore, is that the verdict was in ac*212cordance with the law and the evidence, and that the new trial ought not to have been granted.
¶7Judgment reversed.