#### *Dr. Henry D. Van Lew vs. Mary Parr and David F. Myers.*

A purchaser of land, who has accepted a conveyance and is in the undisturbed and unquestioned possession of the property, cannot, where there is no fraud or mistake, sustain a bill to rescind the contract, on the mere ground that there is an outstanding paramount title in another, by which the purchase may at some time be defeated.

The obligor of a bond held, by asking and procuring indulgence, payment of interest and other circumstances, to have waived his equity, 'as against the assignee, to be relieved from the payment of the bond.

Where property is devised to tenants for life, with contingent remainders to persons not *in*esse, the court of equity has the power, for the purpose of *322partition, on the application of the tenants for life before the coming into existence of the remaindermen, to order a sale of the fee,, and thereby bar the remaindermen. Per Dunkin and Harper, CC. and O’Neall and Wardi,aw, JJ.

*Before*Johnston, Ch. *at*Richland,

June, 1845.

*'The Chancellor.*This is a bill for the perpetual injunction of a judgment and execution at law, obtained by the defendant, Mary Farr, upon certain obligations given by plaintiff to her co-defendant, and assigned to her : and that the said obligations be surrendered and cancelled; and for general relief upon the case stated in the bill. It appears that on the 15th of November, 1836, the plaintiff, Yan Lew, purchased from the defendant, David F. Myers, a valuable tract of land in Union District, together with the corn crop of that year on said plantation, and the farming utensils thereon, for which he gave his five several bonds with sureties, each for the sum of $2000, and payable, with interest from the date of said purchase, on the 15th of November, 1837- — 8—9—40 and 41. The said vendor executed and delivered to him his deed in fee, with full warranty for the land, and by way of further securing the purchase money, Yan Lew gave him a mortgage of the same, and thereupon took possession of the premises, which he still holds. On the 16th of December, 1836, David F. Myers assigned the bonds and mortgage, for valuable consideration, to his mother, Phalby Myers, to be held by her as guardian of her daughter, Nancy Myers; and on the 11th of May, 1838, the said guardian assigned them to Joseph D. Allen, who had married her said ward. On the 30th of June, 1838, (the first of said bonds having been paid off by Yan Lew, and the interest on the four others having been paid up to the 15th of the preceding November,) Allen assigned and transferred the last four and the mortgage, to the defendant, Mary Parr, in purchase of a valuable house and lot in the town of Columbia. On these bonds thus acquired by Mrs. Parr, Yan Lew continued to pay the annual interest regularly and without objection, until the beginning of the year 1843, when he began to complain that the title to the land for which the bonds had been given, was questionable.

Upon this the bonds were put in suit against him and his sureties, and their defences being overruled, judgment was obtained and execution issued. The grounds of objection taken in the bill are:

*3231st. That at the time of the purchase, the vendor, David F. Myers, assured the plaintiff (as the bill alleges) that there were 1100 acres in the tract, and conveyed accordingly; whereas it turns out that there is a deficiency of about 100 acres.

2d. That he also assured him that there were between three and four hundred acres of forest in the tract, (“ a principal element in its value, considering its extent and condition,”) whereas he has since ascertained that there are not more than 150 acres of woodland.

3d. The third ground is to be gathered from dismembered parts of the bill, which I shall extract and put together, that it may appear in the words of the plaintiff himself.

“He received title deeds for the land with full and general warranty on the part of said Myers, and went into possession* not doubting that his titles were perfect, according to the warranty of said Myers. He has, however, since ascertained that the said Myers, notwithstanding his warranty, had no title to the land in fee simple, but only a life estate, whereby your complainant is liable to be dispossessed whenever the remainder attaches.”

- “ The said Myers did represent to and assure the complainant that his title was indefeasible and in fee; without which complainant would by no means have entered into the possession.”

*“*The suspicions of complainant were first excited, and he was put upon inquiry as to his title, by hearing that sales made by said Myers, under similar circumstances, had been set aside, as fraudulent and void ; and it turned out, and so this complainant alleges the fact to be, that the tract purchased by your orator was a portion of the estate of the late Col. David Myers, devised by him to certain persons for life, with remainder over in fee.”

“ Your complainant, it is true, has understood and believes that some order or decree in equity had been obtained for the sale of the land ; but he is advised that such order can only apply to the life estate ; the remaindermen not being in esse, their rights could not be adjudicated. The pretended sale, therefore, of the fee simple to your complainant was fraudulent and void.”

“ And this complainant further shews that the consideration agreed to be paid by him was full and ample for the fee simple: that the title in fee simple alone induced him to make the purchase ; and that but for the representations that the title was thus full, he would not have entered into the purchase.”

*324We have now before us the several grounds taken by the plaintiff in his bill, and I shall briefly dispose of the first two of them before stating the case made out at the hearing in relation to the third; which indeed involves the merits of the case.

1. There is no other evidence respecting the representations made by Myers of the aggregate contents of the tract of land, than what is contained in the deed, which is a conveyance of 1100 acres, more or less : nor is there any evidence that there is, in fact, less than 1100 acres in the tract. Therefore, without adverting to the principle,. that the court of law was competent to have made an abatement for the deficiency, if any, and that its judgment concludes this court on that point, it is apparent, that if the point were open, and if evidence were admissible in the face of the deed, the allegation in the bill is unsupported and must fall.

2. There is evidence that the defendant, Myers, represented the tract to contain about three hundred acres of forest. Whereas the surveyor, Gibbes, has ascertained that there were but 116. But the plaintiff does not, in his bill, put this upon a ground entitling him to a rescisión. He says that considering the extent and condition of the land, the woodland it was represented to contain, was an important element in the value of the tract; and this maybe true, while at the same time it might not form the inducement to the contract. That it did not, in fact, form the inducement, and that Dr. Van Lew did not consider such a proportion of land in woods essential to the tract, is proved by the fact, that after he took possession and was enabled to form as accurate an opinion of the extent of the forest as his vendor, and had as good reason to know that there was less than even 200 acres of it, he himself cm down 81 acres, and reduced the woods to 35 acres. The retention of possession after these discoveries, and especially this waste, is a waiver of the ground of disappointment; for surely it will not be contended, indeed it *was*not contended at the hearing, that a purchaser shall be at liberty, after deliberately destroying more than two-thirds of what he considers an essential part of his purchase (and of which his complaint is that there was already too little) to throw the bargain back upon the hands of the vendor.

Under these circumstances, the most that could be made of this deficiency, would be an abatement of the price. Even that could not be had; because all the representations and stipulations which the parties intended to1 bind them, are included in *325the deed, and which alone, and not parol, is the evidence of the bargain. Nor is this all. The abatement, if one were claimable, is concluded by the judgment at law.

I would just observe, although it does not concern us here, that if we could have taken notice of this matter of abatement, the sum to be allowed for it could not have been measured, as the witnesses seemed to measure it, by the value per acre of the woodland now left, but by considering what value the 300 acres (the number represented) would have imparted to the tract, and what injury the deficiency has occasioned to the whole body of land. We all know that the relative value per acre of woodland to the rest of the tract is enhanced just in proportion to the extent of the clearing. The 116 acres of forest which Doctor Tan Lew found on his purchase were worth, probably, double per acre what they would have been, if there had been 184 more by the side of them, so as to make up the 300 which he expected : and to allow for the 184 which were lacking at the rate per acre of the 116 which were found, would, in that case, amount to paying the purchaser twice over for his disappointment. The truth is, that when a tract has reached the point of being over cleared, while the value of the remaining woods is enhanced per acre on the one hand, by every acre that is after-wards cut down, that of the cleared land is diminished on the other. These two items are to be set off against one another, and the result is the measure of the loss; and it may be that it may not be so great as one might suppose. Certainly, the value of the remaining woods is not the test. The true question in all such cases is, what injury the land has sustained by the deficiency of woods; and that requires a calculation based upon all the circumstances. These observations would be of more use in a court of law, where cases often occur of part of the purchase being taken off by older title, than in this court. There I think the test of the reduction should be rather the loss which the tract sustains by the abstraction, than the relative value per acre of the part abstracted to the rest of the land.

3. The third is the great point in the case, and it is one of real difficulty. The conclusions to which I have attained, after much and anxious reflection, are not perfectly satisfactory to my own mind ; and if more time were allowed me, I would gladly employ it in further examining the bearings of the case. As it is, the exigencies of this tribunal require that I should decide, and leave myself open to any modification which my opinion *326may undergo when I shall have the assistance of my brethren, and the light of another argument, in the Court of Appeals, to which I think the importance of the case, and the principles involved in it, require that it should be carried.

It appears that this tract of land was parcel of the estate of the late David Myers, and embraced in the residuary clause of his will, which is very long, and in the following words :

“ All the rest” of my estate “ I give and devise to my children, Mary Clendenin, Claiborne Myers, Elizabeth O’Hanlon, David (F.) Myers, Nancy Myers, and Robert Myers, for life, and no longer ; and after their decease, to their children respectively, that shall attain the age of 21 years. That is to say, to each of my said children one-sixth part of the whole of my” (residuary) “ estate for life, aud after the death of any one of them, the said Mary, Claiborne,” düc. “ to his or her children then living, that may attain the age of 21 years, (the income to be applied to their education during their minority, but the principal aud all accumulations” (fee.) “ to survive to such as may attain the age of 21 years of age, and to vest in such, whether one or more, at the age of 21 years absolutely.” “But in case any one of them, the said Mary, Claiborne,” (fee. “should die without leaving issue that shall attain the age of 21 years” “ I give his or her part” “aforesaid, to such of them, the said Mary, Claiborne,” (fee. “as may be then living, and to the issue of such as may have left issue then living, to and for the same estates,” “ and subject to the same limitations as the original shares : — (the issue of a deceased child to take in the order of representation”) “ and if but one of them, the said Mary, Claiborne,” (fee. “ should leave issue that shall attain the age of 21 years, I give all the said residue of my estate to such issue, whether one or more, at the age of 21 years” “ forever.”

“ And it is my will that the child or children of a deceased child of any of my Said children, within the period of the foregoing limitation, shall take the share which the parent would have taken, in case such child or children be living at the time such share would have vested in the parent if living;” “ and that if any one of my said six children should die leaving,” “the child or children of a deceased child, the share which such *deceased*child would have taken if living, shall vest in “ its” “ issue at the age of 21 years, and not sooner.”

“Incase my said children Mary, Claiborne,” (fee. “should all die without leaving issue that shall attain the age of 21 years as *327hereinbefore mentioned” “ I give all the rest” “ of my estate to my cousin, Henry Myers, his heirs,” (fee. “ forever.”

In May, 1835, a bill was filed at Columbia by the late Mr. Blanding, in which Hemmingway (who had married Mrs. Clen-denin) and his wife were plaintiffs, and the executors and the other five children of the said testator above named, were defendants. In this bill, the whole will of the testator was set out, and a decree was prayed for the sale of the whole residuary estate, (including, of course, this tract of land,) and that the proceeds be invested, with permission for the six children of the testator above named, to receive the *income for*their respective lives, and then to attend the limitations over; or if any of said six children should be permitted to receive any part of the capital, “good and ample security may be given to preserve the rights of the remaindermen,” (fee.

Under some order of reference, which was not produced at the hearing, Mr. Clark, the commissioner, on the 19th of November, 1835, made a report recommending that a number of tracts of land be sold; and among them, that the one in question be sold at Union Court House, on the 14th of the succeeding month ; a consent of the parties in writing, being indorsed on the report, it was confirmed by Chancellor DeSaussure on the same day.

The land was accordingly sold on the day appointed, to one Wm. Infurger, for $2600, by Mr. Clark, who reported the sale, and it was confirmed by Chancellor Harper.

Infurger conveyed to David F. Myers, and he to the plaintiff, as I have already stated. What disposition has been made of the proceeds of the sale, was not shewn at the hearing. David F. Myers resides out of the State, and was stated to be insolvent. I do not think it necessary to enquire whether the contingent re-maindermen, who were not and could not be parties before the court, will be barred by the judicial sale of their interests, even if it had been made distinctly to appear, as I suppose the fact to be, that the sale was of the fee, and included their interests; such an enquiry could only be necessary for the purpose of ascertaining whether the title of David F. Myers was perfect, and "in the view I take of this case, that is an immaterial point; besides, an opinion expressed here of the goodness or insufficiency of the title, would answer no valuable purpose. It would not make it good or the contrary. The remaindermen would not be .concluded by anything I • might think or say, and as 1 could *328pronounce no effectual judgment, I would not willingly be instrumental in deceiving any purchaser (should it eventually become necessary to order a sale of this land) by expressing an opinion that the title is good, when it may be bad, or in injuring the marketable value of it, by expressing an opinion that it is bad, when it may turn out to be good.

Whatever may be the result, one thing is clear, that the court is in no wise responsible for the loss of the fund arising from its sale, if indeed it has been lost; for it is perfectly palpable to every man of experience, whether belonging to the profession or not, that it is in vain to expect of any human tribunal, a vigilance that shall be able to detect or arrest proceedings carried through by the consent of all parties before the court. I tremble, whenever I see in progress what is called a family arrangement ; and I have struggled for 15 years, with an anxiety and with a sincerity of effort which I feel has not been appreciated, to so regulate the enterprise of counsel, and the impatience of interested parties, as to prevent losses to widows and orphans interested in estates, from causes to which their eagerness has blinded them. It cannot be done ; and the result of this case is calculated to shew the value of that rule of practice, which declares that orders taken by consent, are not the orders of the court, but of the parties who take them; that they must be responsible for them, and must not venture to take any, the consequences of which they will not be content to abide by. It is plain, from the bill which led to the sale, that the able and conscientious solicitor who filed it, had prepared a scheme, which, while it would have subserved the pressing interests of the life tenants, would, had it been carried out, in all human probability, have effectually secured those of the remaindermen. But, as I suspect, the fund was intercepted before it reached the court; and, if so, put in jeopardy. My hope is that there were some further proceedings in that case, which were not brought to my view at the hearing, (becaus'e not necessary to this case) which may furnish the means to this plaintiff and his sureties, or to the remain-dermen, to recover whatever loss they may sustain from those who received or divided the proceeds of the sale.

The case of either of the real parties before me, is one of great hardship. But with that I can have nothing to do. I must decide the case upon general principles : such as I think are sustainable by the law, and calculated in their bearings to produce just consequences.

*329The plaintiff has gone into possession under an executed conveyance ; and both his title and his possession are and have been undisturbed, and may ever remain so.

He has materially affected the value of the land by nine years culture, and by clearing away two-thirds of its forest, which, according *to his own*opinion and that of the witnesses, was already too scanty.

If his occupancy was taken, and his culture carried on, in ignorance of the defects of his title, as they may have been, still the utmost that could be made of the circumstances would be that they raised an equity on his part to be relieved of his purchase. But this could never be allowed to the injhry of the opposite parties, or at the expense of an equal equity on their part.

It is not enough, that one who has gone into possession, and especially one who has accepted a conveyance, may have been ignorant, or was actually ignorant, of any flaw in the title. If he had the opportunity to investigate, and did not investigate it, this is pretty clear evidence that his reliance was upon the warranty in his deed, and he cannot reasonably complain that his remedy should be restricted to the relief which can be obtained from the actual form of his contract. In this case, it appears that the plaintiff had lived tor a number of years in the neighborhood of the land, and must have known that it was parcel of Col. Myers’ estate. It was a question which common prudence dictated, to enquire how David F. Myers became entitled to it; and if he neglected to do so, or if, having done so, he disregarded the information, or drew the conclusion from it that the title was good — in neither of these cases has he any right to ask the interference of this court, to give him a better remedy than he selected for himself, in the warranties of his deed. There is nothing in the bill which necessarily imports that the plaintiff was ignorant of the state of the title which he bought. What he alleges is that he has lately been led to suspect the validity of his title, by hearing that similar titles have been avoided. The strict, import of this is, not that he was ignorant of the state of the title when he purchased, but that circumstances have led him to doubt the correctness of the opinion formed upon it. It may have been the united opinion ofTnfurger and Myers and the plaintiff, composing all the persons who have held under the judicial sale, that the sale carried all the interest in the land, and created a good title in fee. There is no ground from the bill to suspect that Myers had any better knowledge of the legal inva*330lidity of his title than the plaintiff, or that in affirming that he had a title in fee (as indeed he had from Infnrger) he was guilty of *mala Jides.*

These questions were discussed in *Stuckey*vs. *Whitworth,*and in *Briggs*vs. *Gillam,*although my concurrence in the former of these cases was upon the ground that the objection tO'the title was invalid, upon the plaintiff’s own shewing; so that it is not clear that there was a majority of the court upon the other point; yet the more I have considered the matter, the m,ore have my doubts tended to give way to the reasoning of the Chancellor who delivered the opinion of the court, and to the authorities cited by him, (and which I need not refer to here,) and although I am not yet fully satisfied, my persuasion is sufficient to govern me, at least upon the circuit.

If, therefore, the case solely concerned the defendant Myers, I should feel constrained (but reluctantly in that case) to dismiss the bill. The plaintiff would not be entitled to any remedy outside of the warranty of his deed ; and especially would he not be entitled to throw back his bargain in its wasted condition»

But the case stands somewhat better for Mrs. Parr. It is in proof, that when the bonds were tendered to her, she caused her agent to consult a gentleman very intimate with the plaintiff» That she was assured the transfer would be not only unobjectionable, but desirable to Dr. Yan Lew. And although it does not appear that this gentleman had any authority to contract for the doctor, it is in testimony that he made certain stipulations for him, without which the bonds would not have been purchase ed ; and that the doctor, upon being informed of them, acknowledged them to be binding on him, and conformed to them. Besides all this, it must be borne in mind that Yan Lew had been then in possession of the consideration of the bonds for one or tyro years, and had paid off one of the bonds, and the interest on the others.

These were circumstances to produce the impression on Mrs, Parr, that the bonds were good; notwithstanding the acknowledged doctrine, that as assignee of unnegotiable instruments she must take them subject to all the equities between the original parties.

But after Mrs. Parr received the bonds, the plaintiff continued to pay the annual interest for five years. This again must have tended to lull her into security.

Upon the whole, I conclude that the till cannot be supported, *331and it is ordered that the injunction heretofore granted, be dismissed, and that the bill be dismissed with costs. But as it may become necessary upon some future occasion to agitate this matter between the plaintiff and the defendant Myers, in connexion with other persons, it is ordered that, as to him, it be dismissed without prejudice.

The complainant appealed, on the following grounds :

1st. Because the Chancellor erred in not perpetuating the injunction.

2nd. Because his Honor should have ordered the bonds of the complainant to be cancelled.

*Waddy Thompson and*Caldwell, for the appellant.

*TV. F. De Satis sure and*Tradewell, contra.

*Curia, pet*JohwstoN, Ch.

This cause has been extensively argued both in the Court of Appeals in Equity and in this Court, and has received that deliberate consideration which its importance demands ; and if, any doubts remain in the mind of the Court, they relate to points not necessarily affecting the result of the case. The duty has been assigned me of stating the conclusions ,to which a majority of my brethren, in this court of ultimate resort, have come: and 1 enter upon it with unfeigned diffidence, as well on account of the difficulty of the questions, as the shortness of the time allowed for discussing them in the judgment I am about to deliver.

There are three great questions involved in this appeal; — in the argument of which, counsel have accumulated cases to such a degree that if the court should undertake to notice them all specifically in its judgment, the task would be overwhelming and oppressive, and would effectually exclude the other causes before us from that share of our consideration to which they are justly entitled. All that can be expected, is, that we should carefully attend to principles deducible from the cases quoted- — - occasionally glancing at such of the cases, themselves, as seem to be most prominent in their respective classes, and to indicate most clearly the doctrine to be gathered from the current of decisions. And let it be remembered that it is not from anomalous cases ; — cases pressed to an extreme on the one side or the other j — -or led, by particular circumstances, out of the general range ; — that the leading doctrines of law are to be learned. It is the broad current which carries the acknowledged principle.

The questions for our consideration are : 1, Whether the title ■of David F. Myers, who conveyed to Van Lew, was a good title *332in fee. 2, If not, then, whether its defects are such as, upon general principles of equity, entitle Yan Lew to a recision. 3, If, upon general principles, he is entitled to this relief; then whether he is entitled to the relief he seeks against Mrs. Parr.

These three questions will be taken up in their order.

1. Had David F. Myers a good title in fee ? In the opinion of a majority of my brethren the case will eventually turn on the two remaining questions, and, therefore, we do not deem it necessary to conclude any thing on this point; although we have been pressed by both parties to determine it. The plaintiff who has purchased a title, one of whose links is a decree of the Court of Equity, insists, that if that link is defective and the chain broken, the same court which, as he conceives, imposed the grievance upon him, is bound to relieve him from it. On the other hand the defendants contend that consistency requires at the hand of the court that it should uphold its own decree, and declare the title good.

But it is a plain misapprehension to suppose that the court is at all responsible for the effect or operation of its decree : or that it is at liberty, upon any consideration whatever, to pronounce it either more or less effectual in law than it really is. The question is as to the *legal validity*of the title : and every link in the chain is to be decided upon as a court of law would determine: and when the question arises in a case proper for equity cognizance, and is necessary to be decided in the case, her courts are bound by the plainest principles and the inexorable obligations of duty, — let the consequences be what they may, — to adjudicate it according to law and the truth.

There are members of this court who believe the title good : and, perhaps, may express that opinion : — and if they do, it will be found that their reasons and the authorities upon *which*they rely are very strong. Certainly *they*are sufficient to produce doubts in our minds, and to restrain us from coming to an opposite conclusion. But while it would afford us the utmost pleasure if we could unhesitatingly declare that the decree of 1835 carried the fee to the purchaser; — we do not see enough to satisfy us that such declaration would be found true when the contingent remaindermen under David Myers’ will come to put it to the test.

This is, a question which we do not intend to discuss, because we would not unnecessarily disparage a title which may possibly *333be found good. But we may be permitted to offer a very few observations to justify the doubts we entertain : and to shew why we cannot relinquish them.

The general rule is undoubted, that a decree or judgment binds none but the parties before the court and their privies : and, of course, where property is sold under such adjudication, the purchaser acquires nothing beyond their interests. The parties before the court in this instance were the life tenants under the will; but the contingent remaindermen, (according to the averments in the bill,) were not *in esse,*and, of course, were not parties. There are cases in which parties not before the court, and even not *in*esse, may be bound by its judgment: but those are cases, it seems to us, where there is a privity of estate between the actual parties and those excluded from the records in virtue of which the former, — being clothed, for the present time, with the interests of the latter, — may be held to represent them; — as in estates tail, and the like. But, in the case before us, there was no privity of estate whatever, between the life tenants and remaindermen. The latter were to take nothing from the former by inheritance ; but were to derive all their interests in the property immediately from the testator as purchasers.

These observations might be extended, and other views of the subject might be taken; but, as I have said, it is not our intention to discuss the point under consideration.

But if we could overcome our doubts and pronounce the title good, that would terminate this cause, without relieving the plaintiff from the grievance of which he complains. We could not make such an adjudication without committing the identical fault which, in his apprehension, vitiates the decree of 1835. If the contingent remaindermen are concluded by that decree, then his title is good, and he has no need of the relief he seeks. But if they are not concluded by that decree, on the ground that they were not parties to the suit, the same objection would apply in this case and would deprive our decision of judicial authority. He would be left in the same condition as before. It is necessary to his case, therefore, that the title under which he holds should be defective and invalid. For the purpose, therefore, of considering the remaining questions in the case, it will be assumed that his vendor held under a defective title. And this brings us to the next question in the case ; which is—

2. Whether, upon a supposition that his title is invalid, the plaintiff has a general equity to be relieved of his bargain ?

*334This is a case of conveyance with warranty actually executed and accepted, and possession taken and retained by the purchaser, who ever has been, and still is, in the undisturbed and unquestioned enjoyment of the property bought by him: and the question is whether he is entitled to a recision of his bargain on the ground of danger apprehended from the defects of his title.

This is the question for the more authoritative decision of which this cause was removed into this court. The court has formed a conclusive opinion upon it; in which, my former doubts being removed by the argument, — I am enabled to concur.

It is believed that no precedent can be found, in any quarter to which we are accustomed to look for authority, where a party, in the *full enjoyment*of the property purchased by him, has been relieved, in equity, from an executed contract, untainted by fraud, or such mistake as amounts to fraud, in the equity sense of the word.

This is not a case of *executory*contract (many of which have been quoted to no purpose,) where the purchaser is in possession, under circumstances not amounting to a waiver of objections to the title; and where, if the vendor comes for a specific execution of the contract, the purchaser is entitled to an inquiry into the title before he accepts it.

It is needless to inquire what circumstances have been held to be evidence of a waiver of objections in such cases. Generally, if the possession is taken in pursuance of the contract, by the terms of which the inquiry into the title is nevertheless kept open, it is no waiver. So, again, if notwithstanding the possession the parties continue to treat of the title. The subject is discussed by Sir Thomas Plumer, in *Burroughs vs.*Oakley, (3 Swanst 168.)

But the material point is, that it has been repeatedly held that even where the contract is still executory, the purchaser may, by his acts, be deemed to have waived his right to object, and be compelled to accept such title as the vendor can make, without inquiry into its sufficiency. This is recognized in the case of *Burroughs vs. Oakley*already referred to. In *Fleetwood vs. Green*(15 Ves. 594,) where, upon an agreement to convey realty, stipulating that the purchaser should be let into immediate possession and pay the purchase money at the expiration of 12 months, he was let into possession accordingly and an abstract of title furnished him, to which he made no objection, *335but retained the possession, treating the premises as his own, for Upwards of four years, without fully satisfying the interest accruing on the purchase money: a reference as to the title was refused, and a specific performance decreed against him. In *Margravine of Anspach vs. Noel*(1 Mad. R. 316) the circumstances were very similar. The purchaser was let into the possession, in pursuance of the terms of the contract, within a short time after its execution, and received an abstract of title within a month afterwards, to which he made no objection until about two years after it was delivered to him. In the meantime he made alterations in the premises and let them ; and had written a letter offering excuses for delaying payment of the purchase money. A specific execution of the contract was decreed, without inquiry into the title. The Vice Chancellor relies on the alterations and letting of the premises, and upon the defendant’s letter, as presumptive evidences of his approval of the title: and observes *“*It is true, the defendant by his answer says he did not mean to waive his objections to the title : but if a party acts in a manner from which it may be implied he does not mean to object to the title, he cannot afterwards, at a distance of time, when evidence, perhaps, is lost, insist upon objections to the title. Objections to a title should be made with due diligence. Here there are many acts from which an implied consent to the title might be inferred : — the correspondence — the alterations — and the letting of the premises.”

These two uncontradicted cases, out of the many which have been quoted, may suffice for the principle. Grounding themselves upon these decisions, the counsel for the defendants pressed the inquiry, which was not answered in the argument, and, it seems to us, cannot be answered : — is not a purchaser as much bound to abide by a title, the conveyance of which he has actually accepted, as to put up with it when the conveyance is forced upon him on the mere presumption that he has waived objections and agreed to accept it? Is a party more bound by his agreement than his acts *? ,*

It may be permitted us to ask upon what ground does the court, in the cases of executoryrcontracts, of which we have been speaking, compel the purchaser to take the vendor’s title ? Certainly upon no other than that he has agreed to take it. It was his *bargain.*And when the court compels him to perform it, and to accept the conveyance, whether the title be good or bad, is this done, to the intent that he is to depend upon the cove-*336wants for which he stipulated, as his selected means of redress for any loss he may sustain : — or is it done, (as the principle of this bill imports,) with a secret reservation in the mind of the court, that the identical defects in the title, into which it will not even look, when it compels the purchaser to take it, may be immediately used by the purchaser as a ground to rescind the contract, to reverse the decree and to return the title ? As said by Chancellor Harper in *Whitworth vs. Stuckey*(1 Rich. Eq. 407) “ such an absurdity in the law can hardly be supposed, as that a party should be compelled, by the court, to execute a contract, when he might sustain his bill to rescind it, if it were already executed.”

Having seen what inferences should be drawn from the cases of executory contracts, let us now come immediately to those upon contracts executed.

The discussion might be rested on the case of *Whitworth vs. Stuckey,*just mentioned-to which nothing can be added on the scoie of reasoning, and very little on that of authority.

The case of *Bumpus vs. Platner*(1 Johns. Ch. 213.) The bill was for an injunction against proceedings to foreclose amort-gage. The premises had been purchased by the mortgagor who received a conveyance, and mortgaged the premises to secure the purchase money : and the ground of the bill was that *there*was a total- defect in the title, and a failure of consideration which entitled him to relief. He was still in the possession. There were allegations of fraud in the case, but they were not proved to the satisfaction of the court. Chancellor Kent observed, “ It is said to be very difficult to extract from the books what the rule of equity is upon this point of failure of consideration, after the agreement is executed ; (1 Fonbl. 363,) but I apprehend it may be safely said, that there is no case of relief on this ground, when possession has passed and continued, without any eviction at law, under a paramount title. Plainer conveyed to the plaintiffs with covenant of warranty, and he is bound to defend their title at law : and *non constat*that he is not able and willing to do it. There was a case under Lord Nottingham (2 Ch. Ca. 19, *Anon.)*in which the purchaser was relieved from the payment of the purchase money ; but he had already lost the land, by eviction, under a better title. If the title fails in this case, the plaintiffs can resort to the covenants in their deed for their indemnity. I consider an eviction at law an indispensable part of the plaintiffs’ claim to relief here, on *337the mere ground of failure of consideration. The proof is that they have been in possession of the land ever since the purchase from Plainer, (and which was near 20 years ago,) under that title and no other. It would appear indeed that McDougal, under whom Platner claimed, had previously sold to one Weath-erwax, whose estate was afterwards forfeited to the people of this State. That may be the better title ; but it cannot be tried here upon this bill.” “ It would be without precedent, and dangerous in principle, to arrest and bar the recovery of the debt, while the purchaser is still in possession under the purchase deed, and there has been no eviction at law.”

In *Abbot vs. Allen*(2 Johns. Ch. 519) the same point was again brought under discussion, and the Chancellor re-examined the doctrine with an extensive reference to the authorities. He said “ If there be no fraud in the case, the purchaser must resort to his covenants, if he apprehends a failure or defect of title, and wishes relief before eviction. This is not the appropriate tribunal for the trial of titles to land. It would lead to the greatest inconvenience, and perhaps abuse, if a purchaser in the actual enjoyment of land, and when no third person asserts, or takes any measures to assert, a hostile claim,' can be permitted, on suggestipn of a defect or failure of title, and on the principle of *quia timet, to*stop the payment of the purchase money, and of all proceedings at law to recover it. Can this court proceed to try the validity of the outstanding claim, in the absence of the party in whom it is supposed to reside, or must he be brought into court against his will, to assert or renounce a title which he never asserted, and perhaps, never thought of? I apprehend there is no such practice or doctrine in this court: and that a previous eviction at law is, as a general rule, indispensable.” “ The case of fraud is an exception : and it seems to be admitted by Mr. Butler (note 332 to Co. Lit. 384, a,) that if the purchaser was imposed on, by any intentional misrepresentation or concealment, he may have redress here, in addition to and beyond his covenants.” “I know of no case in which this court has relieved the purchaser where there was no fraud ánd no eviction. All the cases I have looked into proceed on the ground of failure of title duly ascertained.” “ To sustain the injunction would be assuming the fact of a failure of title, before eviction, or trial at law : and which this court, as not possessing any direct jurisdiction over legal titles, is not bound or authorized to assume. This court may, perhaps, try title to land *338when it arises *incident ally:*bnt it is understood not tobe within its province, when the case depends on a simple legal title, and is brought up directly by the bill. The power is only to be exercised in difficult and complicated eases, affording peculiar grounds for equitable relief.”

For the cases referred to by the Chancellor in support of his opinion, we refer to his decision, as reported.

No case of our own has been pointed out in which equity has ever undertaken to rescind an executed contract, while the purchaser was in the enjoyment of the premises, on the mere ground of defect of title. It is said that there are cases on our records where that court has *refused*to rescind under such circumstances ; but the research of the bar has not made them accessible to us. It is enough that no case exists among us in which a recis-ion has been decreed, under the circumstances stated.

Nor is it known that there is a precedent for such a decree in England. We have seen that it is opposed to principle and to the test of American authorities on the subject. It is but reasonable, then, to conclude that the practice and doctrine contended for by the plaintiff is unknown to equity jurisdiction, unless some clear precedent be produced to support them. The plaintiff’s counsel, feeling the force of this, has undertaken to produce two English cases, but neither of them sustains him.

The first is the case of *Edwards vs. McLeay*(Coop. Ch. R. 308 : S. C. upon appeal 2 Swanst. 287,) referred to by Chancellor Harper in *Whitworth vs.*Stuckey, and by Chancellor Kent in *Abbot vs. Allen.*The case was put upon the ground of fraud alleged and proved : and so it has ever been understood.

The case was that the vendors sold and conveyed to the ven-dee in fee simple a messuage, stables, coach-house, lands, (fee., at Clapham, representing themselves to have full power and authority to dispose of the fee simple and inheritance. Soon after the completion of the purchase, the vendee discovered that part of the fore-court, and of the driving-way, or road leading up to the house, together with the whole of the ground upon which the coach-house and stables stood, had been formerly part of Clap-ham common, and were many years before enclosed and taken from the common. The bill charged, and it was proved to the satisfaction of the court, that the vendors were aware of these circumstances, which the vendee could not have discovered from the abstract, and concealed it from him. Sir Wm. Grant said, *fl*It has never been laid down, that, on the subject of title, there *339can be no such misrepresentation as will give *the*purchaser a right to claim relief to which the covenants do not extend.” *“*Whether it would be fraud to offer as good a title which the vendor knows to be defective in point of law, it is not necessary to determine. But if he knows and conceals a *fact*material to the validity of the title, I'am not aware of any principle on which relief can be refused to the purchaser.” . “ The defendants object to the relief sought by the bill, that the plaintiff is premature in his application, inasmuch as he has not yet been evicted, and may never be evicted. But I apprehend that a court of equity has quite ground enough to act upon : and that it ought now to relieve the plaintiff from the consequences of the fraud practised upon him.” Upon the appeal, Lord Eldon affirmed the decree, and observed, “ The case resolves itself into this question ; whether the representation made to the plaintiff was not. in the sense in which we use the term, fraudulent *1*lam not apprised of any such decision ; but I agree with the Master of the Rolls, that if one party makes a representation which he knows to be false, but the falsehood of which the other party has no means of knowing, this court will rescind the contract.” This case needs no comment.

The other ease is that of *Hitchcock vs. Giddings*(4 Price R. 135; *2*Excheq. R. 55,) decided by L. C. B. Richards. The purchaser *bought the interest*of his vendor in a remainder in fee, expectant on an estate tail. At the time of the contract, the tenant in tail had actually suffered a recovery, of which both parties were ignorant till after the conveyance had been executed and an absolute bond given for the purchase money. The court rescinded the contract, on the ground of mistake, although there was no fraud from knowledge, or concealment of the fact, on the part of the vendor : — resting the decree on the equity that the vendor had no interest in the subject matter at the time of the sale.

This case has been much relied on in argument here, as proving, 1st. That mere failure of consideration is ground for a re-cision in equity, and 2dly. That the recision will be decreed before eviction. But such a construction perverts the plain principles of the case.

The case is put expressly by the judge and the counsel for the plaintiff in the cause, upon the ground of mistake, amounting in the equity sense of the term to fraud. The court admitted, that if the agreement had been for a mere contingency, it might not *340be disposed to assist the plaintiff. But its interpretation of the contract was that the parties “agreed for the sale of the remainder, subject to the *subsequent*possible contingency of there being no recovery suffered.” The parties manifestly contemplated the fact that a contingency existed at the time of the contract: and were mutually mistaken in that fact, upon which the whole bargain rested. Then, as to the eviction: the objection is merely verbal. Eviction means the ousting of a party from the actual possession of property of which he is in the enjoyment: but this purchaser, from the very nature of his interest, never had, and never could have, the possession, and never could be evicted: and to require eviction, as the prerequisite of a recision in such a case, would be a palpable violation of the spirit of the rule.

Now, here are the cases which are supposed to disprove the generally received doctrine, that a party shall not be allowed *to*rescind a contract while in the actual enjoyment of its benefits, unless there has been a plain mistake in the case, or he has been deceived and defrauded. Audit may be safely asked, do they disprove it? Would it be wise or safe, upon such authority to break down a doctrine clearly recommended by justice, and more clearly by sound policy ? And what objection can be urged to the doctrine *1*Why should it be set aside ? It has never been denied that men should be allowed to make such lawful contracts as they please : and surely when they have contracted fairly and understanding!y, truth and integrity, justice and law require that they should abide by them. There is no dispensing powe,r in this court, nor in any other, to setaside the obligation offair andlawful contracts ; and as the purchaser, when he has received his title, can insist on it and hold it against the vendor, however unwilling the latter maybe; so he also should be compelled to abide by his own bargain.

Arguments were drawn by counsel from a very extensive and critical examination of the law decisions of this State, to shew that as the law courts, in certain cases, allow damages upon breach of the covenants of deeds conveying land, where there has been no previous eviction ; equity should rescind the contract when the remedy at law is incomplete. No less than seventeen cases at law were quoted ; and it is plainly impossible to analyze them here. Our brother O’Neall will give his exposition of them, and endeavor to shew, that there is nothing in their doctrines inconsistent with the rule in equity as announced by us. The law courts seem to have been struggling, for years, to *341get clear of the early decisions allowing recoveries on the ground of failure of title without eviction : and they appear to have settled at last in this result: that in actions brought for the purchase money, the purchaser may make a clearly subsisting outstanding title the ground of abatement for the contract value of such part of the premises as it may cover. It has been proposed, as a just inference from this, that where, from the remoteness or contingency of the outstanding title, law cannot give damages, equity should interfere and rescind the contract. But apart from the incompetency of a court of equity to try the validity of the outstanding title, is it not obvious that the remoteness and contingency which render it inappreciable at law, must necessarily make it equally uncertain what degree of importance should be attached *to it as*a *ground for*recision in equity ? If the defect of title be such as authorizes a court of law to interfere ; be it so. That is one of the advantages of his covenants to which equity leaves the purchaser. But, if it be of such a nature that law declares him entitled to no relief in virtue of the security he has himself selected, as was the case in this instance, it seems a strained, inference that that declaration entitles him to relief elsewhere.

If the general doctrine, that a purchaser is entitled to relief on the score of failure of title, before eviction, has been found so pernicious at law, as to induce her courts to narrow it down to special instances, excluding such as the present, this proves that it should not be extended to equity by giving her cognizance of the repudiated cases. The plain truth is this ; there is no conflict of views between the courts ón this subject. When a *party has*a case for damages he resorts to law upon his covenants : and when ho has a case for recision, (which is a very different thing) and brings it in equity, he will be relieved.

There is but one more consideration under this head. It has been attempted to be shewn that unless there be fraud or mistake in this ease, this plaintiff is not entitled to maintain his bill. Then, is this a case of either fraud or mistake *1*

The remark was made in the circuit decree that no charge of fraud is made in the bill. The charge, as observed by Chancellor Harper, in *Whitworth vs.*Stuckey, “ seems somewhat evasive.” It is a clear rule of pleading that he who charges fraud, should so set out the facts as that the fraud may be inferred from them. It is not said in the bill that the vendor concealed from the purchaser, or that he, the purchaser, was in fact *342ignorant, that the will of David Myers, with the decree for the sale of the property, constituted the vendor’s title : and if he knew of these, *“*it is immaterial that either or both of the parties put a wrong construction upon them: or if the vendor represented to the purchaser, in the strongest manner, that his title was good, only expressing his own opinion or conviction on the construction of the papers, this would be no fraud.” There was no proof whatever on the subject.

Then, as to mistake. None was alleged, and none proved. Was the plaintiff ignorant of the will and the decree? It is not so alleged; and from the facts appearing at the trial, it is not probable that he was. And if he was not, what other mistake could there be in the case except a mistaken conclusion as to the operation of the instruments *1*It is well settled that the means of knowledge are considered in law as amounting to knowledge. Parties must be diligent; and if they indolently neglect to look into and attend to their^own interests, it will require strong circumstances to entitle them to relief from the consequences of their negligence. No other rule can be safely substituted in law. It was Van Lew’s duty, as it was his interest, to look to his vendor’s title before he accepted it. Abstracts of title are not in use among us: but no prudent man takes a conveyance without satisfying himself that there is either an unbroken chain of title or equivalent statutory possession. He who looks to an abstract is bound, if he accepts a conveyance under it, to abide by all the defects apparent on the abstract: and the same must be the rule if he looks to the title deeds. It is true he is not bound by delects extrinsic to them : but the defect complained of in this case was in the chain of title itself, and not extrinsic.

3. The remaining question in this case relates to the relative equities of the plaintiff and the defendant, Mrs. Parr : and there is scarcely a division of opinion among us on this point.

When this defendant became the purchaser of the bonds, she was not merely ignorant of the existence of any equitable de-fence, but she had evidence of those circumstances which are usually regarded as waivers of objection. The plaintiff had taken a conveyance and was in possession; treating the property as his own, and even devastating it by clearing and culture. He had made considerable payments of the purchase money. When applied to through Mr. Caldwell, who, although not authorized at the time, had undertaken to represent him, he did not *343disavow his agency, but affirmed it by conforming to his stipulations. Here was an opportunity for making known his equities, and Mrs. Parr had a right to infer the non-existence of equities from his silence. Then, he applied for and obtained further indulgence; — the effect of which is stated in *Burroughs*vs. *Oakley*and *Bumpus*vs. *Platner.*It may have been his misfortune not to know the defects of his title during all this time; but neither equity nor justice require that his misfortune should be transferred to one equally entitled to protection with himself. Add to all this; — he has the covenants of his deed to resort to ; — but the loss, if it should fail on Mrs. Parr, must be borne by her without redress.

It is ordered that the decree be affirmed and the appeal dismissed.

Harper and Dunkin, CC. and Wardi,aw and Frost, JJ. concurred.

Dunkin, Ch.

Concurring entirely, as I do, in the opinion of Chancellor Johnston on the points adjudicated, I desire merely to express my own views on a question, elaborately discussed at the bar, but which it was not deemed necessary to determine.

I think that, under the decree of 1835, and the sale made by the commissioner in pursuance of it, the purchaser took a good marketable title to the premises purported to be conveyed. This is all that is necessary, and all that can be required. Absolute invulnerability can hardly be affirmed of any man’s title.

There can be no doubt that, in making the decree of 1835, the court proceeded advisedly. The will of David Myers and all the interests created by it, immediate or contingent, were brought distinctly to the notice of the court. If all the parties necessary to enable it to make a full disposition of the property were not made, it was the result of a deliberate error in judgment on the part of the distinguished counsel who conducted the cause, and the able and experienced magistrate who pronounced the decree. • The rights, especially of the contingent remaindermen, were obviously contemplated, and precautions were adopted to secure and protect them. If those measures shall have proved fallacious or unavailing (of which this court has yet no satisfactory evidence) it is a result greatly to be regretted, but which no caution or foresight in the administration of justice can always anticipate, or if anticipated, certainly prevent.

*344The court supposed that all the necessary parties were before it, and the error, if it exist, was not without high authority for its sanction.

In *Giffard*vs. Hort, 1 Sch. and Lef. 408, the practice is thus stated by Lord Redesdale ; Courts of Equity have determined, on grounds of high expediency, that it is sufficient to bring before the court the first tenant in tail in being, and, if there be no tenant in tail in being, the first person entitled to the inheritance, and, if no such person, then the tenant for life; and as Courts of Equity constantly act, on these parties being before the court, in any thing relating to the whole estate, I do conceive that the decree in the Court of Exchequer, decided against the rights of Sir Duke Giffard and his son Thomas, a minor, and that that is a decision binding the right.” “ Where all the parties are brought before the court, that can be brought before it, and the court acts on the property according to the rights, that appear, without fraud, its decisions must of necessity be final and conclusive.”

This doctrine was afterwards incorporated into the elementary books on pleading. In Cooper, 36, it is said that “ where there is a suit respecting real estate which is settled or devised to one for life, with remainder to the first and other sons in tail in the common way of limiting estates, all the persons interested, as far as the first tenant in tail in existence, must be made parties. But a remainderman expectant upon the estate tail need not be made-a party.” “ It has been repeatedly determined,” says this author, “ that if there be tenant for life, remainder to his first son in tail, remainder over, and he is brought before the court *before*he. has issue, the contingent remaindermen are'barred, and this is now considered the settled rule in equity, and .of necessity.”

No case, and no dictum, has been cited, which controverts or calls in question the authority on this point *of*the eminent equity pleader, Lord Redesdale.

In cases of partition it is very well known that the practice of the English Chancery differs from our own. Partition is there effected by directing conveyances to be made by the parties themselves, and where an infant is a party, as the court has no authority to compel an infant to execute a deed (except an infant trustee under the statute of Anne) the conveyance is necessarily delayed until he becomes of age, and he is allowed a day to show cause. But our practice resembles rather the proceedings at law, where the judgment in partition, with possession, constitute, *345of themselves, a judicial title. It has never been the practice to allow a day to the minor after he becomes of age to show cause against the judgment in partition. In *Pell*vs. Ball, 1 Rich. Eq. 361, a sale was ordered for the purpose of partition of the entire real estate, against the remonstrances of the guardian of the infant, and the judgment was sustained by the Court of Appeals.

*Gaskell*vs. Gaskell, 6 Simons, 643 (9 Eng. C. C. R. 448) was a very recent decision of the English Court of Chancery (1836) in which eminent counsel were concerned for the parties. The plaintiff, Milnes, was tenant for life with remainder to his first and other sons in tail of an undivided moiety of certain estates. Gaskell was tenant for life with remainder in the same manner of the other moiety. The plaintiff had no issue. An agreement for partition of the premises had been made between him and Gaskell, which it was the object of the proceedings to carry into effect. It was held after consideration, and upon authority, that “ the partition might very well be carried into effect, notwithstanding the plaintiff was tenant for life onlythat the decree would be binding on the sons when *in esse;*but the court directed a reference to the master to inquire and state, whether it would be for the benefit of the future issue of the plaintiff, that the agreement should be carried into effect.

It is said, with apparent plausibility, that no court should undertake to dispose of rights, however remote, or contingent, unless all the parties were before them. But the court undertakes to act on the property, and to dispose of it, and makes every provision for the rights of parties, which it is practicable to make. An inflexible adherence to any different rule, is inconsistent with the practice of judicial tribunals in any country, and would fetter estates to a degree entirely inconsistent with the policy of our laws and the habits of our people. Has it ever been doubted since *Taltarum’s case, 12*Edw. 4, that a tenant in tail, by suffering a recovery, may dock the entail and cut off all contingent remainders.2 Yet *Giddings*vs. Hitchcock, 4 Price Exch. Rep. 135, (cited for another purpose at the hearing) arose out of the fact that a contingent remainderman had sold his interest, when it was afterwards ascertained that he had, at the time, no interest, because, entirely without his knowledge, the tenant for life (between whom and himself there was no privity either in blood or estate) had suffefed a recovery. No one questions — all the authorities concur, that the Court of Chancery may dispose of the fee, having before it only the first person who has an estate *346of inheritance in the premises. According to this familiar practice, neither the contingent remaindermen, nor their rights, are before the court. Yet it is believed, that the validity of such proceedings, or their conclusiveness, has never been questioned. From the earliest period in the history of our equity jurisprudence, it has been the practice of the court to dispose of the real estates of testators, when it became necessary to resort to that fund, for the payment of debts. In most of such cases, contingencies are contemplated by the will not to arise for many years,, contingent remaindermen are provided for who are not in existence, and who may peradventure never come into existencé. It has never been supposed that these circumstances would suspend the action of the court, or invalidate the title made under a decree for sale.

The case illustrates the principle. Suppose it had been necessary to resort to the real estate of Col. Myers in the possession of his several devisees for the payment of his debts. Must the creditors wait until the contingent remaindermen, not yet *in esse,*have arrived at twenty-one years of age, before they can subject the real estate to the satisfaction of their demands? Without the aid, without the action of this court, they are entirely without remedy. A judgment against the executor would be of little avail, when the land has already been held for years by *the*heirs or devisees in their own right. See *Jones*vs. *Wightman, 2*Hill, 579; *Bird*vs. *Houze,*Speers’ Eq. 250. Any attempt to levy their execution on the lands of one, would, on familiar principles, entitle him to come into this court. Yt is true the devisee and heir are both liable at law for the debt. But would a judgment at law against a devisee for life authorise the sheriff to sell the fee simple ? That remains to be decided. Unless this court had authority to dispose of the fee simple of the estate for the payment of the debts, it is quite cleab that it could not be reached. If it had the authority not having the contingent remaindermen before the court, the validity of the title executed by the officer of the court, is not open to objection. But if the court can make a good title for the payment of debts, if it has authority, in any case, to dispose of the fee, not having those in remainder before it, the exercise of that authority in cases of partition, or for the change of property, becomes' a question of discretion, and not of jurisdiction. It is hardly necessary to say that the vigilance of the court should be more wakeful and anxious, and its interference more cautious in all cases of this *347character; nor is it perhaps too much to add that its discretion has been sometimes unwisely exercised. But this is not an argument against the authority of the court, or its jurisdiction.

But there is much reason to conclude, from the language of Col. Myers’ will, that he himself contemplated a sale of the estate. It is substantially provided that his six children should hold in severalty, their respective shares of the *residuum*of his estate, of which these premises were a part. This estate was situated, in very different proportions, not only in several diS1-tricts of the State, but in three or more different State's. In order to make partition among the six different devisees a salé was, obviously and indispensably, necessary. If there was no sale, there could be no partition. The tenants tor life alone, were *in esse.*All the tenants for life, all the heirs at law of the testator, except those expressly excluded by his will from any interest in his estate, were made parties to the proceedings. All persons having an interest, who could be made parties, were included. *Gaskell*vs. *Gaskell*is a direct authority that under such circumstances, partition would be decreed which would bind the issue when *in esse.*In that case a reference was ordered to inquire if it would be for the benefit of the future issue. In the case of *Hemingway*vs. *Myers*a reference was also ordered, which the court is bound to presume was of the same character. On the report of the master, or commissioner, a sale of the premises was directed, according to the uniform practice of the court in cases of partition under similar circumstances, and the title of the complainant is under that sale.

According to my best judgment, the court was well warranted by the practice of Westminster Hall in entertaining the proceedings, and by the laws and practice of this country in ordering a sale, and, therefore, the complainant has no cause to object to the validity of his title.

Harper, Ch. and O’Neall and Wardlaw, JJ. concurred.

O’Neall, J.

I concur fully in the affirmation of the circuit decree, on two grounds. 1st. That the decree of the Court of Equity ordering the sale of the land, renders the title of the complainant perfect, inasmuch as all the persons who had an interest in the land, who were then *in*esse, were (according to the statement in the bill) made parties. 2d. That Mrs. Parr, the purchaser of Van Lew’s bond, purchased without notice of this defence, and indeed with his assent, and has recovered a judg*348ment at law. Under such circumstances, the Court of Equity never will disturb her rights. For she has an equal, if not a superior equity to the complainant.

My present purpose, however, is more to explain the various cases decided, in the courts of law, on the question how far an outstanding title can be set up as a defence at law, than for any thing else.

The defence at law, before eviction, proceeds upon the ground that the covenant of seizin is broken by a want of title in the seller, and damages for this breach are allowed, as a discount. In the case of *Mackey*vs. *Collins, 2*N. and M’C. 186, it was held, that the warranty, in our deeds, drawn according to the Act of 1795, is both a covenant of seizin, and for quiet enjoyment, and that an action might be brought before eviction, on shewing an existing paramount title in another. This was in conformity to the previously adjudged and well considered case of *Furman*vs. *Elmore,*then unpublished, and apparently unknown to the bench or bar, but which was most fortunalely brought to light and published in a note to *Mackey*vs. Collins, *2*N. and M’C. 189. The same principle was affirmed in *Biggus*vs. *Bradly,*1 M’C. 500, with this qualification, *that a purchaser in possession*should not be allowed to purchase an outstanding title, and sue for a breach of the covenant of seizin. In that case, and many others, there is a good deal said about an implied warranty arising from a full price, in the sale of lands, as well as in the sale of chattels : but it is manifest such a doctrine has no foundation in law, and was not necessary for the decision of the cases at law, when they rested on the covenant of seizin in the deed. The principle, ruled in *Mackey*vs. *Collins*was re-affirmed in *Johnson*vs. *Veal,*3 M’C. 449. But in that case, another very important principle, and safeguard to the application of the doctrine, was settled and fixed, — that as the action lay for a breach of the covenant of seizin, before eviction, by shewing that the grantor had not title at the execution of his deed, the statute of limitations began to run from the execution of the deed, and that in such a case, four years would bar his remedy by action of covenant.

At law there formerly were three classes of cases, in which a purchaser could be1 relieved, in part or in whole, from the payment of the purchase money. 1st. Where there was a partial failure of consideration, as where part of the land sold and con*349veyed was covered by a paramount title, which might, and in the opinion of the jury would so far deprive the party of the benefit of his purchase. This is essentially matter of discount, and, as is decided in *Farrow*vs. Mays, 1 N. and M’C. 312, can be given in evidence *only*under a notice of discount filed, and served on the opposite party. In such case the measure of damages to be allowed to the party on his covenant of seizin, is the *pro rata*value of the land covered by the paramount title, estimated by the purchase money and interest, and the relative value of the land thus taken off in the purchase, to the land remaining. *Furman*vs. *Elmore,*2 N. and M’C. 199 to 204. The 2d class is where the grantor when he sold had, or *at the trial*has, no title to the land. In such case, the vendee, having acquired no title, has of course no consideration for his promise, and hence if the action be on a parol contract, it may be regarded as a *nudum*pactum, and the vendee thus relieved at law. In such a case, as is said in *Farrow*vs. *Mays,*the defence may be given in evidence under the general issue. But in an action on a specialty, as is explained in *Hunter*vs. *Graham,*1 Hill, 370, before the Act of 1831, the failure of consideration must have been specially pleaded, or set up by way of discount. That Act merely lets the party into his defence under a notice instead of a plea. In a suit on a specialty, therefore, it would seem the more prudent course for a defendant, (and the most consistent with legal rules) to regard his covenant of seizin as broken to the whole extent of his purchase money and interest, and to claim damages accordingly by way of discount. In such a case, if the jury should be satisfied, that in fact as well as in law the purchaser took nothing by his title, and that he will be ousted by the paramount title, they may find a verdict for the defendant, not on the ground that the failure of title is a rescisión of the contract, but that the damages, on the covenant of seizin, are exactly equal to the purchase money and interest. In such a case there is no necessity for an appeal to equity to put the parties in *statu quo.*For the vendor’s deed conveys no title to the vendee. Neither can the vendor claim an account fof rents and profits. For his vendee is liable to the owner of the paramount title for the rent of the land during the time he may be in possession. *Taylor vs. Fulmore,*(1 Rich. 52.) Both of these classes of cases have always been and still are regarded as constituting legal defences examinable and relievable in a law court. The 3d class of cases, where there was a good title in part and *350in whole conveyed by the vendor *to*the vendee, and the object of the vendee’s purchase was defeated, either by a part failure of the title, or the failure of some incident to the purchase, represented ty the vendor, or shewn by the title, as resulting from the purchase, the purchaser formerly was held to be relievable at law, although he might be in possession, *by a rescisión of the*contract. The case of *Gray*vs. *Handkinson,*1 Bay,*278,*which seems to have been the beginning of this doctrine, held that a mill seat was the principal inducement to the purchase, and that being taken away by an older title, entitled the vendee to a res-cisión of the contract. In that case the Judges speak of the defence as a kind of equitable one, which was allowed *noto*in a Court of Law as well as in Equity, *on the ground of fraud. So*far as fraud is concerned, I have no doubt *the defence.is good anywhere.*But there is no fraud, where both vendor and ven-dee are alike ignorant of the defect: and that was the Case iii *Gray*vs. *Handkinson.*In a note to that case, the rule of the decision is ascribed to the doctrine that a sound price warrants a sound commodity. It was followed by the case of the *State*vs. *Gaillard, 2*Bay, 11. In that case, the defence rested upon the ground, that when the land was sold, a plat was .presented, which represented a fine copious stream of water running nearly through the centre of the tract, with a mill seat upon it: and that these advantages were the principal inducements to the purchase: that they had failed, inasmuch as the supposed stream was a dry gully three-fourths of the year. In that case, the doctrine, that a sound price warrants a sound commodity, was applied to land as well as to personalty, and that by the general terms of our discount law, a defence predicated of it, could be set up. In that case, the verdict of the jury rescinded the contract, notwithstanding the contract was executed both by the execution of titles and the delivery of possession to the vendee. It is possible that that case might stand upon the fraud resulting from the misrepresentation at the sale, without resorting to the wild doctrine, that there was an implied warranty from the price paid, in addition to the legal covenants of seizin and quiet enjoyment. These two cases were followed by many others, where from misrepresentation, or a failure of consideration, in part, which defeated the purchaser’s object, in making the purchase, the contract was rescinded. The extravagant results to which we were conducted, may be illustrated by the case of the *Com*
      *351
      *missioner in Equity*vs. *Robert R. Pearson et al.*In that case, the land had been sold under a decree in equity in the case of *Delilah Perry by her committee*vs. *The Executors of Aaron Cotes, dec'd.,*and purchased by the defendant, Pearson, at a great price. He received titles, — was in possession tor years. He made several payments on his bond. At last, when sued, he succeeded in shewing that there was an outstanding title to an undivided share of about one-eighth of the land, in persons who were not parties to the case under the decree in which the land had been sold. The constitutional court, against the finding of a jury, allowed the defence: and the vendee was permitted to rescind the contract. At length, however, the court awoke to the mischievous consequences of allowing such defences, and in the cases of *Carter*vs. *Carter,*1 Bail.*217*— Bordeaux vs. *Cave,*1 Bail. 250, and *Westbrook*vs. *M’Millan,*1 Bail. 259, undertook to retrace their steps. In those cases, they declared, that where the contract of sale was executed by the delivery of titles and possession to the purchaser, and he had not been evicted, that for a failure of title to part of his purchase, although it might defeat its object, *the contract would not be rescinded in a, Court of Law ;*and that the party must seek relief in a Court of Equity. The reason assigned, that a Court of Law could not restore the parties to their original condition, by compelling the vendee to convey the title, which as far as the vendor had title, conveyed a good legal estate to him, and to account for rents and profits to the extent of the vendor’s title, were certainly true, and shewed that in such a case a rescisión at law could not take place. The rule of these cases was admirably explained by the only surviving member of the excellent court which pronounced the decisions in *Carter*vs. *Carter, Bordeaux*vs. *Cave,*and *Westbrook*vs. *M’Millan,*in the case of *Johnson*vs. *Purvis,*1 Hill, 326. In that case, Johnson, J. said — “The first ground of this motion is founded on a misconception of the cases of *Carter*vs. *Carter,*1 Bail. 217, *Bordeaux*vs. *Cave,*Id. 250, and *Hext*ads. *Morgan,*decided in 1829, and from what has occasionally fallen from the bar in reference to these cases, I am led to conclude, that the impression is not unusual that want of title in the vendor of land, either in whole or in part, is not a good defence to an action brought at law to recover the purchase money. *But these cases inculcate no such rule; they maintain, however, that a Court of Law cannot rescind a contract*
      *352
      *for the sale of*land, *on account of a partial failure of consid*eration, *on the*ground, principally, *that a Court of Law has not the full power to do full and adequate justice to the*parties.” When these observations are understood as applying to an executed contract accompanied by possession of the land, they give a perfect exposition of the rule as settled by the Court of Appeals in 1829, and ever since inflexibly maintained by the Law Court.

According to this rule, 1 have no doubt, if Yan Lew’s title were defective, he could not have set it up at law. Unquestionably the title of David Myers conveyed to him the life estates of himself and his five other brothers and sisters. The defect in his title, if there be any, is that the children of the tenants for life who may attain to the age of 21 years, upon the death of their respective parents, will be entitled to the estate in remainder. For if there had been a doubt as to the limitation over in their favor, on the clauses of the will cited in the decree, the codicil removes it. The danger to his title was, therefore, altogether future. It could not be the subject of discount, in the Law Court, for the covenant of seizin was not as yet broken: and if it were, it would be impossible safely to estimate the damages. Hence, therefore, I conclude, that if the plaintiff could set up his supposed defect of title against Mrs. Parr, that it would be very properly examinable and relievable in Equity. For I take it, both parties, vendor and vendee, supposed the title good. In such case, there can be no objection to equity between the original parties, giving a relief by either rescinding the contract, and compelling the purchaser to re-convey, account for the rents and profits and for waste, or by refusing to rescind the contract, where the court can protect the purchaser, as was done in *Thom*son, *adm’r. of*Moorman, vs. *The Ex’rs. of*Lewis, by perfecting the title : or, as might have been done in this case, if Myers had continued to hold the purchase debt, by compelling him to secure the purchaser against the future estate by leaving unpaid the principal sum, (the purchaser paying the annual interest,) until the future estates might arise. There are, however, many cases of fraud or mistake, where although the contract is executed, yet the Court of Equity will rescind the contract. But it is not necessary that I should pursue this branch of the case. The opinion delivered by Chancellor Johnston has fully explained and enforced the doctrine applicable to it.

*353Richardson, J.

I concur fully in the decree, upon the merits of complainant’s bill.

Dr. Van Lew has no grounds to set aside the judgment of Mrs. Parr; because she purchased his bonds, not only for a valuable consideration, but under a confidence, permitted, if not purposely raised, by Van Lew himself — that he had no defence to the bonds, and because she was ignorant of the contingent remainders, that may eventually take the lands in question from Van Lew. It follows, clearly, from such facts, whatever be the possible claims of Van Lew to an equitable defence to the bonds, if still in the hands of David F. Myers, that it would be inequitable, and encourage unfair dealing, to permit him to succeed in such a defence, as against such an assignee of the bonds. Her judgment at law must, therefore, stand unaffected by the strife of Van Lew and Myers — and Van Lew be remitted to his warranty of title received from Myers, and relied upon at the time of his purchase.

*2.*Upon the question, whether Van Lew had or had not a good title to the lands against the contingent remaindermen, by reason of the sales ordered by the Court of Equity in 1835, i. e. whether such sales, being unconditional in terms, will bar the contingent remainders, although the parties interested in such remainders were not represented, I give no final opinion ; as it is not essential to the decision of the case — and the court ought still to avoid deciding upon the possible future rights of such absentees. Let them first lay in their claims.

3. But upon the question, which I understand caused the appeal to the Court of Errors, to wit: whether it was necessary, as a principle of law, that before the purchaser, Van Lew, could recover, by reason of a title paramount to the one he received from D. F. Myers, he must have been actually evicted by force of such paramount title ? Upon this question I cannot hesitate. It depends upon an important and clear principle, that ought not to be questioned in our courts.

The series of our decisions, enumerated and expounded by Judge O’Neall, which began in 1792, and continued ever since, has finally established this proposition in the laws of South Carolina : That whenever, in the sale of lands, the seller makes a general warranty of title, in the usual form of our conveyances of real estate, and a subsisting paramount title at law to the same lands belongs to a third person — as, for instance, an older grantee of the same lands; in such cases, the purchaser is not *354obliged to wait until he shall have been evicted by force of such paramount title, but may recover against the seller, upon the fact, that such paramount title has been found in such third party. Because, such paramount title is, by our decisions, *per se,*a breach of the warranty of the seller, and co-effective with, eviction. The seller warrants the purchaser’s superior title.

Now, then, this being the law of such cases, it follows, that whenever a case is presented in equity, *proper and suitable in all other respects for that*jurisdiction, the bill will not be dismissed on the ground, merely, that the purchaser has not been actually evicted by force of such paramount title.

I admit that in an English Court of Chancery, and in many of the States, such a case would be dismissed, for the want of the actual anterior eviction of the purchaser. The principle of reasoning there, is precisely the same as for the converse decree in South Carolina ; i. e. the same rule, “ *equitas sequitur legemf*governs ; and equity decides, as the rule of law has been established in the judicial forum of law.

For illustration : let us suppose that the English law Judges had, ever since the year 1792, adopted and established the South Carolina rule, or the Parliament had enacted it; would we, *after*such a change in the law of the warranty, hear of any *estoppelT*because there had been no actual eviction *7*and *would not*the title paramount be holden equivalent to actual eviction, wherever that rule had obtained at law *7*I think there can be no doubt of this.

The argument is not that other courts, and commentators on law, have drawn unjust or illegal conclusions from their premises, but that our courts cannot, without error, adopt the same conclusions from our own legal premises, that have obtained since 1792, and dispensed with the necessity of proving a prior eviction.

Perhaps I need not have thus briefly condensed the profound considerations and arguments of my brethren, or indexed the drift and conclusion from such arguments. But, in a case so calculated to introduce the understanding proper and conducive to decisions formed in ihe same fundamental legal premises, I would contribute my conviction after the very able argument, that this has become the law of such general warranty of lands in South Carolina, and must govern all our courts equally, as a settled principle of such warranties.