#### Fitch *v.*Polke.

*Tuesday, December*9.

Chancery. A judgment at law for a part of the purchase-money of real estate, was enjoined on the ground that the vendee had been deceived by the vendor as to the title, and had remained ignorant of the defect therein, until after the rendition-of the judgment.,

The answer to the bill alleged that the complainant knew the facts in the case pending the suit at law, and pleaded -the same in bar. *Held,*that the *onus probandi*was on the defendant.

SUIT in chancery certified from the *Cass*Circuit Court.

Sullivan, J.

— The bill in this case was filed to enjoin the collection of a judgment at law, obtained by *Polke*against *Fitch,*on a note for 685 dollars, the balance of the purchase-money for a section of land, sold and conveyed by *Polke*to the complainant. The bill alleges that, in the purchase of said land, the complainant was grossly deceived and defrauded by the defendant, who represented, at the time of the sale and frequently before the sale, that he had a good title. It is alleged that the land belonged to *Aubenaubee,*a *Pattawatima*Indian, in his lifetime; that he died, without having conveyed said land, intestate, leaving two sons, his heirs at law, one of whom is a minor; that certain proceedings were had in the *Wabash*Probate Court, after the death of *Aubenaubee,*by which the interest of the minor heir in and to said land was directed to be sold; that a sale of the undivided half of said section was made by the guardian of the minor heir, pursuant to the order of the Court; and that, at said sale, one *John T. Douglass*became the purchaser; that said proceedings were all h’regular and the sale under them was void. It is alleged that *Polke*had no title to the land except what he *565derived from *Douglass,*yet that he conveyed to the complainant the entire section, &c. The complainant states, that he was wholly ignorant of the fact that *Police*had not a good title, until after the judgment, now sought to be enjoined, had been .rendered. The deed from *Police*to the complainant, the proceedings in the *Wabash*Probate Court above referred to, and the deed from the guardian of the minor heir of *Aubenaubee,*are made exhibits. An agreement between' *Ewing, Walker,*and Co., *A. Hamilton*and Co., and *John T. Douglass,*is also made an exhibit, by 'which it appears that *Ewing, Walker,*and Co., and *A. Hamilton*and Co., relinquished to *Dotiglass*all claim to the section of land sold by *Polke*to the complainant; but what title or claim they had to the land is not shown. The bill further alleges th^t *Police*is insolvent, and has removed beyond the jurisdiction of this state.

The answer of the defendant admits the sale and conveyance of the entire section of land as stated in the bill. It admits that a large portion of the -purchase-money was paid by the complainant at the time of- the sale, and that the -judgment at law, mentioned in the bill, is for the residue. It admits that the defendant hacj no other title to the land than that derived from the heirs of *Aubenaubee*through *Douglass,*and insists that it was a good and complete title. It alleges that the complainant was, at the time of the purchase, fully acquainted with the defendant’s title; denies that any false representations as to the title were made; and says that, pending the trial, the complainant filed pleas in bar of the note on which the judgment at law wras obtained, and after-wards abandoned the defence. The defendant admits that he does not reside within the jurisdiction of this state, but denies the charge of insolvency.

No depositions are on file; and the cause is submitted to us on bill, answer, and exhibits.

There are certain facts in this case about which there is no controversy between the parties. It is agreed, that the defendant sold to the complainant the entire section of land mentioned in the bill, for the price of 1,700 dollars, and that all of the purchase-money was paid except the sum of 685 dollars. It is also agreed, that the land mentioned is one of *566the ten sections of land granted to *Aubenaubee*by the treaty . entered into'between the *United States*and the *Pattawatimas*of the state of *Indiana*and *Michigan*territory, on the 27th day of *October,*1832. The parties also agree, that *Aubenaubee*died intestate, leaving two sons who inherited the land mentioned, and that one of them is a minor. With those facts admitted, the exhibits show that *P,olke*had title only to the half of the land. The title to the remaining half is in the oldest son of *Aubenaubee.*It is therefore not necessary, ac-' cording to this view of the case, to decide whether the sale of the minor heir’s interest', made under the decree of the *Wabash*Probate Court, be valid or not. Admitting that it is valid, and that the proceedings must stand until they are reversed, it is manifest that *Police*sold to the complainant land for which he had no title.

*C. Fletcher, O. Butler, S. Yandes,*and *W. Wright,*for • the complainant.

./. *B. Niles*and *II. Cooper,*for the defendant.

We are satisfied, therefore, that this is a proper case for the interference of a Court of equity. It appears' that the complainant was deceived by the false representations of the vendor as to his title, and that he remained ignorant of the fact that the vendor had not a good title, until after the rendition of the judgment at law. This excuse for not defending at law is sufficient to authorize the interference of a Court of'equity. *Williams*v. *Lee,*3 Atk. 223.—*Simpson*v. *Hart,*1 J. C. R. 98.—*Shelmire*v. *Thompson,*2 Blackf. 270. The defendant, it is true, alleges that the complainant knew all the facts of the case as well pending the suit at law as he did when he filed his bill, and that he pleaded the same matter in bar of the action at law; but no proof of the allegation, although the proof was within his reach if the allegation be true, has been adduced. *Bowser*v. *Bliss, May*term, 1845.

*The Court*rendered a decree enjoining the judgment, and for costs.