#### Vance *vs*House’s Heirs.

*June*28.

Appeal prom the LoursviLLE Chancery Court.

*Vendor and vendee. Rescission. Rents, Interest. Costs.*

Statements of the bill of House.

Chief Justice Ewing

delivered the opinion of the Court.

In 1830, Robert G. Vance sold and conveyed to Simeon House, a tract of 111 acres of land, in the^county of Jefferson, lying on the Turnpike road fort, for $1,150, payable in instalment from the date. House executed to V$ upon the land, to secure the payment tion, and was put into possession. Ini House on a note for $425, which had bt was made to embrace two of the instalme before fallen due, and iecovered judgment and fired out execution thereon, and had the same levied on the land sold to House, and purchased the greater part of it in satisfaction of his execution, at less than two thirds of its value. He also recovered judgment against Plouse for another instalment of $200, Vance still holding a note for the last instalment of $150. In 1835, House filed his bill enjoining further proceedings against him, alledging that the title of Yance was defective, and that he had, at the time of the sale, represented to him that he had a good and perfect title, and executed and delivered the *538deed with a promise to have the land surveyed, and to make to the complainant another deed, so soon as the same could be done; and the said Vance has failed to survey the land and make a deed as promised.

The answer and cross bill of Vance.

House’s answer to cross bill of Vance.

Bill of revivor by House’s heirs

Vance answered, positively denying that he had made any false representations to said House respecting the title to the land, and insists that'his title is good. He admits that it was agreed between them, that the land should be re-surveyed, and if it should hold out more than the 111 acres, that House was to pay for the surplus, at the rate of the original purchase, and says that it has been re-surveyed and ascertained to contain 116 acres, and he prays a decree for the surplus. He sets out his derivation of title, and making his answer a cross bill, prays that the land may be subjected to the payment of the residue of the consideration. He also brings the heirs of Lee White before the Court, and prays that if there be any defect in the deed executed by him as trustee, *to*Vance, in conjunction with George W. White and wife, that *they*may be required to perfect the same.

House answers the bill, denying that he was to pay for the surplus, and uses the following language in relation to the representation of title by Vance: “He says that said Vance did represent that he was the owner of the land described in the deed filed with the respondent’s original bill; that the deed is evidence of the fact, and if the said Vance has not the *legal title, that then*he did make false representations about the *title,” He tenders*the money in Court, with ten per cent, thereon, which Vance bid for the land when sold under execution, before the time had expired for redemption, and which Vance was allowed to take out of Court, upon executing bond with security, to return the same if required by the decree of the Court.

Plouse died, and the bill was revived in the name of his heirs, who pray that they have a deed for the title to the whole land, if Vance is able to make a good title, and if not, that they have a deed for the title to so much as he is able to make a good title to, and for general relief.

*539Decree of the Chancellor in the Court below.

When the parties have agreed on the principles for adjusting rents and interest in case of inability to convey, or loss of the land, that principle should form the criterion by which to adjust them.

The Chancellor, upon the hearing, annuled the con. tract of conveyance, upon the ground of a defect in the title, fixed the terms and principles upon which rents, improvements, waste, and consideration paid, should be settled, accounted for, and refunded by the parties respectively, and appointed Commissioners to make the assessment, settlement, and report. The report was made and exceptions to the same being taken by Vance, time was allowed to take affidavits for and against the same. In the progress of this inquiry, numerous and contradictory affidavits have been taken, and the record swelled to an enormous size, and the costs oppressively and unnecessarily increased. • The Chancellor, on the examination of the affidavits and proof, sustained the report of the Commissioners, and rendered a decree upon it according to the principles indicated in his decree dissolving the contract, and Vance has appealed to this Court.

We would here premise, that it is passing strange, that the rule should have been adopted for the ascertainment and liquidation of the rents, profits, and interest, which was adopted, when a rule so fair and easy was furnished by the express stipulations of the contract between the parties, in the covenant of warranty. For it is expressly provided that in case of eviction, Vance shall *refund the consideration without interest, as the use of the land is considered equal to the interest upon the consideration.*If upon the loss of the land Vance was not bound to refund interest upon the consideration, nor House to account for rents and profits, it would seem that upon a dissolution of the contract for a defect of title and appre. hended loss of the land, that the same rule of mutual responsibility should have been adopted. And though all the consideration had not been paid by House, as Vance had not been permitted to enjoy the use of the money to that extent, while House had been permitted to enjoy the entire use of the land, equal justice might have been rendered between them, by estimating in favor of Vance, the interest upon the consideration which had not been paid him, and which he had not consequently been permitted to use and enjoy; and with this estima, tion and allowance in favor of Vance, to have settled the *540account by off-setting the rents against the interest, and neither decreeing House to pay rents nor Vance to pay interest upon the consideration which had been paid him.

When a contract for the sale of land has been, executed, a conveyance accepted, and purchaser let into possession, and no eviction or molestation, no injunction to the collection of the purchase money should be awarded, unless there has been *fraud*in the sale, *insolvency*or *non residence*of the vendor, and *palpable*danger of *immediate*or *ultimateloss,*without remedy. The *onus*lies on the vendee filing the bill in such cases.

But passing from this preliminary suggestion, we would remark upon the merits of the controversy, that this is the case of an *executed*contract, when the conveyance has been made *and[accented,*with warranty of title, and possession delivered, and uninterruptedly enjoyed, without eviction or molestation. In such a case, a bill for the dissolution of the contract cannot be sustained, and ther payment of the consideration' injoined, except in the case of fraud, insolvency, or non-residency of the vendor, and a palpable and threatening danger of immediate or ultimate loss, without legal remedy, by reason of the defects in the title convéyed, and the inability of the vendee to protect himself against eviction under it. And to sustain such a bill after the vendee has accepted *the*conveyance, the *onus*lies on him to establish *to the*satisfaction of the Chancellor, that the defect of title and iminent danger of eviction and loss, exists.

Testing this- case by these principles, we must say that there is no allegation of fraud, insolvency, or non-residency charged, according *to*our understanding of the bill, nor is either attempted to be made out in proof, nor is such defect of title shown, as to justify a well grounded apprehension of immediate or ultimate eviction or loss of the land sold.

An attempt is made to sustain the bill on the ground of an allegation of fraud in the representation of good title, when the title was not good, and the failure of Vance to answer this charge. The representation of good title is not charged to have been *fraudulently*made; nor is it charged that Vance knew that his title was defective-, and knowing it, had falsely represented *it to*be good, with a view to deceive or delude him into the purchase. Every allegation that is 'made may be strictly true, and yet Vance be exempt from the slightest imputation of fraud or of a fraudulent intent or purpose. He may have honestly believed that his title was good and the presumption is that he did believe it good, from the fact that he *541had purchased, paid his money, and received a conveyance of the same title. And believing it to be good, he sold and conveyed to House, representing it to be good as he honestly believed it to be. If fraud could be implied from such a representation, it might be implied from every sale and conveyance that is made, when the title should turn out to be imperfect. For good title may be implied from every sale and conveyance by general warranty, that is made. But if fraud is to be *implied*from the representation charged, it is flatly denied by the answer, and there is not a particle of proof to sustain it. It is true that he does not specifically deny the representation of good title charged; and why? Because he then believed and still believes it to be good. But he flatly denies any *false*representation about it, which answers the gist of any express or implied allegation of fraud. Indeed it is apparent from the explanation of the charge, to be found in his answer to Vance’s cross bill, that he intended only to charge that as a'representation which *he implied*from the fact of the conveyance. Nor can the allegation of a breach of promise to have the land surveyed and another conveyance made, amount to a charge of fraud, if it were sustained by the proof. We cannot conceive what advantage could accrue to House, or what purpose could have been answered by having the land surveyed and another deed made, unless the object was the one suggested by Vance, that the true quantity might be ascertained, with a view to a deduction from or addition to the price for the deficiency or surplus. The deed that was made, is abundantly discriptive of the land sold, as much so indeed, as if the same had been described by metes and bounds; and House denies that the survey was to be made to ascertain the surplus, or that he-was bound to pay for the surplus.

Where the purchaser had accepted a conveyance of a title under which possession had been held for more than 30 years, though the derivation of title was imperfect— Held that the *542contract should *tof that*cause.

*541But the complainant has not only failed in his allegations and proofs to make out fraud, but failed also to show such defect of title as endangered his possession, or exposed him to eviction. The possession is proven to have been taken under'titles ofTaylor and Cobb, and enjoyed uninterruptedly under a claim of right by the different vendees, for near forty years. Any apparent defect of title, or in the *542derivation thereof, under those ancient'conveyances which are more than 30 years of age, are surely cured by the lapse of time, and cannot afford even a plausible ground for apprehending danger to the complainant’s possession or title. And although Henry Lyle, Sen. conveyed 200 acres of the Cobb patent, to his two sons, George Lyle and Henry Lyle, and they both have not joined in the conveyance of .the 16 acres to Lurton, or of the 57 acres to George W. White, yet both of these parcels are charged to be parcels of the two hundred acres conveyed to them jointly, and the contrary thereof is not shown by House, upon whom as claimant under an executed contract, the burthen of proof lies; and it may also be inferred from the fact, that George Lyle conveyed the 16 acres to Lurton, as early as 1801, and Henry Lyle the 57 acres to George *W.*White, in 1826, either that they had made a division and each had conveyed, out of the parcels allotted to each severally, or that George had died without issue, and his interest had *devolved*upon his brother, before the last conveyance was made, which has been intimated_ in argument, and the contrary thereof has not been shown, or the title on that account proven to be defective by the complainant, upon whom the *onus*lies. Besides, neither have conveyed as much as the one moiety, to which each would be entitled upon a division, if a division has not heretofore been made, and in the allotment of a moiety to each, the interest of a vendee who has been let into possession would always be respected. So that there could not, from any thing that now appears, be any danger of the ouster of the complainants, from this apparent defect. And though the deed from Henry Lyle has not been proven by the two witnesses, so as to authorize it to be placed on the record, it has been proven by one and is sufficient without being recorded, to pass the legal title; and the possession will always protect the heirs of House against a subsequent sale to an innocent purchaser.

So also with respect to the deed made by Lee White, in conjunction with George *W.*White and wife to Vance; the conveyance passes the naked legal title of Lee White, and the omission to record it cannot redound *to the*injury of *543House’s title, or expose his possession to any real danger, for the reason above intimated; and so far from the complainant’s having shown that any danger could accrue, or the title be successfully asserted in behalf of the other two *cestui que trust,*Elmira and Mary White or Vance, the contrary appears, from the fact, that other more valuble tracts than the one conveyed to Vance, for the benefit of George W. White,, is embraced in the deed to Lee White, as trustee, and more than sufficient to make up to the use of each of them, an equivalent for the tract conveyed to Vance. Besides, by the terms of the deed conveying these several tracts to Lee White, he is to hold the same in the like manner, to the like uses, and with the like powers, as trustee, as he held under the deed of W. White, conveying to him the three-eighths of his estate for the use of the three children, George, Mary and Elmira. And by the original deed, he, the trustee, had the right, in conjunction with the other children of Wm. White, to whom he conveyed his estate, to sell, exchange or purchase other estate, and *divide*the proceeds among the three *cestui que trust.*The conveyance to Lee White, by the other heirs, is in the form of a sale and purchase by Lee White, and it was competent for him to divide the lands among them, or to set apart to either a portion not exceeding his or her aliquot parts. And we-understand the deed made by him to Vance, in conjunction with George W. and his wife, as setting apart to George a portion of the trust fund in his hands, which he had a right to do; at least, the contrary thereof has not been shown by the complainant, or that their title is in any wise subject to be disturbed by these equities.

The Court divide the costs in this and the inferior Court.

Upon the whole, without going more minutely into the examination of the title, we are satisfied, from the most careful examination, that the complainant has not shown any good ground for apprehending that there is immediate or ultimate danger of disturbance to their title or possession. Their bill must therefore be dismissed.

But as much of the costs have been incurred and accumulated in the vain and unsuccessful attempt of Vance to reduce the amount of assessment for rents, and as we have already suggested that the rule adopted was errone*544ous, and the decree for dissolution also, and the error in the decree of dissolution might have been corrected by bringing the case to this Court, and the immense bur-then of costs saved to the parties, and as we have the power under the statute, to divide the costs in cases of reversals, we think the costs in this case should be divided in this Court; and under all the circumstances, that the costs in the Court below should also be divided.

Mandate.

*Thruston and Baird*for appellant: *Guthrie*for appellees.

The decree of the Circuit Court is reversed, and cause remanded, that the complainant’s bill may be dismissed upon the terms indicated, and that Yance, if he desire it, may have leave to proceed upon his cross bill, to enforce payment of the residue of the consideration out of the land, and the costs in this Court is to be divided equally between the parties litigant.