The opinion of the court ivas delivered by

The mortgage to the plaintiff, by the trustees of the Williamsport and Philadelphia Lumber Company, covered 19 tracts of land, containing 7302 acres and 48 perches. Upon proceedings on- this mortgage, in Lycoming county, all these lands were sold by the sheriff of that county to the plaintiff for $5779.19, leaving a balance of $1478.77 still due on the..mortgage, and a deed was made by the sheriff to the plaintiff, and duly acknowledged in open court.

The plaintiff, in pursuance of an agreement with the defendants, conveyed by deed to them all these lands, describing them as situate in Lycoming county, and designating the different tracts *148by tbe names of the warrantees, and the number of acres in each, for the consideration of $13,000. On the same day, the defendants executed a mortgage and judgment bond to the plaintiff to secure the payment of $6000, on the 1st August 1849, with interest from the 1st August 1848, being the balance of the purchase-money due at that time. The mortgage was recorded the 31st August 1848, in Lycoming county, and the judgment bond entered on the 15th October. Execution was issued on this judgment, which was subsequently stayed by the court, and the defendants let into a defence, upon the allegation that the title to portions of three of the tracts, conveyed to them by the plaintiff, and included in the mortgage, had failed, estimated to amount in the aggregate to about 1350 acres, it being alleged by the defendants that this portion of land is situate in Clinton county, and not in Lycoming county, and that consequently the plaintiff had no title to this part of the land, and could convey none to the defendants.

On the trial of the cause, the court admitted the testimony of a private surveyor to prove the dividing line between Clinton and Lycoming counties, the line never having been run or located by the commissioners appointed by the Act of Assembly, or by any other authorized person. This was clearly competent evidence to go to the jury, and there is therefore no error in the ruling of the court. The fourth error assigned falls under the same category, and the answers of the court specified in the fifth assignment of error would perhaps be correct, if the court were right in rejecting the evidence as stated in the third assignment of error; and this brings its to the real question in the cause.

The plaintiff intended to convey to the defendants a good title to the whole nineteen tracts, but failed to do so, because the sale by the sheriff did not include the portion of lands lying in Clinton county. To these tracts he had no claim except as mortgagee, and although this interest no doubt equitably passed, by the plaintiff’s deed to the defendants, yet it was not such a title as he either agreed or intended to convey. To meet therefore this alleged failure of title, the plaintiff offered to prove that the defendants, Day, Baldwin & Co., have purchased a good outstanding title for all that portion of the land in Clinton county, for the sum of $1.50 per acre, and have now (at the time of trial) a good title for the same, which offer was objected to by the defendants, because it is irrelevant and untrue, and the objection was sustained by the court. This was excepted to, and is assigned for error.

The defence of failure of consideration to a suit on a bond for purchase-money is entirely equitable, and depends for its success upon all the equities existing between the parties. If the plaintiff had purchased such an outstanding title, it would have enured to the benefit of the defendants by estoppel, and their title would *149have been complete, and the prior failure of title would have constituted no defence to the action on the bond. If then the defendants purchase this outstanding title, it becomes united to whatever interest they acquired by the conveyance from the plaintiff, and the plain equity is, that they should be allowed the full price paid for it, with interest and expenses, which should be deducted from the amount due on the bond. This would give the plaintiff all that he is equitably entitled to, and would do exact justice to the defendants. This is the true rule, and governs the present case : Loomis v. Bedel, 11 N. Hamp. Rep. 74; Spring v. Chase, 22 Maine 505; Lawler v. Collier, 19 Mo. 480; Leffingwell v. Elliott, 8 Pick. 455; 10 Pick. 204; Mellon’s Appeal, 8 Casey 126. The court therefore erred in rejecting the testimony.

Judgment reversed, and a venire de novo awarded.