#### *Payne vs. Cabell.*

Chancery.

Case 30.

Appeal from the Todd circuit; Henry P. Broadnax, Judge.

*Vendor and Vendee. Rescission of contracts. Equity. Deeds. Onus prohandi.*

Statement.

C-rounds of Payne’s complaint.

April 28.

Chief Justice BtbB,

delivered the Opinion of the Court.

On the 10th of October, 1818, Cabell sold and conveyed to Payne, by deed of general warranty, three hundred and eighty-one acres of land, lying in the county of Christian, on Little river, in consideration of six thousand eight hundred and fifty-eight dollars — being at the price of eighteen dollars per acre, and delivered possession.

In June, 1822, Payne *exhibited*his bill, and obtained an injunction against a judgment at law for about 01,200, besides interest and costs, the balance due on a bond given for the last payment of about $1,600.

The grounds of complaint in this bill are, that Ca-bell has removed to Missouri, and is insolvent; that he has discovered that the claims sold to him are conflicted with by Joseph Williams’, to the extent of about five acres; also, by one of James C. Cravens, of forty-two acres; and that to the tract of 67 acres, part of the 381, so sold, the vendor derived his title by purchase under the patent of Nicholas Hawkins; that Jane and Joseph Hawkins had conveyed, being the widow and son of the patentee, but that Jesse and Enoch Hawkins, two of the heirs of the patentee, had not conveyed — they being infants. To this bill Payne, Williams and Cravens, are made parties, anti the claims of Williams and Cravens, are alleged to be superior to that of Cabell, and the defendants are required-to litigate and settle these questions. By an amended bill, the complainant suggested, that Thomas Hays held a conflicting claim of *19914 1-2 acres; and that Calvin Boals held a conflicting claim of 9 1-2 acres, and their claims are alleged to be superior to that of Cabell, so sold and ed; and they are made defendants to litigate and settle those questions. The complainant in part of the purchase, had assigned to Cabell, a replevin bond on William F. Tegarden and sureties, for $2,624. Tegarden had injoined that debt for alleged defect in the title to the íand which he had purchased; and Payne, alleging he expected to dissolve Tegarden’s injunction, obtained an injunction against Cabell, to restrain him from collecting the amount of Tegarden, by virtue of Payne’s assignment.

Cabell’s an-j-^th^objeetions to the tide,

Boals’ *die*Maimer,

The complainant also charges that two of Cabell’s surveys conflict with each other, five acres; that is to say, Hatfield’s of 80 acres, and Robert Harrison’s of 42 acres; that by consequence, the quantity sold is lessened by five acres. He farther alleges, Hatfield’s survey, instead of 80 acres, holds out more than 100 acres; but he cannot find any conveyance from Hatfield to Hawkins, of whom Cabell bought this; that these interferences and defects of title, had spoiled the tract, and he prays the contract to be rescinded.

Cabell, by his answer, denies his insolvency, and every matter of complaint alleged, except the infancy of Jesse and Enoch Hawkins, at the date of his conveyance to Payne; but of that defect he alleges that Payne was informed, and agreed to risk the acquisition of the title from them at full age, according to abond their friends had given, covenanting, that they should convey. But to obviate that, he produces their deed after their full age, dated 5th Dec. 3822, duly acknowledged, and recorded in Christian, on the 28th December, 3 822; the youngest having, according *to*the proof, arrived at full age in May preceding. He also produces another deed from himself to Payne, duly acknowledged and recorded in Christian county, of the 6th Aprils 1823.

The defendant Boals, by liis answer, denies that his small interference was ever intended to be asserted by him as the superior claim; and he disclaims all title and claim under it.

*200Answers.

Injunctions dissolved, without damages.

Objections to Cabell’s title alleged by Payne, found to be groundless.

Alleged deficiency in quantity found without foundation.

The other defendants, Cravens, Williams and Hays, answer, and allege their entries by virtue of head-right certificates, to be superior to the claim of Cabell, so sold to Payne.

The court dissolved the injunctions, but gave no damages, and dismissed the bill with costs, and Payne appealed.

The interferences of the adversary conflicting claims, alleged by the bill, are not traced to any foundation which can create a probability, or even a suspicion, that they can disturb the claim and possession so sold and transferred by Cabell to Payne. The adversary claimants themselves, with Payne to assist them, have not produced any adversary rights, which in law or in equity, wear a semblance of validity and superiority over those of Cabell. Grants, or copies of grants from the land office, or other documents upon which rights and interests to lands are adjudicated, are not produced in evidence, so as to enable this court to pronounce such asserted adversary claims conflicting with those sold to Payne, to be valid in law or in equity. The deficiency of documentary evidence, and of other testimony to sustain these asserted adversary rights, is so great, as that the title of Cabell, which Payne has acknowledged, by accepting the deed and possession, cannot be said to have been thrown under a suspicion, to be inferior to those of Williams, Cravens and Hays.

The defect for want of conveyances from Jesse and Enoch Hawkins, has been obviated by their conveyances after they attained their ages of maturity.

The complainant argumentatively asserts, that because the survey of Robert Harrison, *of 42 acres,*and the part of the claim of Hatfield, as conveyed to him by Cabell, clash with each other to the extent of five acres; that, therefore, there is a deficiency of quantity thence arising, and claims an allowance *for*the deficiency of that five acres. In one breath he alleges.this conflict to the extent of five acres between Harrison and Hatfield’s surveys, the one for *42*acres, the other for 80 acres; and thus argues *201luid claims, as for a diminution of five acres in the quantity sold; and immediately, *in*eademflatu, he asserts a large surplus in Hatfield’s survey, to magnify the injury he has sustained by defect of title, and the conflict of James C. Cravens’ claim with the surveys of Harrison and Hatfield. But the error of the argumentative deficiency thus attempted to be imposed upon the court, is detected by inspection of the deed to Payne, and the abuttals of tne several parcels, and their respective quantities as reported by the surveyor, as shewn by the complainant. The deed describes four several parcels by their abuttals. The quantity of but one parcel is given in the deed; that is of the extreme northern parcel which binds on the lines of Hatfield and Harrison; it is a part of Jeremiah Cravens’ *300*acres, and part of Robert Cravens’ 150; and this parcel is called fifty-five acres in the deed, which with the boundaries of the other three parcels, are stated to contain three hundred and eighty one acres — the quantity sold, and to be paid for. Now, the four parcels so conveyed, are thus reported by the surveyor: the original survey of 230 acres for the Franklin academy; this is the southern boundary. The northern parcel of fifty-five acres; Robert Harrison’s survey of forty-two acres, and the parcel, part of Margaret Gray’s and Hatfield’s surveys, sixty-seven acres; these, if there had been no. lapping between the interior abuttals, *would*have contained three hundred and ninety-four acres, instead of three hundred and eighty one. Therefore, the complainant could not make a direct and positive allegation, that the exterior lines did not include three hundred and eighty-one acres, nor call upon the-surveyor to report whether there was a deficiency or a surplus, but claimed a deficiency as to five acres, by way of inference and deduction, from part of the facts. There is no evidence that the quantity conveyed falls short of the quantity sold and calculated at eighteen dollars per acre.

The insolvency of Cabell is denied, not proved, but repelled by the evidence. His removal to Missouri was contemplated at the time of the contract, and known to the complainant.

*202Vendee who accepts the title is presumed to have inspected the title and received the d< eds; and therefore, to resist the pajment of the price, mast prove the *defect of*the title, besides shewing be has no remedy at law.

Decree of affirmance.

Triplett, for appellant; *Mayes,*for appellee.

The vendee has accepted the deed, he lias received possession, he has enjoyed it without disturbance; he alone has stirred up adversary claims, and when so stirred, neither himself nor the alleged claimants, have been able to make good their claims. A vendee will not bo compelled to accept a conveyance under an executory contract, until the vendor exhibits a regularly deduced title, free *from*incumbrance, and apparently sufficient to assure the estate according to the contract. But a vendee who has accepted a deed, and the possession, with a covenant of warranty, is presumed to have inspected the derivations of title, and to have been satisfied with assurances; and to have received the title papers. After such acceptance of the possession, and deed, and covenant of warranty, a vendee, before eviction or disturbance, cannot receive the aid of a court of equity, to assist him to withhold the purchase money, or rescind the contract, hut by taking on himself the burden of showing a defect in the title of the vendor, of a latent character, and of proving superior, outstanding, subsisting adversary rights and interests. This task the complainant did undertake, but has wholly foiled of the performance.

It seems to this court, that the complainant has *made out no*case which requires the interposition of a court of equity, to relieve him from the payment of his purchase, or to rescind the contract; but that he should be left to seek his redress upon the covenant of warranty, in case of eviction, if such event shall ever happen; of which, however, the complainant has not shewn any probability. There is no error in the decree, to the prejudice of the appellant. It is, therefore, ordered and decreed, that the said decree of the circuit court be affirmed.

Appellee to he paid his costs.