#### John T. Clanton *v.*John Burges.

\ venden- may complete his will, pending- a suit to rescind the contract for defect of title, at any time before the hearing.

This bill was filed in Halifax, and alleged, that in the year 1825, the defendant offered to sell the plaintiff a tract of land, to which he represented that he had a good title in fee : that the plaintiff confiding in these representations, purchased the land at the price of §1240: shat the defendant executed to him a deed in fee, with a covenant for quiet enjoyment, and the plaintiff gave his bond to secure the purchase money ; that, in truth, the defendant had not an estate in fee-simple in the land : ihat he claimed under one *William W. Mston*and *Mary*ids wife, who, after their marriage, had conveyed the land of the wife to the defendant, by a deed, to which ;he wife liad never been privately examined. -It further charged, that the plaintiff was in possession, and could not sue at law upon his covenant, and that the defendant had obtained judgment on the bond given to secure the purchase money. The deeds from *Mston*and wife, and from the defendant to the plaintiff, were filed as exhibits. By the former, the land was conveyed to the defendant, in trust, to pay over the rents and profits to *14
      *Mrs. Alston,*during lier life, for her sole and separate use’ a rema*nder in fee,' to the issue of the marriage. This title was recited in the deed from the defendant to the plaintiff. The prayer was for an injunction and general relief.

The defendant, in his answer, admitted the principal charges in the bill; but alleged that the plaintiff was fully apprized of the nature of the title, and denied that he had ever represented himself as having full power to convey. Pending this suit, the defendant obtained from *Alston*and wife, a deed conveying the land in fee-simple to the plaintiff, to which the wife had been privately examined, and it was filed in the cause for the use of the plaintiff.

*Seawell*and *Dcvereux,*for the plaintiffs,

insisted :

1st. That equity would grant relief, on the ground of mistake or failure of consideration, although there were perfect *bona Jides*between the parties, and cited *Edwards*v. *McLeuy (Cooper’s Eq. R.*308) *Gordon*v. *Gordon*(3 *Swans.*467) *Fish*v. *Klein*(2 *Mer.*431).

2d; That a vendee was' not bound to take a title incumbered by a previous voluntary conveyance. *(Smith*v. *Garland :1 Mer.*123.)

3d. That the deed filed in the cause, for the use of the defendant, was not mentioned in the pleadings, and therefore could not be read.

*Badger,*for the defendant,

urged, 1st, That relief for a mistake in law would not be granted; that the ven-dee takes his title at his peril, if he is under no mistake as to the facts. And cited *Abbot*v. *Allen*(2 *John. Ch. 11.*519) *Lyon*v. *Richmond (do.*51) *Shot-well*v. *Murray, (do.*516) *Bilbie*v. *Limiley*(2 *East*469).

2d. Where a bill is filed on the ground of defect of title, the defendant has a right to make the title perfect, up to the very moment of the hearing.

RurETN, Judge.

The defects of the title complained of consist in the want of a privy examination of .Airs. *Alston*to the deed to Burges,so that-it passed only the estate for life of her husband; and in the trust created by that deed. *15in favor of *Mrs. Mston,*and to her separate use during her life, and after her death for her issue. Pending this *suit, Mston*and wife have duly executed a deed to the plaintiff himself in fee, which has been filed in the cause by the defendant, for the use of the plaintiff. The bill does not charge any fraud on the paid of the defendant. It alleges, indeed, that the plaintiff discovered, since he-took the deed from *Burges,*the two defects above mentioned. ' But it is not charged that *Burges*concealed those facts, or that he knew the effect of them, and did not communicate it to the plaintiff, On the contrary the plaintiff exhibits the deed to him; and upon the face of it, there is an express reference to the deed of trust from *Mston*and wife. It might well be taken then, that the plaintiff knew the state of the title. He would certainly be affected with notice, in respect of the *cestui que trust*in that deed. For knowledge and the means of knowledge are the same. And the same fact, which communicates knowledge for one purpose, must be considered as doing it for all others. The case cited at the bar of *Abbot*v. *Allen,*(2 *Johns. C. R.*519) lays it down, that a purchaser, who has received a conveyance, and is in possession and not disturbed, will not be relieved on the mere ground of defect of title, whore there was no fraud nor eviction, but must rely on his covenants. Much more must it be so, when the very defects of title alleged were known to the party, at the time he took his conveyance. The contrary would amount to this: that no obligatory contract ran be made, unless the vendor’s title is perfect; and that any defect, secret or notorious — so notorious as to affect the price agreed on — should put it in the vendee’s power to rescind, after x’eceiving a conveyance, with covenants against those defects. This would be annulling contracts fairly made, and subject the vendor to circumvention, because lie himself acted honestly. - But this cause does not demand a decision of this point; as those defects have been since cured.

*It seems*that a purchaser who has given abond' for the purchase money, and is in the undisturbed possession, will not be relieved againstthe bond on the ground of a defective title, there being no allegation of fraud in the sale-

It is undoubtedly the law of this court, that the vendor may complete his title ponding the suit, and at any time be • fore the hearing, He is. allowed to make good liis *16contract, and buy bis peace. The last deed from *Alston*and wife is an effectual conveyance of the fee to the plaintiff. Its validity cannot be impaired by an ack-nowledgement *ofthofeme*of the deed to *Burges;*for such acknowledgment does not relate hack, and only makes it her deed from the time of her privy examination. The only possible *hiatus*then in the plaintiff’s title is the trust in favor of the children, arising out of the estate of the husband as tenant by the curtesy, from the death of their mother . until that of their father, if he should happen to be the survivor. • Whether if the contract rested in articles, the purchaser would be compelled upon a bill of the vendor to accept a conveyance, ■with even this small cloud over it, I will not say. Probably he would not. He would have a rigiit, before he parted from his money, to ask a clear title. But so minute'an outstanding interest, depending upon such a contingency, can never form ground for rescinding a contract, at the instance of a purchaser who is in possession under a conveyance executed, with full covenants for quiet possession, from a vendor not alleged to be in .failing circumstances, who made, on the treaty, a full communication of his title. To grant the prayer of the bill would he to proclaim encouragement to dishonest dealing, and an invitation to purchasers to expose latent defects in their vendor’s title,'Instead ofeuringthem by enjoyment. ■ s

*Per Jhiflin,*J. Where the land of flic wife was conveyed by the husband to her separate use during life, remainder to the issue ofthemarriage-upon an execu-tory contract by husband'andwife for a sale, a specific performance will not be decreed.

But if the sale be executed, so minute an out-stand'nginterest as the trust in favor of the children, depending-upon the curtesy of the husband, will not vacate the contract.

vendeebas taken his title, • this semd 'thtn°con-tract, because of conveyance11^ the vendor, gainst ^he^ven-dee.

In truth, however, even this trivial imperfection does 11 ex*s^ *n ^1C title. It is now complete. The deed of settlement from *Alston*to *Burges*was after marriage; anfl so voluntary, and void as against subsequent purchasers under statute *2,7th Eli».*Of this there can be no doubt,' whether the purchaser have .notice or not of the previous voluntary conveyance. It is established by an uninterrupted series of cases, from the passing of the statute until this time. And there can be as little doubt, that the plaintiff must he regarded as a purchaser from *Alston*and wife ; for the price paid to *Burges*is a consideration extending, under the circumstances, to them. *Smith*v. *Garland*(2 *Mer.*123) and *Pulvertoft*v. *Pulver*
      *17
      *toft*(18 *Ves.*93) were cited for the plaintiff, to show that though a voluntary deed be void, yet a purchaser could not be compelled to specific performance, where the estate was incumbered \vith such a conveyance. That only means, that a man shall not be forced to take a lawsuit, upon the bill of the vendor. But where lie has already taken the title, the fetters which he has put on himself cannot be loosed by the court, upon any such ground.

It has been objected that no notice Can be taken of the deed now filed, because it is not within the pleadings. The title supplied pending the suit never is. It is tobe sure the more, regular way, for one ofthe parties to ask a reference of the title, and have it reported. But that is only for the ease of the court; which may act by itself, and is not obliged to ascertain any fact by way of inquiry, hut may do so directly. There is no complexity in this title; and therefore the court has thought it proper to proceed, without putting the parties to the expense and delay of an inquiry.

Per Curiam — Bna, dismissed.