This action is brought to recover the amount of a promissory note for $525, executed by defendant to one Crenshaw, and by him assigned to plaintiff. The plaintiff prevailed in the trial court.

The principal consideration for the note was the assignment by Crenshaw to defendant of a one-fourth interest in a mining lease of fifteen years in certain lands. The words of the assignment were, “I hereby sell and transfer to R. L. Fink my one-fourth interest in a certain lease, dated, ’ ’ etc. The defendant pleaded failure of consideration except the sum of $25 for some distinct articles of personal property included in the assignment. The ground for the claim of failure of consideration is that it is said the lease was of no avail; worthless, or did not exist, as it was forfeited to the lessors.

There is much said by the respective parties as to whether, in the assignment of the lease to defendant, there was an implied warranty of title; and whether the lease should be regarded as real estate or personal property. The instructions dealt with these questions. But in the view we take of the case, as it is fixed by the undisputed testimony, those questions are of no importance. The facts are these: The lease was for mining lead and zinc ore on certain lands, and contained certain provisions looking to forfeiture in case the lessee failed to do certain work at times and in manner stated. The defendant was, before the assignment to him, Crenshaw’s superintendent,on the ■ground.

*260On May 26 the defendant was notified in writing by the lessors that the provisions of the lease were not being complied with and that unless they were within ten days, the lease would be declared to be forfeited. A few days afterwards the bargain for the assignment of the lease to defendant was made, and on June 5, the written assignment was sent to Crenshaw by defendant for his signature and the former signed and returned it by mail to defendant. On June 7 (the ten days having expired), the lessors notified defendant that the lease was forfeited.

Prom these facts it appears that the lease was a subsisting and valuable right existing in Crenshaw when he assigned it to defendant. It had not been forfeited; only a notice had been given that unless its provisions as to work were complied with, it would be. In that situation defendant bargained for and took the assignment in question, and gave for it the note in suit. He was the party in charge of the mine as superintendent. Pie knew the condition of the lease, as he himself had received the notice aforesaid, and with this knowledge he took the assignment. Undoubtedly he bought it as it was. There was no warranty that the forfeiture would not be declared, and in such circumstances none can be implied. The court’s first instruction for plaintiff was, to all practical intent, a peremptory direction to find for plaintiff, and as no other result could follow from the evidence, it was right. The judgment will therefore be affirmed.