The opinion of the court was delivered by

We are all satisfied that the annual payments *148of one hundred and thirty dollars each, can only be regarded as the stipulated compensation for the enjoyment of the property leased by the defendant, and, therefore, that the money, sought to be recovered back, was the compensation for the first year’s enjoyment, paid in advance. It is not essential to this view of the subject, that those payments should have been reserved by the name of rent.

The lease was executed September 30, 1839, and contained a reserved right to the defendant, to sell the land whenever she pleased; in which event, the plaintiff bound himself to surrender the possession to her grantee, on the 1st of October next after such sale. The defendant did sell and convey the land to a third person, on the same day of executing thedease to the plaintiff, viz : September 30,1839, and the plaintiff, of course, became bound to surrender the premises on the next day. There was, therefore, a clear failure of consideration for the one hundred and thirty dollars advanced, and the plaintiff was entittled to recover.

Judgment affirmed