i. con^_ defense,

I. The question involved in the demurrer to the second and fourth counts, is precisely the same. It is in substance, whether a party charged, by law or agreement, with a duty necessary to fix the liability of a third party to the person for whose benefit he is so charged, can, when sued for a default by such person, avail himself of any defense which would have been available to such third party, if he had been sued by such person. By the terms of the agreement between the plaintiff and Harrah, the plaintiff was bound to convey to Han-ah a title free from any incumbrance whatever. Unless such title was tendered, Harrah was under no obligations to receive it or pay the purchase price. If the deed had been duly tendered, and the money demanded, and Han-ah had refused to acoept or pay, it would have been a complete defense for him, in an action by the plaintiff against him, to show that there was an incumbrance upon the property by tax sale or judgment lien. *352Because, his agreement was to take a title free from any incumbrance, and the tender of such title was a condition precedent to his obligation to pay. If the facts averred in the second or fourth counts of the answer were true, there could have been no recovery from Harrah, and hence, although it was the duty of the defendant to use due diligence in releasing his trust deed, notifying Harrah of the election, tendering the deed and demanding the money, yet his failure to do so has resulted in no damage to the plaintiff, since there could have been no recovery, even if defendant had done his duty. It is, at best, but a damnum, absque injuria.

By his failure to use due diligence and discharge the duties devolved upon him by the law and his agreement, the defendant has taken upon himself the burden of proving the facts necessary to constitute a defense for Harrah, if he had been sued, after the defendant had faithfully done his duty. And he will have to prove such defense with as much particularity and completeness, as would have been required from Harrah himself, in a suit against him. In this it is analogous to the rule in actions on covenants of warranty. See Hamilton v. Catts, 4 Mass., 350; Greenvault v. Davis, 4 Hill (N. Y.), 646; Moore v. Vail, 17 Ill., 190; Rawle on Cov. for Title, 245, et seq.

But it is said by counsel for appellant, in argument, that it would be unjust to permit this defendant to shield himself from the consequences of his default, by availing himself of a defense existing in favor of Harrah, since it is not shown that Harrah himself would have set up such defense to an action, if defendant had done his duty. A fitting answer to this argument may be found in the suggestion, that it is not shown that Harrah, if now sued, would set up as a defense, the failure of defendant to give notice of election to sell, or to tender a deed and demand the money. The more sufficient legal answer, however, is, *353that in actions at law the measure of recovery is the legal right of the party, rather than the possibility or probability of human action. There was no' error in overruling the demurrer to these counts.

° II. The question made by the demurrer to the fifth count is quite a different one. What has been said as to the right of a party to avail himself of a defense existing primarily in favor of another, must be understood as limited to a defense strictly so called. A set-off is not a defense, but is in the nature of a cross action. To entitle a party to use a set-off, it must exist in favor of such party. • The defendant in this case does not show himself to be entitled to the claim upon which the set-off is based,-but shows affirmatively that it is the claim and property of Harrah. In such case, if defendant shall be allowed to avail himself of the benefit of the set-off, it will not extinguish the claim, nor exempt the plaintiff from his liability thereon to Harrah, the owner and holder of it; he could nob rely upon the recovery by way of set-off in this action, as a defense to an action on the same claim by Harrah. It would,'therefore, be as unjust as it is illegal, to allow this defendant to use as a set-off against the plaintiff’s demand, a claim to which he is not entitled, and which, if allowed to plaintiff, would nevertheless afford no protection or exemption to defendant from liability thereon, a second time to the owner of it.

The demurrer to the fifth count, which set up a set-off, held by Harrah at the time of the maturity of the agreement to purchase, was well taken, and should have been sustained. For this error the judgment of the District Court is

Reversed.