#### *John Kibler vs. Mary Ann Cureton, Executrix.*

Vendee gaye his single bill for the purchase money of land, and was afterwards sued at law on the bill and judgment received against him: he then filed his bill in Equity, claiming a *pro rata*deduction from the amount of the judgment, — alleging that a valuable part of the land had been taken from him by a paramount *title:*— Held} that he was not entitled in Equity to the relief he sought, — that he could, and should have availed himself of the matter, as defence to the action at law.

Where a party may, at law, avail himself of a defence, and neglects to do so, he cannot afterwards apply to the Court of Equity for an injunction.

Where part of the land is taken from the purchaser by a paramount title, he may, in an action at law for the purchase money, claim a deduction for the value of such part, *(a.)*

*Before*DeSatjssure, Ch., *at Newberry, July,*1831.

This was a bill for an injunction against the balance of a judgment and execution at law. The defendant, as executrix, had brought an action against the complainant on a'single bill, given for the purchase money of a tract of land, of which, as it was alleged, sixty acres of superior value were taken from the purchaser by a paramount title in a third person. That the .testator pointed out and pretended to the complainant, while they were negotiating the trade, that the line ran so as to include *144the sixty acres, on which was a very valuable spring; which, with the richness of the soil of that part, constituted it one of the main objects of the purchase.

That defendant and the legatees, and heirs at law of the testator, resided out of this State, and have no property in it that can be attached.

The defendant demurred, and insisted that complainant might have relied on the deficiency of the land by way of discount, in the action at law, and not having done so, had precluded himself from *relief*in Equity. The Chancellor ordered that the demurrer be overruled, and that the defendant answer the bill of complaint, and that the injunction be continued until the further order of the Court.

From this decree, the defendant appealed, and moved the Court of Appeals to reverse the decree, and sustain the demurrer.

Dunlap, for appellant.

(a.)

*Means*vs. *Brickell,*2 Hill, 657; *Taylor*vs. *Fulmore,*1 Rich. 52; 2Rich. 127.

The opinion of the Court was delivered by

O'Neall, J.

The ground on which the bill seeks relief, is that a part of the land sold by the testator to the complainant, is covered by a paramount title in a third person. It is not pretended that this was not known to the complainant at the time of the trial of the action in the Court of law for a part of the purchase money: indeed, on the trial of that cause, the defect was set up'by way of discount, and being unable to sustain it by proof, it was withdrawn. The complainant does not now seek a recision of the contract, on the ground, that the object of his purchase is defeated by the part covered by a paramount title ; he asks for a *pro*rata, or relative compensation for the land to which he alleges the testator had no title. .

Can the- complainant, under these circumstances, ask the aid of the Court of Equity *?*The rule is, when a party may,'at law, avail himself of a defence, and neglects so to do, that he cannot afterwards apply to the Court of Equity for an injunction. (1 Johns., Ch. 98, 465; 61 b. 87 ; 4 Johns., R. 510.) If this was not so, a suit at law would be nothing more than the *145commencement of a suit in Equity. A party might at pleasure, withdraw his defence at law, and subsequently set it up in Equity. This cánnot be allowed. If a party can defend himself, and fails to do so, he has no Equity which entitles him to relief. The defence, proceeding upon the ground, that part of the land to which the testator had no title had been taken from the purchaser, was matter of compensation, and not of recision, and was a legal defence, and might have been set up. The ground assumed by the case of *Bordeaux*vs. *Cave,*(1 Bail., 250,) is, that when the defect of title does not amount to an entire want of title in the vendor, in the whole of the land sold, but still goes to rescind the contract, on the ground that the main object of the purchase is defeated by the defect, and the purchaser is in possession, the defence is an equitable, and not a legal one: and in such a case, relief in equity would be afforded after judgment obtained at law. A partial failure of the consideration is a legal defence; and perhaps more peculiarly proper for a Court and Jury, than almost any other. How much is the defendant injured by the land to which he has acquired no title by his purchase, is always the question. This must depend upon the relative value of the part so lost to the whole tract: this makes it strictly a question of damages, depending upon the opinion of witnesses, and in such a case the verdict of a jury is greatly to be preferred to any other mode of decision.

I will not say, that the complainant may not have some claim to relief on a proper statement of the case. If, as was said at the bar, the land to which the testator had no title, is embraced in his deed of conveyance, and there is a covenant of warranty, the existence of a paramount title would be a breach of the covenant of seizin : and if more than four years has not intervened between the execution of the deed, and the commencement of the suit, the complainant by proceeding on the covenant of warranty in Equity, and alleging that the executrix is out of the State, and that the funds of the testator are within it, might entitle himself to relief. But the case made in the bill, *146proceeds on the misrepresentation made at the sale, or rather on the implied warranty of title, which at law is presumed to extend to all the land pointed out at the time of sale. This is strictly a defence, arising out of the sale, and if not set up at law, cannot be set up in Equity.

It is, therefore, ordered and decreed, that the Circuit decree be reversed, that the injunction be dissolved, and the bill dismissed with costs.

JohnsoN and Martin, JJ., concurred.

*Decree reversed.*