#### Waggener *vs.*Waggener.

October 14.

Appeal *tram*tbe Casey Circuit; John L. Btudges, Judge.

*Trusts. Trustees and Cestui que trusts. Conveyances. Devises. Descents. Attorney. Evidence. Presume tions.. Lajise of lime. Rescission of Contracts.*

OilAN'CSUY.

Qv.se 145.

Appellant purchased 400 acres of land trou appr,Uqe.

Judge Owsley

ddivered tbe Opinion ortho Court.

On the, 16th of June, 1820, the appellant contracted wills the appellee, for a tract of four hundred acres of land, in the county of Adair, at a credit of one year, tyncl executed-his note, for the purchase. *543money. The appellee at the same time executed bis h-'iid for a title; the conveyance to be by a general warranty deed, and to be made upon the receipt of the purchase money.

Judgment at law for the purchase money.

¡Bill by appel laut for injunction and rescission.

Grounds relied on for a canceiment of the contract.

A ppnlloo' answer.

Decree of (lie circuit court dismissing tiio bill.

Appellee’s title.

Aloxr. Dick’o will.

Patent to Jas. Alerce» in trust tor Dick’s devisees, *544Jas. Mercer’s 'will.

*543The purchase money was not paid at the time stipulated, and suit was brought upon the note given therefor by the appellant, and judgment recovered at law by the appellee.

The appellant then exhibited his bill in equity, with injunction to be relieved against the judgment at law, and to obtain a cancelment of the contract for the land.

The grounds upon which reliance is made to cancel tiie contract are the following:

First. The inability of the appellee, through a.defect of tide to convey the land according to his obligation and contract.

Second. The false and fraudulent representation of the appellee, as to there being upon the Hind permanent and lasting springs when he knew there Were, none such.

Third. The fraudulent description of a different boundary of land, in the bond given by the appellee for a title than that which he advertised for sale,, and which the appellant at the time of his purchase Thought he was buying.

The áppCiee denies the charges of fraud, and insists that ho has the legal title to the laud ready to convey according to his undertaking, &c.

The court below was of opinion that the appellant failed to shew any good cause for relied", and pronounced a decree dismissing his bill with damages Ac.

The title which the appellee, (’¡aims to hold, is derived in the following manner, viz:

Through the will of Alexander Dick, made in the State of Virginia, the twenty ninth of January, one thousand seven hundred and eighly-tive, dei ¡sing the whole of his estate, hath real and personal to James Mercer in trust, among oilier things, for the use and benefit of Mary Taliaferro, Charles Champe Taliaferro, and John Fenton Mercer.

The patent which afterwards, on the 11th of October, one thousand seven hundred and eighty-seven, Issued from the State of Virginia* fur the laud to *544James Mercer, in trust fur the devisees of Alexaader DPT.

Deed by the *cestvi que trust of*Dink’? will to I’aUon, Hackley and Leo, under whom appellee claimed

The *cestui que trusts*of a <lovi?c to a trustee cannot n.-i-s the Jo.-rai title by llicic deed.

The will of James Mercer, made also in the State of Virginia, in May, one thousand seven hundred And ninety, one, devising ail his estate, real and personal, to. Mtiscoe Garnett and Benjamin Harrison, in trust for his children, Charles Fenton Mercer, Mary E. D. Mercer and Lucinda Mercer.

The deed of Charles Taliaferro, John Fenioti Mercer and Mary Payton, (late Mary Taliaferro,) *by*Jamos if. Garnett her attorney in fact, made in the state of New York, in May 179G to Robert Patton., Richard Hackley, and John Leo.

To trace tlie title claimed by the appellee down to him, various other deeds would have to be noticed, but as they are all subsequent to May 179C¿ and purport to be from either Patton, Hackley or the representatives of Lee, or others claiming under some of them, it cannot be important in this contest to bring any of those deeds into particular review unless the tille claimed by the apppellce through Patton, Hackley and Lee was actually vested in them, by the deed to which we have last refered.

IVo are, however, unable to perceive (.he processof reasoning by which the title, cither, legal or equitable. can be ascertained to have been in Patton, Hackley and Lee. The, patent which issued from the Slate of Virginia, though in the name of James Mercer, was not designed and should not. be construed to be a grant to him of both the legal and equitable estate of lite land in fee simple. The. legal title, no doubt, became vnsied in James Mercer in fee, but according to the terms of the natent the title was not to be held by him for his own use and benefit, but in trust, for the use of the devisees of Alexander Dick,, then deceased, so that- whilst the legal- title was in James Mercer the equitable or beneficial interest, was in Alexander Dick’s devisees, in the proportions and subject to Ihe limitations and conditions prescribed in his will.

Willi respect to the legal title, I be re fere, if is impossible to discern how’ it can have passed to Pattern, Hackley and Lee, by the deed of Charles Talla--*545ferro, John Fenton Mercer and Mary Payton, (late Mary Taliaferro.) which was given in Mitv Í796: to have passed by that deed, the legal title winch had been granted by the State of Virginia to James Mercer, must have come to the vendors named in the deed, hut there is in this cause nothing to "shew a derivation of title by them from the patentee James Mercer.

^ ^ frast!^ if the deyise? of a nounce the trust tho Ie= ^ j,0irs 0f t{,0 trustee in trast’ a11 of the tute, Trustee may devise the

it is true, James Mercer is proved to have died before the deed was made in 17SG to Patton, Hackley and Lee, and although before his death James Mercer made a will, and devised the land to others in trust for his devisees, vet as thelrustees therein named appeared in court and renounced the trust, the legal title must, notwithstanding the will, have descended upon the heirs and representatives of James Mercer. A conveyance by the heirs of James Mercer, therefore, would dubtiess pass the title as effectually as if niade by him in ¡¡is lifetime; but to have that effect the conveyance should be made by the whole of his heirs and not apart only; if made by part only, the title ^ of those by whom made would pass by the conveyance, but to pass a perfect title, the, whole of the heirs should unite in the conveyance. It is apparent, however, that the deed to Patton, Hackley and Lee, was not made by all the heirs of James Mercer. At the time of his death, James Mercer is proved to have had four children, neither of whom, except John Fenton Mercer, executed the deed. Waving all enquiry as to the authentication of the deed, therefore, it is perfectly clear that, through that deed, Patton, Hackley and Lee cannot have derived a legal title to more than one-fourth of the land, and as to the other three-fourths, the title must (rom any thing contained in the record, be presumed to reside in the other heirs of James Mercer, from whom the present appellant has not attempted to derive any title.

Nor are we of opinion that Patton, Hackley and Lee became invested with a complete and perfect equity to the whole laud by the deed of 1796. The vendors, Charles Taliaferro, John Fenton Mercer, and Mary Payton, are devisees named in the will of Alexander Dick, to whose use the land waq de* *546vised to James Mercer, and afterwards patented hi his name in trust; so that if the wiil had prescribed no limitations or conditions upon the use devised to them, and there were no available objections to the deed, there would ho .some, reason for maintaining that the entire- equity passed by tiie deed to Patton, Ilarkloy and Lee.

Where a deed of conveyance purports to hove ficen made by attorney the authority most appear; a roeifalin tho deed has no effect.

Where the devise is for use of one for life and in fee, if she have ■issue when she dies without having had children, the estate she conveyed by her deed is determined.

But on the. part of Mary Poyfoil, (late Mary Taliaferro,) the deed purports to have been made not by her in her proper person; but by her attorney in fact. James II. Garnett. To be. effectual to pass her interest in the land, therefore, Garnett must, have derived authority from her to make the conveyance, and proof of that authority should have been mad» in the present case, to enable the. court, to give effect to the deed But tho record contains no such proof. Thconly evidence of Gar-nett’s authority consists in a recital of the fact in Íh.e deed executed by him; and surely' none will contend that the assertion of a person who takes upon himself to act in the- capacity of an agent, made by way of recital in the deed yvhieh he, executes as a-gr.nt, is legitimate evidence of the fact that he was authorised to do the. act.

But suppose tliis objection could be gotten over, and the deed were admitted sufficient to pass ail tho equity that Mrs. Payton possessed in (bo land, siiii it would not follow, that Patton. líarkíey and Lee, were, clothed with the. entire and perfect equity to. tho land. For by the will of Dick, devising the. use of one third of the land to Mary Payton. (th-m Mary Taliaferro.) it is provided, “(hat in case she “ shall marry and have children, the one third giv- “ en to her, shall be to her and her heirs in fee- “ simple, but in rase she should have no children, “ one moiety thereof to go to James Mercer, the *“*trustee, in fee-simple, and the other moiety to go *5 to Charles Champe Taliaferro.” &c. Now the fact is-unquestionably proved that Mary Pa.vf.on departed this life without having had children, so that even admitting; the sufficiency of the deed to pass the interest she then possessed, one moiety of what she derived under the will of. Alexander Dirk, must afterwards, upon her death, have vested in the heirs *547*;im\*representatives of James Mercer, lie having previously departed this life; and the other moiety must also have vested in Charles Champ Taliaferro. It follows, therefore, that upon no principle can the deed to Patton, Hackley and Lee iiave invested them either with the perfect legal title, or the entire equity; and of course’the appellee, claiming through then), cannot have a better title or greater equity than was held by them.

A conveyance from the trustees to *lectuiquc trust*may be presumed from length jf possession—

But—

If the *cestui gus trust*had but a life estate unless she liad issue and she died childless no such pr«c' *548«ampíion can aid lior alienee of *the*fee.— It cannot be presumed the trustee released to the *cestui qv£ trust*a greater interest than lie was entitled, -te.

*547In the preceding remarks, our attention has been mainly directed to the documentary evidence of titúle, contained in the record, and were the contest to turn exclusively upon evidence of that sort, we should have no difficulty in saying that the defendant has not proved himself to he possessed of such a title to the land as enables him to perform his covenant to convey. But the deed *to*Patton, Hackley and Lee, bears date in 1798, and afthough the written documents contained in the record may without other evidence be insufficient to prove the title to have come to them, it was contended in argument, that after the lapse of time since that deed Was made, every thing necessary to supply the apparent defect in their title, should be presa t.ed in support of the possession of the defendant, who chums under them. If in the devise of the use to the vendors in that deed, no conditions or limitations had been imposed by the will of Alexander Dick, and if there had been a continued and Uninterrupted possession of the land, by Patton, Hackley. and Lee, or those claiming under them, ever since the date of the deed, there would certainly he great plausibility in th,e argument. The most solemn in* siruments have been presumed, from great length of possession, and a conveyance from a trustee to the *cestui que*use. entitled to a conveyance has been presumed from a possession of shorter duration.

But we have seen that by the will of Alexander Dick, the use which was devised to Mary Taliaferro, was not to belong to her in fee-simple unless she should marry and have children, and in case of her dying without children, it was directed to go to others. Were it, therefore, admissiole to presume from the. *548length of possession held by those claiming uncley Patton. Hackley and Lee, fhat a deed of conveyance had been made to their vendors., by James Mercer, to whom the band was patented in trust, for the use of those vendors, we should b.e bound to presume that the conveyance made by the trustee, was in conformity to tisú limitation and conditions imposed by the will of Alexander Dick, upan the use. devised to Mary Taliaferro.; and as she is proved to have died without issue, after the death of James Mercer, without the aid of a conveyance from the heirs of James Mercer, (to « horn upon her death one moiety of the use devised to her is directed by the wiil of Alexander Dick to go,) to the defendant, ho evidently cannot have made out a good title to the land in contest.

Evidence as to the adverse possession.

Nol loss.(.ban 20 yours is sufficient to authorize the presumption of a *convey*-anco from trastees,

Rut; here again it may possibly bo said that from the length of possession, a conveyance from the heirs of James Mercer should, also bo presumed, it should, however, be recollected that the record contains no evidence as to the time Mary Taliaferro died, without which it is impossible, to know how long the possession lias been since held, so as. to enable th’e court from the fact of continued possession to presume anything favorable to a conveyance from those, *to*whom *the*interest devised to her passed at her death.

But were there no defect, in the proof, as to tho time Mary Taliaferro (afterwards Mary Payton) died,, still we should bo of opinion that the possession proved is not Such as to authorise a presumption in favor of a conveyance of the legal title of the land in contest. The possession, instead of having been ronlinucd e,ver since the date of the deed to Patton, Ilackley and Lee, is proved not to have been taken of the- land in cor.t&st until less than twenty years from this time. And without intending to decide, what length of possession would create a presumption of title, we can have no hesitation in saying, that any continued possession, short of the time limited, for making entries upon land, cannot within i-tseif create, h presumption of the title having been cauvrjetL

*549Vendor who cannot make out a title cannot have his contract executed, but must rescind however honest ho may-have acted.

In whatever point of view the question of title is. considered, therefore, we are constrained to say, that the defendant has failed to shew an ability to convey the land, sold by him to the complainant; and being -unable to convey, though he may have committed no actual fraud in selling; the court below ought to have decreed a perpetual injunction a•gainst the judgment at law recovered by him for the sale money, and directed the contract to be can-celled.

The decree of the court below- must, consequently, be reversed with cost, the caude remanded to that court,'and a decree there entered in conformity with the principles of this opinion.

The appellee moved the court for a re-hearing on the following:

PETITION FOR A REHEARING

BY J. J. CRITTENDEN, Esq.

The counsel for appellee ventures, with great deference, to suggest to the court, that in the opinion delivered in this case, there is some little inaccuracy in the statement of facts, and, as he humbly conceives, some error in the conclusions of law. Inaccuracies and errors scarcely to he avoided in a case so perplexed without the most laboured and minute investigation.

The opinion of the court in the recital of the will of James Mercer takes no notice of, but entirely omits, the name of John F. Mercer, and the deviso to him. The fact thus omitted is one of primary importance in the case.. There is this other inaccuracy in the statement of the case by the court, and it may not be altogether unimportant. In the opinion of the court, it is. stated that the patent for the land in question, was issued to James Mercer, ‘«in trust for the devisees of Alexander Dick.”- The patent upon. its. face is expressed to be to “James Mercer as *devisee*and *trustee*of Alexander Dick.”’

The court “is unable Jo perceive the process of? reasoning; by which the title either legal or equitable can he. ascertained to have been in. Patton, Hack*550ley and Lee, by virtue of the deed of conveyance made to them by Mary Feyton, (by an agent,) John F. Mercer and' Charles C. Taliaferro.” And for this delect of title, as the appellee claims under Fat-ton, filackley and Lee, the court had decreed that the sale made by (lie appellee to the appellant should be cancelled. The counsel for the appellee is strongly persuadid that by that deed, both/the legal and equitable title was vested in Fatton, Hackiey and Lee

By the patent to James Mercer, he was vested with the legal title to tito land in question; by his will made in 1701, after a devise of Iris Whole estate to Garnett, and Harrison in trust for the use of his children &c. he devises the land in question to his son John F. Mercer, by the residuary- clause thereof. And upon their refusal and renunciation of the trust, the legal title, which would otherwise have vested in Garnett and ffamson, passed to the devisees *respectively,*for the portions of the estate devised to them severally; each one holding the part devised to him, subject to the payment of the debts and legacies charged upon it. The legal title, and the beneficial interest became united in the same persons, and tinless they can be considered as holding in trust for tlietnselves, each must be considered its holding’by a perfect title to whatever was given ro' him by the will. And the estate of the testator will pass precisely as if there had been no devise to trustees. This construction does not at all affect life rights of parties under the will, nor the power of a court *of*chancery to effectuate the purposes and objects which the testator intended to accomplish by means of the trust'. Nor is it conceived that this power of a court of chancery in any degree conflicts wiib the opinion, that upon the renunciation of the trust by tito trustees, the., title passes by the will as if there had been no devise to trustees. The idea, that the legal title and the use,. can be vested at the samo time, .and in the sama parlies, ami yet remain distinct and separate, is believed to be incompatible with the rules of law; they will, no doubt, continue to hold (he estate subjeetjo all the incumboucie^amS charges imposed on *551í.t, ami which were intended to be secured and ofiecttul, by the separation of the legal and equitable title, but whenever they meet in the same person persons, the title is complete, and the use becomes executed to the full extent of each party’s right. If this be correct, upon Use renunciation of the trustees, John F. Mercer became legally entitled, or rather Was vested with the legal title to rhe land in qmstion which was devised to him as before stated by the residuary clause of the patentee’.s, James Mercer’si will. And if so, the *legal*tille undoubtedly passed to Patton ííaekley and Leo by the deed in which (lie said John F. Mercer was one of the grantors.

But, the counsel for the appellee does si ill more confidently believe that the entire equitable title passed to said Patton, Rackley and Lee by virtue of said deed. According to the- opinion of the court,: James Mercer held the legal title, for the use of Charles G. Taliaferro. John Fenton Mercer and Mary Taliafei-ro. They were entitled to the *whole equitable*interest, subject to this limitation as to Alary's interest, that if she died without marrying and having children, it should pass to the said Jas. Mercer and Chs. C. Taliaferro. By the will of Jantes Mercer, he .undoubtedly passed all his equitable rights and interests, whether in possession or remainder, to tire laud in question to John F- Mercer; and the. said J. F. Mercer was thereby equitably entitled to his father’s remainder in Alary Taliaferro’s interest, whenever (he contingency should happen upon which it was to vest. If lie took any equitable interest- even under his father’s will, he took (his. It cannot be -pretended that this possible or contingent interest was not deviueabie, nor that (he words of Jantes Mercer's will, are not broad and comprehensive, enough to embrace it. After the death of James Mercer, which happened before 1798, the whole equitable interest- in Cue land in question, both present and future., was vested’in Charles C. Taliaferro, Mary Taliaferro, and John F. Mercer; the. said Charles and John being entitled to the share of Mary, in the event of dying without, a child. And in this situation of the estate *552a]J tiifee of them in tile year 1796, (the said Mary hy her agent, as the deed recites,) join in a conveyaiice of the land to Patton, Hackiey and Lee.

The deed was executed without authority from Mary; she afterwards, as it is admitted died without a child, and her portion or interest, according to the devises and limitations in the wills of Alexander Dick and James Mercer passed to Ghs. C. Taliaferro and John F. Mercer. And surely their deed, considering it as unexecuted by ? - ary Taliaferro, otherwise Mary Peyton, passed to Patton,Hackiey and Lee, all the interest, cither present or future, which they then had to the land in question. And when upon the death of Mary, which happened after the «late of the deed, her interest devolved upon Cbs. C. Taliaferro and John F. Mercer, it must certainly be considered as enuring to the confirmation of their deed and to the, benefit of their alienees. Patton, Hackiey and Lee; in whom by this clear process, all the scattered lines of this etpiity became concentrated. And if this be so, who after such a lapse of’ time, after the long possession can question their title? it is said to be defective, but who can impeach or dislurb it? Can the creditors or legatees of James Mercer? Would they be heard to set up any pretensions after a lapse of new about tbirfy-iivo years since his death? Would the heirs of James Mercer be permitted to disturb it? And upon what grounds? .John F. Mercer, one of them would be estopped by his deed; and as for the other heirs, holding, if any thing, d mere barren title in trust for him, after payment of .debts and legacies, upon what pretext could they assert, any right,.or contest the title of the appellee? The debts and legacies must all be presumed to have been long-ago paid, or are barred by the length of time, and the trustees could, therefore, have no pretext for setting up any claim. If Charles G. Taliaferro and John F. Mercer were now alive and in.(he possession ami enjoyment of the estate could the other heirs of James Mercer recover in ejectment against them, even supposing (hose heirs originally took the legal title- and held it as trustees for the same purposes that the renouncing frusbr:’- *553and executors of Janies Mercer would have held it? If is believed they could not recover in such a case.; that after such a length of time, and the irresistible presumption that all the purposes of the ¡¡¡trust were fulfilled, the law would infer and presume a Surrender of the legal title.

Inferences and presumptions which are indulged in, not so much on account of the intrinsic probability of their truth, as because the policy and peace of society requires that they should be indulged. But if not prevented from a recovery by the presumption of a surrender of the iegal title, would a court of equity ever permit, them to enforce snob a recovery? Certainly it would tiot, unless it were for the purpose of carrying into effect some of the provisions of James Mercer’s will, for the payment of debts and legacies; and we consider it incontestable that it is by far too late now, to setup or assert any claim to such debts or legacies.

If neither the heirs, creditors or legatees of Jas. Mercer could successfully question the title, who else stands in an attitude to do it? A mere stranger could not surely set up, after such a lapse of time, the antiquated and barren title of the heirs of James Mercer, or the stale claims of his satisfied and uncomplaining creditors and legatees, to bar any ejectment that might be brought, founded upon the tille of J. F. Mercer and Chs. C. Taliaferro. All the presumptions which could be indulged in their favor, il they were in possession, ought to be more freely and forcibly indulged in favor of *bona*fide and innocent purchasers from them. If there be none who could successfully question the title of the appellant, ought he to be permitted to question it, and to bring into controversy with bis vendor, a title in bis bands unquestioned, and unquestionable by all the world besides,’ and to evade bis fair contract of purchase, upon the mere ground of some defect discoverable in a mere abstract view of the evidences of title, but which defect can never endanger the loss of the land, or be made to operate to the, prejudice of the appellee? There has been a continued possession under the title of Patton, Uackley and Leo, from the year 1804, down to the *554present time, as appears from the testimony in th& case.

A conveyance from trustees may be presumed in much less than 20 years; as where trustees are directed to convey &c. for as it was the duty of the trustees to convey, to which they might have beets Compelled by a court of equity, it ought to be presumed that they had done their duty. Syburn vs. Slade. 4 Term Rep. 682. 11 John. Rep. 456. On the same principle that what ought to have been done shall be presumed to have been done, a rexouVeyanceof the legal estate may be presumed after a length of time, and when the purpose for which it Was conveyed has been answered, Hillary vs. Waller, 12 Ves. Jr. 239.

Upon this view of the subject, the counsel of the appellee is thoroughly persuaded, hnleed his mind cannot resist the conviction, that by the deed of 1796 to Patton, Haekley and Lee, they were invested with both the legal, and the *entire equitable*title to the land in question: and he flatters himself that the court will upon mature consideration concur in these opinions, and .find sufficient reason for changing the dec ision which has been rendered. He, therefore, with the most respectful confidence, solicits a re-hearing and reconsiderction of the cause.

The few moments, which the expected adjournment of the court, has left for the preparation of this petition, will be regarded, it is hoped as some apology for its acknowledged imperfections, and particularly for its being unaccompanied with any citation of authorities.

The Counsel of the appellant presented the following:

REPEIf TO THE PETITION EOK A BE-HEAKING, El

R. WICKLIFFE, ESQ.

The counsel of the appellant has examined the petition of the appellee, arid the opinion delivered by the court, and begs leave *to*suggest, that the petition seems in its character and object, to importune a revision of the opinion,.upon the ground of a sup*555gosed misstatement of immaterial facts, rather than upon the plea that substantial érror is perceivable in the decree, or of injustice upon the merits.

For. suppose the fact to be as stated in the petition, still, the seller shews no title. He does not prove his papers or any one of them to be executed* and none of them are duly recorded, and surely it cannot be material vvhat estate J; F. Mercer had* unless it is shewn that John F. Mercer has conveyed. But it is conceived that the petition proceeds upon an utter mistake.

It is possible that the court might, by construction, consider J F. Mercer residuary legatee by the first will, and as such, as trustee by devise of Alexander Dick’s will; but take the whole of the will, and even in this state of the case'lbe construction would he a forced one. 1st. Because in creating the'trust, Dick uses no wards of perpetuity aud the whole will shews that it was his intention to make the trust estate terminate with the life of Mercer. 2dly. It is most obvious, that Mercer considered himself on his first will, intestate as to the trust estate, and that he had neither devised it to his children nor to his executors, and to remedy this, he added the first codicil, in which he devised the trust estate to his executors. As this is the last will, it is not necessary to discuss the question, what estate John F. Mercer took in the first devise. If the trust estate was not devised, then the whole argu* merit of the petition falls. If it were devised, them the codicil revoked the residuary devise *pro*tanto* by devising the trust to the executors. This last will shews that he could never intend, that John who was then an infant, and whom he had refused the use of his share, and the management of his estate, until he w'as twenty-four years of age, should execute the trust under Dick’s will, and the authorities shew? that on the trustees’ refusal, the specific devise of the trust, must devolve upon the heirs-

The pretence for presuming title, or time, has been met by the court — in the absence of title papers they can be presumed to be correct, but the defendant shows his hand, and his papers on their faca, are defective/

*556April 11 o.

Ifvendor has not the legal title he contracted to convey "whatever may be his equity, vendee may rescind.

In hard cases on vendor, vendee may be compelled to accept the title, ifit be exhibited on the hearing, though obtained after it was to have been conveyed.-Ana even where the title is sti'l held by another, the vendee rnav fee compelfed tone opt it, provided such holder is before the sour:, and the title as contracted for, can be secured.— But the purchaser can ne ver be compelled to accept any e* qaity.

On consideration, the court overruled the motion,- and to that effect — -

Judge Owseey delivered the additional Opinion of the Conrtv

The petition of the counsel of the appellee for a re-hearing of this case has had the attention of the court, and the opinion formerly delivered, has been re-examined, and the result thereof approved.

The. only point about which any doubt is entertained, relates to the equitable right which by that opinion was decided not to be perfect in tlie appellee; brat, after the most mature consideration, we are fully satisfied that the legal title is not shewn to be in him, and without the- legal title, whatever may he his equity, it is perfectly clear that the appellee is unable to. perform his part of the contract. The appellant contracted for the legal title, had a right to insist upon having such a title, and cannot be compelled by a court of equity to accept of a conveyance of the mere equity. The aid of the court may be had to enforce specifically, contracts fairly made, but it is not competent for the court to make new'contracts for the, parties, or a* er or change the stipulations of such as the parties have made.

The purchaser in cases of peculiar hardship on the seller, may be decreed to accept such a title as he contracted for, if on the hearing, the court discovers that the seller is able to make the title, though the title was obtained after the time which, by his undertaking it should have been conveyed; and it might not be improper under particular circumstances for the purchaser to be comp: lied to accept the title, even where, upon the hearing, the seller appears-not to have the. title, provided that the person holding the title is before the court, so as to enable the court to judge of the. goodness of the title, and to secure to the purchaser, such a title as he contracted for.

But the title which the purchaser will be decreed to accept, must always be such as he contracted for; and he should never under a contract for the legal title be compelled to take a conveyance of the equity only. Were we therefore to concede, that the ap-» *557pellee is shewn to be invested with the equitable right to the laud, he would nevertheless, in consequence of the lack of the legal title, be unable to ful» fil his contract with the appellant; and being unable to make a good title, the appellant was at liberty to refuse, and it was incompetent for the court to com» pel him to accept a conveyance.

The petition is therefore overruled.