Hackett vs. Schad. ville, leased them to Francis Schad, for the term of ten years, to commence on the first of January succeeding the date of the lease, which was October 5th, 1864. Johnson died in December, 1864, before the commencement of the term. By the written contract Schad was allowed to build a small wooden house, with a cellar, and Johnson agreed to pay him, at the end of the term, what it might then be estimated as worth. Schad, claiming to have entered before Johnson's death, continued the possession until October, 1865, when, having in the meantime erected a frame building for a carriage-house, he, for the price of twenty-five hundred dollars, sold the residue of the term to Joseph Hackett, who then paid him one thousand dollars, and gave him his note for fifteen hundred dollars, and who, as assignee of the written lease, entered and occupied as a tenant until January, 1866, when, restitution being demanded by Mrs. Johnson, as owner of the estate in remainder, he surrendered, and bought from her the improvements and a portion of the ground for four thousand dollars. Then, insisting that the consideration had wholly failed, he refused to pay Schad the note of fifteen hundred dollars, and claimed restitution of the one thousand dollars he had paid him. In this action on that note, issues on the consideration and a counter-claim for the one thousand dollars having been submitted to the judge for trial, he adjudged against Hackett the full amount of the note, with interest and costs. As appellant, Hackett asks the reversal of that judgment. It does not appear that Schad's entry was either tortious or continued without the knowledge and implied consent of Mrs. Johnson; and he may not, therefore, be responsible to her for rent; nor, without evidence, can we presume that Hackett's entry, as sub-lessee, was Hackett vs. Schad. against her will. But no reason appears why she was estopped to take possession whenever she chose to demand restitution as reversioner, and when she did so, the term expired without the fault, and against the will, of the appellant, and thus, to a great extent, the consideration for his purchase of the lease has failed. But the failure does not seem to be total. To the extent of the value of the possession, for about three months, without apparent liability, and of his contingent right to pay for the house built without objection, there was some valuable consideration. But, while the circuit court did not err in deciding that there was not a total failure of consideration for the note, it erred in not ascertaining the amount of the partial failure, and, to that extent, exonerating the appellant. Although a partial failure of consideration was, before the adoption of the Code of Practice, not pleadable to an action on a note, yet it might have been remediable in equity. The Code requires all defenses, equitable as well as legal, to be pleaded to an action at law; and an equitable right, thus available, may be lost unless thus litigated. Consequently, whenever the court saw that there was a partial, and only partial, failure of consideration, it ought to have transferred the case to the equity side of the docket, and, by a commissioner or otherwise, have ascertained the extent of the failure, and given credit for it in the judgment. Moreover, to end in one suit this controversy, as to all persons who are immediately, or may be consequently, interested in it, Schad and the lessor's widow, and also his representatives, ought to be made parties; and then, without any other litigation, Schad's claim for damages against his lessor's estate; the widow's right to rents; the appellant's right on his counter-claim, and to other relief, Ireland vs. Berryman. for want of consideration; and the question, also, whether his purchase of the house and some of the ground, for much less than their value, was intended by the parties as an adjustment of all claim to relief for failure of consideration, may all be at once satisfactorily and finally adjusted. This is, therefore, peculiarly and eminently a case for equitable jurisdiction, and should not be concluded by a court of law between the present parties. Wherefore, the judgment is reversed, and the cause remanded for further proceedings as herein indicated, and for a more comprehensive and quieting decree. CASE 90-PETITION EQUITY-MAY 26. Ireland vs. Berryman. APPEAL FROM OWEN CIRCUIT COURT. 1. M. held the title bond of I. and F. for a tract of land, for the purchase of which he owed two notes, with lien upon the land. B. held one note, I. and F. held the other. In lieu of the latter note, M. executed to I. and F. separate notes, with personal security to F. I. obtained judgment on his note, and had execution thereon in the officer's hands, when I. and F. made and acknowledged a deed to M. for the land in consideration of the amount of I's. judgment, which they acknowledged in the deed was fully paid. I., being county court clerk, recorded the deed the same day it was made, and had the land levied upon and sold to satisfy his execution, and became the purchaser of the land. B. filed his petition, setting out the facts, claiming a prior lien, and alleging that the making of the deed was a fraud upon his rights. Held-That the making of the deed was a fraud upon B.'s rights, and could, in no possible view, affect his lien as between the original parties; but as I. and F. had voluntarily made the deed without B.'s knowledge or consent, it is binding on them, and had Ireland vs. Berryman. the legal effect to waive all liens which they held as vendors. The only lien I. then held was his execution lien; and like all other execution creditors, this lien was subordinate to B.'s vendor's lien. B. then became the holder of the prior lien, being the only vendor's A lien, and would be prior to I.'s execution lien. 2. A judgment of the lower court, which is manifestly right, though given for a wrong or insufficient reason, will be affirmed. JUDGE WILLIAMS DELIVERED THE OPINION OF THE COURT: There is a class of agreed and disputed facts, each, in this case; of the first, are, that Thos. A. Ireland and W. J. Ford sold the land to Wm. Thornberry, who paid them two thousand four hundred dollars, and executed his notes for the remainder of the purchase price. Afterwards, Thornberry sold the land to Riley, who paid nothing, but executed his several notes for the purchase price, and Thornberry assigned to him Ireland and Ford's title bond. Two of these notes were assigned by Thornberry to Baer, who again assigned them, and, after passing by several assignments, finally came to Berryman, as assignee. Riley not being able to pay for the land, by agreement and participation of all the parties concerned, it was sold to Thos. A. Moss, as trustee for his parent, for a sum less than Riley was to give Thornberry. Moss then executed his notes to Thornberry for the amount due from him to Ireland and Ford, and for the remainder in another note, who immediately as Ireland vs. Berryman. signed it to Berryman as part payment for the Riley notes held by him; and for the remainder, Berryman took Riley's note. Thornberry also assigned Moss's note to his vendors, Ford and Ireland. Berryman claims, but which is disputed, that, by this arrangement, he was to have a prior lien for the amount of the Moss note so assigned him. After these transactions, Moss gave to Ireland and Ford separate notes for that portion due each, of his original note executed to Thornberry, and assigned to them jointly, and gave to Ford personal security. Ireland sued and obtained judgment on his note, and had execution in the officer's hands, when, August 1, 1862, he and Ford made and acknowledged to Moss a deed, in consideration, as recited, of one thousand three hundred and fourteen dollars and fifteen cents, the amount of his judgment and acknowledged payment in full of the consideration; and Ireland, being the county clerk, had the deed recorded, the same day he had the land levied on by the execution, and became the purchaser himself at the sale. He very soon thereafter joined the Confederate army and left the State. Berryman filed his petition setting out the facts, claiming a prior lien, and alleging that the making said deed was a fraud upon his rights. Ireland was proceeded against as an absent defendant. The court rendered a judgment subjecting the land to Berryman's debt on Moss; but Ireland having returned, was permitted to file his answer and open the judgment. The case then proceeded to judgment again, and the court affirmed the former judgment, and Ireland seeks a reversal. There is much controversy and pleading and evidence as to whether Berryman was to have the prior lien in the arrangement by which the land was sold to Moss, most of which we deem immaterial; because Berryman, at least, |