1 Story on Sales, § 204, 205, 423, and cases cited; Johnson v. Johnson, 3 Bos. & Pul. 162; Casamajor v. Strode, Coop. t. Brougham, 510; Roffey v. Shallcross, 4 Madd. 227.
2 Tye v. Gwynne, 2 Camp. 346; Moggridge v. Jones, 14 East, 486; Morgan v. Richardson, 1 Camp. 40; Parish v. Stone, 14 Pick. 209; Grant v. Welchman, 16 East, 207; Perley v. Balch, 23 Pick. 283; Shepherd v. Temple, 3 N. H. 455; Beecker v. Vrooman, 13 Johns. 302; Day v. Nix, 9 Moore, 159.
3 See 2 Kent, Comm. 472, as to the case of real property.
4 2 Stark. Evid. 97, 280, 640; 3 Stark. Evid. 176; Hayward v. Leonard, 7 Pick. 181; Tye v. Gwynne, 2 Camp. 346; Parish v. Stone, 14 Pick. 210; Mondel v. Steel, 8 M. & W. 858; Bac. Abr. Rent (L.).
5 2 Kent, Comm. 470; Farrer v. Nightingal, 2 Esp. 639; Graham v. Oliver, 3 Beav. 124; Hill v. Buckley, 17 Ves. 394; Paton v. Rogers, 1 Ves. & B. 351; Story on Sales, § 423, and cases cited.
6 Bliss v. Negus, 8 Mass. 51; Pikardv. Cottels, Yelv. 56; Crisp v. Gamel, Cro. Jac. 128; Bruer v. Southwell, Style, 58; Shann v. Bilby, Style, 280; Best©. Jolly, 1 Sid. 38; Onslow, N. P. 145; 1 Lill. Abr. 297; Com. Dig. Action on the Case, Assumpsit (B. 13); Mayfield v. Wadsley, 3 B. & C. 361; Wood v. Benson, 2 Cr. & J. 94.
1 Com. Dig. Action on the Case, Assumpsit (B. 13). An assignment of a title to dower would probably be now held to be valid in equity, and, therefore, a sufficient consideration. See 1 Story, Eq. Jur. § 624, etc, ch. 12. But this does not impugn the principle of the case.
2 Featherston v. Hutchinson, Cro. Eliz. 199; Morris v. Chapman, T. Jones, 24; Bridge v. Cage, Cro. Jac. 103; Crawford v. Morrell, 8 Johns. 253; Com. Dig. Covenant (F.); Story on Bills, § 187; Waite v. Jones, 1 Bing. N. C. 662.
3 Scott v. Gillmore, 3 Taunt. 226; Bliss v. Negus, 8 Mass. 50; Shackell v. Rosier, 2 Bing. N. C. 646; s. c. 3 Scott, 59.
4 Palmer v. Ward, 6 Gray, 340.
5 Lewis v. Davison, 4 M. & W. 654; Stevens v. Webb, 7 C. & P. 60; Waite v. Jones, 1 Bing. N. C. 656; s. c. 5 Bing. N. C. 341; Shackell v. Rosier, 2 Bing. N. C. 646; Story on Sales, §504; ante, § 431.
6 Ibid.; Lewis v. Davison, 4 M. & W. 654; Waite v. Jones, 1 Bing. N. C. 656; s. c. 5 Bing. N. C. 341.
8 2 Black. Comm. 446; 1 Fonbl. Eq. B. 1, ch. 5, § 1, note a; Sharington
Union, either local custom or statute has given validity to such a defence.1 Indeed, mere inadequacy of consideration, where it is not of so gross a nature as to indicate fraud on the one side, or utter incompetency on the other, will not, of itself, invalidate an agreement, either in law or in equity.2 But a total failure of the consideration constitutes a good defence generally to an action on a sealed as well as an unsealed instrument; for if the foundation of the covenant fail, the covenant fails also.3 Thus, it will be a good defence to an action by the lessor for rent, that the lessee had been evicted from the premises, either by the lessor, or by any person having a paramount title.4
§ 609. The rule applies, also, to cases of an eviction of the lessee from part of the premises by the lessor, the rent not being apportionable; but if the eviction be by a stranger, with title paramount, the eviction is only a discharge pro tanto, because the rent is in such case apportionable.5 But an eviction from a part of the land by the lessor is no defence to an action on any other covenant, as to repair the premises, which the v. Strotton, Plowd. 308; 1 Powell on Cont. 341, 342; Borell v. Dann, 2 Hare, 440.
1 Case v. Boughton, 11 Wend. 106; Swift v. Hawkins, 1 Dall. 17.
2 1 Story, Eq. Jur. § 245, 246; Borell v. Dann, 2 Hare, 440, 450; Follett v. Rose, 3 McLean, 332; Robinson v. Schly, 6 Ga. 515. The doctrine concerning inadequacy of consideration is thus stated and illustrated by Mr. Justice Perkins, in Schnell v. Nell, 17 Ind. 29 (1861): u The consideration of one cent will not support the promise of Schnell. It is true that, as a general proposition, inadequacy of consideration will not vitiate an agreement. Baker v. Roberts, 14 Ind. 552. But this doctrine does not apply to a mere exchange of sums of money, of coins whose value is exactly fixed, but to the exchange of something of, in itself, indeterminate value for money, or perhaps for some other thing of indeterminate value. In this case, had the one cent mentioned been some particular one cent, -a family piece, or ancient, remarkable coin, possessing an indeterminate value, extrinsic from its simple money value, - a different view might be taken." See § 550.
3 Com. Dig. Covenant (F.J; Alsope v. Sytwell, Yelv. 18; ante, § 480.
4 Salmon v. Smith, 1 Saund. 204, note 2; Jordan v. Twells, Cas. t. Hard. 161; Dorrel v. Andrews, Hob. 190, and note by Williams; Neale v. Mackenzie, 1 M. & W. 747; Hayne v. Maltby, 3 T. R. 438, 442; Bac. Abr. Rent (L.) (M.); Com. Dig. Covenant (F.).
5 Bac. Abr. Rent (L.) (M.); Newton v. Allin, 1 Q. B. 518.
lessee can still perform;1 and the reason of this difference seems to be, that the rent is founded upon an actual enjoyment of the land, and, as it were, issues out of it.2 So, if a lease be agreed on, and the lessee execute his part, and the lessor do not execute his part, whereby there is no lease, the covenants in the. indenture sealed by the lessee are void. So, also, is a bond given for the performance of the covenant. Indeed, wherever the consideration for the covenants in a sealed instrument wholly fails, or is wholly void, the covenants are also void.3 But a conveyance made to a third person, in satisfaction of illegal claims taken up by such third person, at the request of the grantor, is held to have been made upon a valid consideration.4
1 Newton v. Allin, 1 Q. B. 518.
2 Bac. Abr. Rent (L.).
3 Com. Dig. Covenant (F.), and cases there cited. See § 556, et seq.
4 Wright v. Hughes, 13 Ind. 109; Butler v. Edgerton, 15 Ind. 15; Butler v. Myer, 17 Ind. 77 (1861).