#### *John S. Maner*v. *W. Washington and wife et al.*

Complainant bought a tract of land, and, under the advice of counsel, took a title, (with warranty,) which he believed to be good, and paid the purchase money. After ten years possession, being advised by other counsel that the title would be defeasible by the happening of a future contingency, he filed a bill for confirmation of the title, &e. or for a rescisión of the contract of sale. The Court refused to grant relief.

Where a purchaser takes possession of the land, pays the purchase money, accepts a deed of conveyance and executes the contract, he cannot call upon Equity, except upon the ground of fraud, to rescind it, but must rely upon the covenants of his deed for redress.

Charleston

Jan’ry. 1849.

*172*Before*Dargan, Oh. *at Gillisonville.*February, 1848. *J*’ *.Hi*

James E. McPherson, late of Prince William’s parish, by his last will and testament, which he left unrevoked, *inter alia,*devised and bequeathed as follows: *“*I give and bequeath to my son James McPherson, and his heirs, my plantation on Black Swamp, in St. Peter’s parish, which I purchased of Mr. Lynes ; also twenty-five negroes on said plantation, and their families ; in trust for my daughter Theodo-sia Narcissa Washington, and her heirs, forever, to her sole and separate use, not liable to the debts of her present or any future husband. But in case my said daughter Theodosia Narcissa should die leaving issue, then I give the whole of the plantation and negroes aforesaid to her children, or issue, to vest, at her decease, in the said issue absolutely, as if they took by intestacy; provided, nevertheless, that if my said daughter should die in the lifetime of her husband, William Washington, esqr. leaving issue, it shall and may be lawful for the said William Washington, notwithstanding the legal estate will have vested in his children, to take and receive the income and profits of the said estate, real and personal, for the joint benefit of himself and the children, during his natural life.”

Shortly after the execution of this will, James E. McPherson died, and Elizabeth McPherson, his wife, and James S. McPherson, his son, nominated as executrix and executor, duly took upon themselves the burthen of execution, and James S. McPherson, with the assent and approbation of Elizabeth McPherson, took possession, as trustee, of the estate, real and personal, given to him by his father’s will, in trust for Mrs. Washington, as above stated. On the 7th March, 1838, James S. McPherson, Wm. Washington, and his wife Theodosia N. Washington, by their joint deed, duly executed and delivered, conveyed the Black Swamp plantation to the complainant, in fee, for the sum of four thousand dollars, one thousand dollars of which was paid at the execution of the deed, and three thousand dollars shortly afterwards, into the hands of William Washington, with the assent and permission of James S. McPherson, the trustee, and afterwards Mrs. Washington regularly executed a renunciation of her inheritance and estate in the plantation conveyed in the deed.

The complainant states that when he purchased the land and consummated the contract, he did so under the advice of counsel learned in the law, who advised him that the title he received was good, which he then believed; but since, other counsel, also learned in the law, have expressed a different opinion, and that the children which Mrs. Washington may leave will have an interest or estate in the land, which will not be barred or defeated by the deed. He also states that *173James S. McPherson has departed this life, leaving his widow and an infant, John James McPherson, his only heirs at law, who, together with William Washington, Mrs. Washington, and their three infant children, McPherson Washington, Martha Washington, and Elizabeth Washington, are made parties defendants to the bill.

The bill prays that it may be *“*decreed that the said tract • of land was well sold to complainant for the benefit and advantage of the trust estate, and the title thereto confirmed against the contingent right in remainder of the issue of Mrs. Washington; and that the estate, both real and personal, devised by James E. McPherson to James S. McPherson, in trust for Mrs. Washington and her issue, may be bound and declared liable in the hands of the heirs at law of the said James S. McPherson, and in the hands of any other trustee who may be substituted in their stead, and in the hands of the issue of Mrs. Washington, who may survive her, by all and for all and singular the covenahts contained in the said deed of conveyance; or that the said contract of bargain and sale may be rescinded and cancelled, and that the said William Washington and wife and infant children, and Mrs. Cornelia McPherson and John J. McPherson, be ordered and decreed to refund to the complainant the full amount of the purchase money paid by him, from the trust estate, and that until the same be fully paid that complainant may have a decree against the estate of the said James S. McPherson for the said purchase money, with leave to enforce the decree against the assets or lands of the said James S. McPherson,” &c.

To this bill, the defendants, William Washington and wife, have filed a joint answer, in which admitting the facts stated in the bill, they contend that the title which the complainant has is good and sufficient, apd if by this Court held otherwise, they say they are ready and willing to convey the lands to the complainant by feoffment, or in any other mode by which his title may be perfected. They also object, that the plaintiff has adequate remedy at law, and is not entitled to relief in Equity. Mrs. Cornelia McPherson answers, admitting the deed of conveyance and the circumstances attending it, as stated in the bill, she contends that the complainant’s title is good, and if not, that his remedy is in a Court of Law and not in this Court. John J. McPherson and the three infant children of Mrs. Washington, have, by their guardian *ad*litem, answered formally, neither admitting nor denying the complainant’s claim to relief, and submitting their rights to the protection of the Court. It was admitted, on the argument, that Mrs. McPherson, administratrix of James E. McPherson, has administered all the assets that have come into her hands, though she did not set up the plea of *plene admin-istravit.*

*1741 P. L. 382. 1 Brev. Dig. 172.

Dud. Eq. 115.

Feame on Con Rem. 231.

William Washington is not responsible, in point of view, and the money received by him, of the land, cannot be recovered. a pecuniary as the price

Such are the facts, and such the state of the this case. pleadings in

DECREE.

Dargan, Ch. The first question which addresses itself for my consideration and judgment is, what estate did Mrs. Washington take by her father’s will? It will be borne in mind that Mr. and Mrs. Washington, by their answer, tender to the complainant a conveyance by feofment, and they seem to entertain the opinion that if Mrs. Washington takes by the will an estate for life, with contingent remainders to her children, that this ancient mode of conveyance would bar the contingent remainders, and make the title of the complainant perfect. And I have no doubt, that where the tenant for life is seized of the legal estate such would be the effect.

The conveyance by feofment is one of the ancient common law modes of conveyance, and always had the effect of barring contingent remainders. In practice it is superceded in England by those modes of conveyance called bargain and sale, lease and release, &c. growing out of the statute of uses, and in South Carolina by the form of conveyances prescribed by the Act of 1795. But that Act expressly provides, that it not held to invalidate the forms heretofore of use in this State. This leaves the mode of conveyance by feofment in full force and effect; and such was the judgment of the Court in *Middleton*v. *Kinloch.*But, by the principles of the common law, where the tenant for life was not seized of the legal estate, but only a *cestui que*trust, the effect of a feofment would not be to bar the contingent remainders depen-^ant uPon the life estate. It is true, that if the trustee were ’to join the *cestui que trust*in the feofment, the contingent remainders would be barred. But in this case, though the trustee, James S. McPherson, has united with the *cestui que trust*tenants for life in the statutory mode of conveyance, he has made no offer to join in the feofment for the purpose of perfecting the title of the complainant. And if he did, it would not alter the result; for, in the case of *Middleton*v. *Kinloch,*the Court of Appeals, concurring with Chancellor Harper in his views as to the effect of a feofment in cutting off contingent remainders, were of the opinion that the Court of Equity “ought not to interfere *to aid*tenants for life in defeating the remainders, or to compel the vendees to accept such titles.” It comes to this, then, on this part of the case; if Mrs. Washington is held to take a life estate, under the will, with contingent remainders to her children, and she, with her husband and the trustee, are disposed to execute a feofment, and the complainant is willing to accept such a *175title, the title of the complainant can be perfected without the aid or interference oí this Court. But this Court will not lend its sanction to such attempts upon the integrity of the remainders, and will not exercise its jurisdiction in compelling the vendor to make, or the vendee to accept, such a title. But I am of the opinion that Mrs. Washington takes more than a life estate under the will. The devise is to James S. McPherson, “ in trust for my daughter Theodosia Narcissa Washington, and her heirs forever.” Here are words both of perpetuity and inheritance. The children cannot take by way of remainder, because a remainder cannot be limited on a fee, not even in the case of a base or qualified fee. Thus Lord Coke says “ if lands be given to A and his heirs, so as B has heirs of his body, remainder over in fee, the remainder over void.” True that since the Statute *de donis,*a remainder in England may be limited after an estate tail, but that statute has never been of force in this State. Such was the jealousy of our republican ancestors in regard to aristocratic institutions, which it was the object of that Act to strengthen, that by the Act of 1712, enumerating certain British statutes to be made of force, and in which the statute *de donis*was not included, they committed the supererogation of declaring that this law, so famous in the annals of English legislation and jurisprudence, was not to bo of force. The law, in this regard, then, stands as the common law stood prior to the Statute 2 Westminster. A remainder cannot be limited, either after a qualified fee or a fee conditional. *Edwards*v. *Barks-dale, Bailey*v. *Seabrook, Bedon v. Bedon.*

1 Inst. 18, a. ReP-6-

2 Hill’s Ch. 3 BaJwg l R.231.

Did Mrs. Washington take under the will of her father a fee conditional ? I think not. If she did take a fee conditional, the title of the complainant is perfect, so far as regards the rights of the children. For the condition having been performed, to wit, the birth of children capable of inheriting the estate, the tenant in fee conditional acquires the right to alienate the estate, and thus to defeat the rights of the issue, and prevent the descent of the estate upon them. It is only in the event of the tenant in fee conditional under these circumstances failing to alien, that the gift to the issue takes effect *per formam doni.*In a fee conditional, on failure of the issue, who by the terms of the gift are to take, there is a rever-ter to the donor or testator. But in the case of James E. McPherson’s will, there can be no reverter ; there is no remnant of his estate in these lands, in regard to which he died intestate. He gives it to Mrs. Washington and her heirs forever. He disposes of his entire estate, and, wherever it may have gone, there is no part of it that was left to descend to his heirs at law.

Mr. McPherson gives the estate to Mrs. Washington and her heirs forever. This, unqualified, would give a fee sim-*176pie absolute. But a larger estate created in the first part of a ,jee(j or may controlled, restricted and qualified by subsequent words, showing an intention to create a less estate. He gives to Mrs. Washington the estate, to her and her heirs forever; that is to say, he gives her a fee simple. But if she *“*should die leaving issue ” then he gives it *“*to her children or issue, to vest at herdeceasein such issue absolutely, as if they took by intestacy.” The meaning of which is, that on the condition of her leaving issue at her death, the fee that he had devised to her and her heirs, should be divested, and vest absolutely in her children. If she left no issue, by the clearest implication, if not by express words, the estate, on the death of Mrs. Washington, was to remain where the devise of the testator placed it; in her heirs at law. What is this but a fee simple, defeasable upon a condition subsequent, created by way of executory devise, by which mode it is competent to create such estates; provided they do not come into conflict with the rales of law against perpetuities. *En passem.*I will say that no question as to remoteness can be raised here, as the condition on which Mrs. Washington’s estate is to be divested, must happen, if it ever happens, inevitably, at her death. The interest given to Mrs. Washington comes within all the legal definitions of the kind of estate which I have assumed it to be. It is an estate in fee, to be divested on a lawful and possible condition, which must happen within the legal boundaries of remoteness, and created by executory devise. “ A condition ” as defined by Lord Coke, *“*is a qualification or restriction annexed to a conveyance of lands, whereby it is provided that in case a particular event does, or does not, happen ; or in case the grantor or grantee does, or omits, a particular act, an estate shall commence, be enlarged, or defeated.” The condition on which the estate in fee devised to Mrs. Washington is to be defeated or divested, is her having issue living at her death, an event which yet remains contingent.

l Inst. 201. a.

Cro. Jac. 590.

This, then, is a fee defeasible upon a condition subsequent, by way of executory devise, a species of limitation unknown to the early common law, and which has sprung up since *the*Statute of Uses, and of wills. The object was to support and carry into effect the will of the testator. For when it was manifest that he intended to create a contingent remainder, which could not operate as such by the strict rules of the common law, the limitation was then, out of indulgence to wills, held to be good as an executory devise; a rule, however, which has been subjected to the wholesome restraints which the law imposes against the creation of perpetuities or unalienable estates. The principle was at first cautiously admitted until the leading case of *Pells*v. Brown, by which it was firmly established as a part of the English law, *177and by which it was decided that a fee might be limited upon a fee, by way of executory devise. And now the doc-^ trine is well settled, that an executory devise cannot be defeated or barred, either by a feofment or a common recovery. There are two kinds of executory devises relative to estates in lands. A definition of the first (according to Powell, J. in *J Catterwood*v. *Edge,*quoted by Fearne) is where the de-visor parts with the whole estate, but upon some contingency qualifies the disposition of it, and limits an estate on that contingency. Under this first class, comes the devise to Mrs. Washington and her children.

l Salk. Rep. 239>

1 Hill’s Ch. 265.

l Spear’s Eq. 402-

This view of the case is in accordance with the recognized doctrine of this Court in *Bedon*v. *Bedon.*There Josiah Bedon devised lands to his son Stobo, (without words of inheritance) but if his son should die without being married and leaving issue a son, then over to another son of the testator, with remainder over, <fcc. It was held that Stobo took a tee defeasible on his dying unmarried, and leaving no issue male living at his death, or born within a competent period afterwards, and that the estate became indefeasible in his heirs, on the birth of a posthumous son, although he died in early infancy. Thus also in *Adams*v. Chaplin, where Benjamin Chaplin devised a tract of land to his son John, to him, *his*heirs and assigns forever; but if he should die without lawful heirs, or before he is twenty one years old, then to go to his sou William, his heirs and assigns forever. The word “ or ” was construed “ and,” and it was held that John took an estate in fee, defeasible on his dying without issue. To the same effect is the more recent case, *Vidal*v. *Verdier.*I think it would be difficult for the most skilful and practised dialectitian to distinguish these cases from that arising under the devise to Mrs. Washington. The only difference is that in the case last quoted, the fee was made de-feasible on the first taker dying without issue; and in the devise to Mrs. Washington the fee is to be defeated on her dying and leaving issue, (which issue are the persons to take,) a difference which can have no effect in the application of the principle.

It was contended in the argument, that the words of the will, directing that the children were to take “as in cases of intestacy” would qualify the construction. But I attach no importance whatever to these words ; on the question that I have been considering, it is impossible that the testator should have used the word “ intestacy ” in its technical sense. Intestacy, from whom? From himself or Mrs Washington? If from himself, then a case of intestacy would let in his other heirs at law; and if from Mrs. Washington it would imply that she was to take an unqualified fee, and that they were to inherit from her. Either supposition is entirely *178inconsistent with the provisions of the will. He used the wor(js in another than the technical sense, and simply meant that on the childrens taking, they were to take *per capita,*the *jus representation^*in favor of the issue of any that might not be living, according to the Act of distributions.

l Rich. Eq. ' 404.

2 Bailey 623 2 McC. Ch. R. 455.

The'complainant, then, has not obtained a perfect title, but has one that is likely to be defeated by the very probable contingency of Mrs. Washington’s dying and leaving issue. Framing his bill with a double aspect, he then asks, in this view of the case, for a rescisión of the contract, and that this Court would decree a restitution of the purchase money, to be paid out of the separate estate of Mrs. Washington in the possession of the trustee of Mr. and Mrs. Washington, and even out of the estate of the unconscious children, guiltless as they are of any participation in the transition of the estate. Surely he does not mean to lose any thing by not asking enough. As to the proposition to subject the separate estate of Mrs. Washington, and the remainder of her children, to the repayment of the purchase money, I will not pause to consider it, but pass it over as too plain to be discussed. But is the trustee, James S. McPherson, and William Washing’ ton, who joined in the conveyance, liable to the repayment of tho purchase money ? There has been no fraud or imposition upon the complainant. He knew as much of the title as they did. They submitted it to him, and by him it was submitted to the inspection of counsel who deliberately gave his opinion on it. He is in the possession and enjoyment of the estate, and has been from the day of the execution of the deed, which has now been some ten years. I do not think that under these circumstances he is entitled to a rescisión of the contract.

It is the case of *Slucky*ads. *Whitworth*I subscribed heartily to the reasoning of Chancellor Harper in that case, (on the question as to what relief the vendee is entitled to under these circumstances,) which is well sustained by the authorities. What pretence can the vendee have to claim the interference of this Court, when he rushed into the difficulty with a full knowledge of the vendor’s title, and without fraud or circumvention having been praticed against him *1*In such case he must rely on his covenant of warranty at law.

But the complainant claims to be relieved" on the ground of his ignorance of law, for ignorance of fact it certainly was not. Certainly, as a general rule, ignorance of law does not excuse or entitle one to relief. There are some exceptions, where ignorance of law and ignorance of matters of fact are mixed up, in which parties have been held entitled to relief. And a distinction has been taken between ignorance of law a°d a mistake of law; *Lawrence*v. *Beaubien, Lownes*v. *Chi-solm, Tunno*v. *Find,*and the latter held, under- the circum*179stances of the case first cited, to entitle the party to relief. The distinction there drawn is exceedingly nice and metaphysical. I cannot say that the conviction of my judgment fully acquiesces in the result of the reasoning in that case. Be that as it may, the case is no parallel to this. It certainly would not do to apply the doctrine of *Lawrence*v. *Beaubien*to a case like the present, where the difficulty has arisen from the erroneous construction of a will. It would be mischievous in the highest degree for this Court to decide that an ignorance of the law, founded on the improper or erroneous construction of a deed or will, would entitle a party to be relieved from his contracts, made in conformity with such erroneous construction. It surely would be a novel and startling doctrine, that a party should be allowed to come into this Court, and say, I made a contract, on the supposition that the deed (which I saw,) would admit of another than what turns out to be the true construction; my lawyer thought thus, and so, I have acted on his advice and have thus got into a difficulty, and am entitled to be relieved. I need not pursue this theme farther. In no point of view, in which the complainant’s case can be viewed, is he entitled to the interposition and aid of this Court.

2 McCord’s & 455.

The bill is dismissed with costs.

GROUNDS OF APPEAL.

From this decree the complainant appealed:

1. Because it was not only proved, but admitted, that the complainant purchased the land described in the bill, only after he had been deliberately advised, by counsel learned in the law, that the defendants William Washington and his wife, and the trustee, James S. McPherson, had the power to sell the said land, and could convey an indefeasible right thereto. Therefore, the complainant acted under a mistake of law, and was entitled to be relieved by a decree, at least against the estate of the trustee, and against the defendant William Washington.

*2.*Because the decree was, in other respects, erroneous, and ought to be reversed.

*B. De*Treville, far the motion.

*W. F. Hutson,*contra.

Curia, *per*

Caldwell, Ch.

While we are not inclined to disturb the principle that “ a mistake of law is a ground of relief from the obligations of a contract, by which one party acquired nothing, and the other party neither parted with any right, nor suffered any loss, and which *ex equo et bono,*ought not to be binding,” we cannot perceive the propriety of applying it to the case under consideration. The contracts in the cases of *Lowndes*v. *Chisholm*and of *Lawrence*v. *Beaubien,*in which this principle was recognized, were exe-*180cutory, and the plaintiff applied for relief in the former, and defendant relied on this ground of defence in the latter case, before the contracts were executed; in this respect they materially differ from this case; and the question is, shall the principle be extended to executed contracts ? Where neither payment has been made of the purchase money by the one party, or possession given by the other, a defect in the title to the land bargained and sold, has always been held a good ground to resist the specific performance of the contract, or to entitle the purchaser to an abatement of the price *pro tanto,*or to a rescisión of the contract. The warranty of a deed conveying the land would often be an insufficient indemnity for the purchase money if the vendee complied with his contract and was afterwards compelled to give up possession to an outstanding paramount title; but if a party, notwithstanding his being informed of the defect, should persist in the completion of his contract, pay the purchase money, accept a deed and take possession of the land, he will then be left to his *legal remedy*in the covenants of his deed, and Equity will not re^eve ^121, Even in executory contracts a purchaser may do acts that amount to a waiver of his right to raise objections to the title, and may be compelled to take such title as the ven-^01' can ma^ej without enquiry as to its validity. A bill for the rescisión of an executed contract stands upon a very different footing from one either for the rescisión or for the spe-cjft0 performance of an executory contract; for it by no means follows that in every case where the purchaser might resist the payment of the purchase money, he would be entitled, after ¿aving taken possession of the land, to rescind an execute(i contract, and recover the purchase money which he had paid. I can find no case in which this Court has entertained a bill to rescind a contract, (except on the ground of fraud,) where the parties have executed it, leaving nothing in *fieri,*and the purchaser is in the quiet enjoyment of the land— *Urmston*v. *Pate*bears a strong resemblance to this case in several points; there William Davy devised the estate in question to Sir Robert Ladbroke and Lyde Brown as tenants in common in fee, and the residue of his real estate to *his*brother William Pate, in fee; Sir Robert Ladbroke died in testator’s lifetime; and afterwards, Wm. Pate, the residuary devisee, died, after devising his estate to Robert Pate, who thought himself entitled to the moiety devised to Sir Robert Ladbroke, which had lapsed by his death, and (as he supposed) had passed to the residuary devisee, as in cases of personal property; and he accordingly joined with the persons entitled to the moiety devised to Lyde Brown in selling the estate to the plaintiff. The conveyance recited the will of William Davy, and all the subsequent instruments; and a covenant was inserted for the title notwithstanding any act done by *181Robert Pate or his ancestors, or any claiming under him or them. After the contract was completed, the purchaser discovered that Robert Pate had no title to the moiety over which he had assumed a power of disposition, but that it had descended to the heir at law of William Davy, which important point had been overlooked by the counsel of the purchaser, who must have misapprehended the law; and it is clear that his client must have bargained on his mistake; the purchaser filed his bill praying that the purchase money might be restored to him, to which the defendant Robert Pate demurred for the want of equity, and the demurrer was sustained. In that case there was as clearly a mistake in law as in the present case, but the circumstances there constituted a much stronger ground for relief than they do here; there, the heirs at law of the testator had a permanent title to a moiety of the land at the filing of the plaintiff’s bill, but here the contingency may never happen upon which the title of the purchaser may be defeated. Although contracts have been rescinded on the ground of mistake, it was said in *Whitworth*v. *Stuckey*that “ they are *not rescinded*on the ground of *mistake in relation to an outstanding*title, when there has been no eviction of the purchaser; and it would seem, that he would be much less entitled to a rescisión when he was not liable to an eviction.”

*180Margravine of Noel 1 Mad Ch. Reps. 318] Burroughs v. Saund. 170 Fleetwood v. Green, 15 Ves. 596. Plainer, l ’ John.C.R.219. Abbott v. Allen John C. R. 523.

Sug. on Vend 346. 3 Vesey, 235. 4 Com.’Dig.

*181Vanlew v. Parr et al. Rich Eq-321.

E. J. 140.

The difficulty in affording the plaintiff relief is greatly increased by there not only being now no breach of the covenants of the deed, but by the contingency that there never may be; his future right to recover damages depends upon Mrs. Washington’s dying leaving issue; if this event never happens he will have no ground of complaint.

This case cannot be assimilated to a bill *quia*timet, as it is impossible to bring the parties who may hereafter have the paramount title, now, before the Court; there is no one who can represent the children that may hereafter be born and take under the will, and to apply a remedy to such a case, would be extending the doctrine of precautionary justice beyond all precedent. This remedy appears to have been adopted in this Court for the protection of equitable rights, in analogy to certain writs used at common law, whose objects were of a similar nature. “ In regard to legal property,” says Justice Story, “it is obvious that where the right of enjoyment is present, the legal remedies will be found sufficient for the protection and vindication of that right, but where the right is future or contingent, the party entitled is often without any adequate remedy at law for any injury which he may in the meantime sustain by the loss, destruction or deterioration of the property in the hands of the party who is entitled to the present possession to it.” Here, however, the purchaser has the quiet enjoyment of the land, in which he may never be interrupted ; but if that contingency should occur, there will be *182a plain and adequate remedy at law against the vendor for kreach 0f hjs C0Venant; and the possibility or even probability of his being unable to pay the damages at a future time, cannot create such an equity in favor of the plaintiff as to bring his case within the principles of a bill *quia timet.*Wherever the purchaser anticipates the insolvency of the vendor he may stipulate for sureties to the warranty, but where he takes possession of the land, pays the purchase money, accepts a deed of conveyance, and executes the contract, he cannot call upon equity, except upon the ground of fraud, to rescind it, but must rely upon the covenants of his deed for redress.

It is therefore ordered and decreed, that the appeal be dismissed and the Circuit decree be affirmed.

JohnstoN and Dunkin', CC. concurred.

Dargan, Ch. absent at the hearing.

*Decree affirmed.*