#### *Sarah T. Huson*vs. *Silas Anderson.*

Bill by vendee to rescind a contract for the sale of land; vondor had, at most, only an equitable title to the land, dependent upon his payingforit,* this was known tq ven-dee, but she was told that vendor expected to be authorized by the Court to make titles j five years elapsed,’ and vendor had taken no steps towards the perfection of the title, and, in the mean time, had become insolvent. *Held,*that vendee was entitled to have the contract rescinded *t*and she, having been in possession, was ordered to account for the rents and profits, deducting therefrom the value of any permanent improvements she may have made on the land. ‘ .

*Before*Harper, Ch., *at*Union, *Aug.,*1891.

Harper, Ch. On the 26th Jan., 1826, the defendant, Silas Anderson, executed to the complainant his bond, in the penal *165sum of $760, conditioned to make titles to a tract of land' therein described, and complainant gavé to defendant her notes of hand for $375, the consideration money. The'object..of the bill is. to rescind this contract, and to enjoin defendant, who has commenced suits a.t law on the notes of hand,-oh two grounds:

1st. That the defendant is unable to make. a. title to any of the land specified in the condition of the bond. .

2d. On the ground of misrepresentation : the defendant having represented to her that a certain hill, on which she after-wards built a house, was included within the limits of the land described. in the condition of the bond, when, in fact, it was without those lines— that building site having been the principal inducement to the purchase.

The facts relating-to the first ground are,, that Elijah Anderson, of whom defendant is executor, in his life time executed a bond for titles to the land in question, to one Burell: Burell, according to his own statement, (having-been examined as a witness in the cause,) applied to defendant to take back the land. He agreed to do so, gave up the witness’ notes, which had ' been given for the purchase money, and took the bond for titles. Witness understood that he took the land for himself. If this be so, defendant purchased Burell’s- equitably title to the land on his own account, and may have a right to the. aid of this Court to perfect his title. ' It may be, however,'.that th.e .heirs of Elijah Anderson may have a right to consider this purchase a trust for them. This is not a matter now before me. The bill does not seek or offer performance — -it merely claims a recision, on account of defendant’s inability to perform. Cértainly, for any thing that now 'appears, I cannot say that defendant will be unable to perform.- It appears, moreover, from the testimony of Morgan Huson, the son of- complainant,' that she knew the situation of the title at the time she completed the contract and gave her notes. The witness says that defendant informed her he expected to be authorized by the Court to make title to Bu-rell, and Burell would make title- to her.' She was informed that a title was to.be obtained by the aid of the Court. Thus *166knowing the situation of the title at the time of the contract, if her bill had been for performance, she would have been bound, in this Court, to make Burell and the heirs of Elijah Anderson parties, that the Court might have been able to make a final determination of the matter.

As to the secdnd ground on which the recision is claimed, the allegation and testimony is, that while complairiant and defendant-were in treaty for the land, defendant represented the'line of the land as running within fifteen or twenty feet of a certain spring. If the line had run there, it would have included, the hill on which the house was built. The site was selected on account of its convenience to the spring. There is another suitable site for a house, about'one hundred yards further from the spring, less convenient on account of that remoteness. The fact of the misrepresentation is pot very clearly proved. It is denied positively by defendant, in his answer, who states that, when complainant was about to build her house, he informed 'her that the site was without the line of the land, and if she built there it must be at her own risk. It is sustained chiefly by Morgan Huson, son of complainant. • He is supported by the testimony of William T. Clark, who states that, when the survey of- the land was made by one Pope, in 1826, defendant was present, and admitted to complainant that he had pointed out the hill in. question as part of the land; but William Selby, who was present on the same occasion, said that' defendant. denied having sold her that land. Moses' Clenn states that, when he was about to cut logs for complainant’s house, defendant directed him to cut logs bn the- site where- the house now is, as well as the other site, about one hundred yards off. If the case depended entirely oh the alleged fact, I shoüld hesitate as to the proof. But suppose it to be -proved.

If defendant is. able to make title to ¿11 the land- described in the bond, there is no actual breach of contract. But if, without an actuál breach of contract, a vendor wilfully misrepresents the thing- sold, as by representing a: described tract to contain land which it does not contain, to the injury of the purchaser, *167this is a fraud, and will,vitiate the contract. There is, however, no allegation or proof of any such fraud in this case: On the contrary, when'it was” discovered that• complainant had built her house without the lines of the land, defendant seems to have been disposed to compensate her as far as it was in his power.’ • . ' ,

If, without fraucl, the vendor makes a material misrepresentation, this may be good ground for compensation, or ’an abatement of the price. If he misrepresents with respect to a matter which was the chief indhcement to the purchase, or without which the object of the purchase would be-defeated, this affords a good ground for the entire récision of the cohtract. Compensation is not claimed in this case, but an entire récision. I cannot say, speaking with reference to the time of complainant’s purchase, that the hill , in question was the main inducement-to the complainant’s purchase,-or that, without it, the object of the purchase would be defeated. The situation on which defendant has'built is about one hundred yards nearer to the spring; and therefore more convenient than the other situation on the land; I cannot say that the object of complainant’s purchase would have been defeated, if she had been subjected to this inconvenience, by being compelled to build on the more remote situation. Nor have I any evidence that the building, site was hex-main inducement to purchase. • Her son says, the bargain was delayed for some time, because the spring was not on the land. It is true that she did afterwards build on this site, as being the most convenient. But, from all the testimony', I cannot say but that" the other situation would have answered nearly as well, or that she would not have purchased, if she had known that she was not to have the most convenient situation. • That she did, in fact, afterwards select the situation which appeared most convenient, cannot affect the case,-further than to increase her title to compensation or to damages,'for the injury she may have sustained by defendant’s misrepresentation. Contracts are not to be lightly rescinded. The complainant may obtain all that she contracted for, and, for any injury shé has sustained *168by the false representation of defendant, she may have compensation. . -

There is another view of the case. It appears that the hill on which the house is built is on a tract of land which had also belonged, to Elijah Anderson, the father and testator of defendant. By his will, (if I ímdérstand correctly the land meant,) it is devised, on certain terms, to defendant. 'When complainant discovered that the house was not included in the land sold to her, it appears that defendant proposed to give her. a small portion of this- land, including the house — to which proposal she assented, and defendant marked out the piece of land. It appears further, from the • testimony of Davis Caldwell, that, on some occasion, complainant made a formal tender' to defendant, of the .first instalment of the purchase money, on consideration he would make her a good title to this piece of land. He-, offered'to execute a title, which she, after-inspecting the will of Elijah Anderson, declined to accept. By that will, the land is directed to be valued, and given at valuation to his son, the defendant. If the land amount to more than defendant’s equal share of the estate, he shall,pay the overplus to testator’s daughters. This is sufficient to give defendant a fee in the land. It is provided, however, that if defendant should-die before testator’s youngest daughter should attain the age of fourteen years, the land should be divided between his (defendants) children) they paying in like manner the overplus. This can only be' an executory devise to defendant’s children, on the contingency, mentioned. It appears to me that defendant must be able to make á good title in fee, subject only to be defeated on the event of defendant’s dying before the testator’s youngest daughter shall have attained the age of fourteen. Whether testator’s daughter has yet attained the age of fourteen I do not - know. But if defendant be' able to make her a good title to the ‘ land in question, and having offered to do so, she has clearly waived any equity she might have had, to rescind the contract, on the ground of misrepresentation. It is said that, when lands are shown to a' purchaser, as part of his purcháse, hé will be *169entitled to hold them, though not included in the conveyance. Sugd. on Vend., (2d Am. Ed.,) quoting *Oxwick*vs *.'Brocket^*1 Eq. Ca. Ab. 355. If so, complainant may yet compel defendant to convey the piece of land in question. -It does not appear that defendant has ever yet been molested in her possession, either of the house or land, but has continued to cultivate and enjoy them. I must dismiss her bill, leaving her either to proceed on her bond at law, or to file her bill for specific performance and compensation, making proper parties. ■ •

Bill dismissed with costs.

The complainant appealed on the following grounds :

1st. Because, from the case made by the bill, and sustained by the evidence, the complainant was entitled to the relief prayed for in the bill.

2d. Because the bill should have been retained until after the trial at Jaw, or the Chancellor should, m his decree, have decreed compensation for the land shown as defendant’s, which was not his.

, 3d. Because the Chancellor has given force and effect to the defendant’s answer, as to a matter concerning which the bill expressly states there was no discovery sought: that is, he denies he pointed out the hill mentioned in the bill, to complainant, to build on, when the bill stated, that could be proved by others, and his evidence was not wanted-on that point.

4th. Because the Court should, under the prayer for general relief, have made. such order and decree as the equity of the case required, though not strictly in accordance with the particular relief prayed in the bill.

5th. Because it is clear that defendant, Anderson, had no right or title to the land, at the time of the sale to complainant, nor has he, even now, and therefore the bill should have been retained, and the titles completed,-and that at defendant’s costs.

*A. W.*Thomson, for appellant.

The opinion of the Court was delivered by

*170.JohnsoN, J.

The circumstances of- this case abundantly shew, that the defendant’s title to the land, sold by him to the complainant, and described in the bill, is, when put upon the best possible footing, merely equitable. It had originally belonged to his father, Elijah Anderson, now deceased. He had contracted to sell it to Burell, and took his notes *for the*price, and gave him a bond to make titles. After his death, the defendant, his son and executor, agreed with Burell to rescind that contract, as it is said on his own account, and in pursuance of it, delivered up Burell’s notes, and received his testator’s bond in exchange. If then it be conceded, that the defehdant might thus barter the funds of his testator’s estate for his own emolument, and that the delivery of the bond is a legal and valid ■assignment, still the legal title is in the heirs general.of Elijah Anderson; and placing the defendant- precisely in the situation that Burell would have been in if he had retained the bond, his whole interest consisted in the right to enforce .in Equity the specific'performance of the condition of the bond on the payment of the purchase money — a title which Equity, (other considera- . tions being out of the way,) will never compel a purchaser to accept.: a purchaser is not obliged to accept an ■ equitable title, but has the right to insist on a clear legal title. *Cooper*vs. Denne, 1 Ves., Jr., 565 ; Sug. on Vend. 259, et seq. , I concur, however, with my brother Harper, that the complainant’s knowledge of the situation of the title, was in some sort evidence of her assent to niake the contract upon the responsibility of the defendant, and in the confidence that he would, and could, at a convenient time, extinguish the title of the heirs; but she was told at the time, that he expected to be authorized- by the Court to make titles.- Five years have elapsed, and the defendant has yet taken no step towards the perfection of the title — how long is she to wait ? Her object in purchasing was doubtless the land. What security has she, other than the personal responsibility of defendant, that her title will ever be perfected? and here I must notice a most important circumstance which seems to have been entirely overlooked by the Chancellor, and which *171if it had struck his attention, I am satisfied would have materially changed his view of the case.

Whatever .might have been the situation of the defendant at the time of the contract, the bill charges that at the time of its filing, the defendant was in doubtful or insolvent circumstances. That is not directly controverted, and the fact is said to be matter of public notoriety. The effect of the Circuit Court decree is, then, to compel the complainant, as a purchaser, to pay for a tract of, land, to which the defendant, the seller, had at most a merely equitable title dependent upon his paying for it— which he is not now, and probably never will be able to do. Whatever knowledge she may have had of the state of the title, it will not be believed that she could have foreseen, and contracted with reference to these results, and Equity will not compel her to perform the contract upon a mere hazard, and on conditions so unreasonable: but upon the same principle of Equity, she must account with the defendant for whatever .benefit she may have derived from the contract.

It is, therefore, ordered and decreed, that the complainant do account before the Commissioner, for the rents and profits of the land .during the time she has had it in possession, deducting therefrom the value of any permanént improvements that she may have made, as well on the land defined in defendant’s bond, as that which he represented as contained within the boundaries, and that she pay to defendant the balance that may be so found to be due, if any thing, and that she deliver up, to be cancelled, the defendant’s bond to make titles. And it is further ordered and decreed, that the defendant be forever enjoined from proceeding in his action at law against the said complainant, on her notes of hand or other obligation, given as the price of the said land, and that he also deliver up the said notes, or other obligation, to be cancelled.

O’Neall and Maktln, JJ., concurred.

*Decree reversed.*