
    Case 48 — Action to Recover Land
    June 22.
    Thomas v. Sweet.
    APPEAL from mason circuit court.
    Judgment for Defendant and Plaintiff Appeals.
    Affirmed.
    Vendor and Purchaser — Failure of Consideration — Innocent Purchaser — Estoppel.
    Held: 1. Where defendant conveyed land with general warranty to plaintiff at the request of P., to whom defendant had executed a title bond for the land, and who had, for a valuable consideration, subsequently sold the land to plaintiff, in an action by plaintiff to recover the land defendant was entitled to have his deed to plaintiff canceled, plaintiff- being merely the assignee -of P.’s equity, and standing in his shoes, and it appearing that there was a total failure of consideration by reason of the fact that the supposed tract of land which P. .was to convey to defendant had in fact no existence.
    2. The fact that defendant advised plaintiff to purchase the land from P. does not operate as an estoppel, as plaintiff had notice of a stipulation of the title bond execuled by defendant that defendant who was then in possession of the land, should remain in possession until a certain time in the future, when he was to receive title to and possession of the land which P. was to convey to him, and-that, unless he should receive such -title and possession, the contract was to be “null and void.”
    CHIEF JUSTICE PAYTER and JUDGES GUFFY and WHITE dissenting. ; !
    E. L. WORTHINGTON and A. E. COLE & SON, attorneys for appellant.
    On April 3, 1896, appellee and his wife conveyed to appellant by deed of general warranty, a tract of land in Mason county, Kentucky, containing about 120 acres. On November 2, 1896, appellant brought this suit in ejectment against appellee to recover possession of said land. «Appellee answered, and by counterclaim asked to have his deed canceled on the ground that it was obtained by fraud from him, and that the consideration therefor had failed. On his motion the case was transferred to equity, proof taken and on final hearing the court below granted to appellee the relief sought, to-wit, the cancellation of said deed. From this judgment appellant prosecutes this appeal.
    The occurrences that led up to the making of this deed were, in brief, these:
    In December, 1895, one, X Win Parker, claiming to act as agent for one, Sewell, traded with appellee some Missouri land for appellee’s land, the same that was afterwards deeded to appellant. Pursuant to said contract appellee signed a deed conveying his land to Sewell and delivered it to Parker. That deed was not put to record. Thereafter Parker proposed to trade said farm he had gotten from appellee to appellant for some real estate that appellant owned in Lewis county, Kentucky. On February 14th a contract to that effect was made between Parker and appellant, the latter agreeing to pay $850 to boot. He paid $100 in cash on said day and $490 on Febrhary 19th, leaving a balance of $260, the amount of a building association mortgage on it, and on said date, February 19th, he conveyed to Browning and wife (daughter and son-in-law of Parker) the Lewis county land by Parker’s direction. Prior thereto appellant had made inquiries of appellee in regard to the land and appellee showed him over the farm and encouraged him to make the trade with Parker. By two deeds dated March 6 and April 8, 1896, Parker conveyed to appellee the Missouri land. Appellee had previously gone out to Missouri and gone op. the land with Parker and looked at it. On April 3, 1896, appellee, by Parker’s direction, deeded the land he had previously sold to Parker, direct to appellant, and on same day wrote to appellant saying that Parker had fully complied with his contract with him. Appellant accepted this deed as a compliance with Parker’s contract to maake him a title and thereafter paid the balance of the cash payment, $260, to the building association. Afterwards appellee discovered that the land described' in Parker’s deed to him was not located in Taney county, Missouri, at all, as stated in said deed; that in fact there was no land in Taney county answering to that description. He therefore claimed that Parker had practiced a fraud upon him in deeding land to him as lying in Taney county, Missouri, when there was no such land there, and on that ground asserts a right to have his deed to appellant rescinded:
    We claim that there is one simple question involved in this ease, which is: Has appellee any equitable rights against appellant to have his deed to appellant of April 3, 1896, cancelled? If he has not, it matters not what may be his equitable rights -against Parker or Sewell. Appellant’s title.Is .derived from-the deed to him from appellee and not a title derived from Parker.
    . If appellee had conveyed to Parker and - then Parker had conveyed to appellant, and appellee had an equity against Parker to have the deed to him set aside for fraud tnat equity would destroy appellant’s title. But no such case is presented here.
    POINTS AND AUTHORITIES.
    1. A deed of general warranty estops the grantor to dispute the title of the grantee. 11 Am. & Eng. Ency. of Law (2d ed.), p. 402; Bigelow on Estoppel, 332.
    2. The destruction of a deed by the consent of the grantor and grantee both, in its effects, operates just like a reconveyance to the grantor. 2 Jones on Real Property, see. 1259.
    3. The doctrine of equitable estoppel; or estoppel in pais, is often invoked to protect an otherwise invalid title against asault from the legal title holder. It is never needed by the holder of a perfect title to protect that title against assault from somebody else.
    4. The equitable doctrine of bona fide purchaser for value without notice is invoked only hy a person whose title is defective. It is not a rule of property,, but merely a rule of inaction, and the holder of a perfect title never needs to invoke it. 2 Pomeroy’s Equity, sec. 739-743.
    5. It is arguing in a circle to say that appellant’s title is defective because appellee has an equity to have his deed cancelled. That is assuming the very question in dispute. Taylor v. Russell,. 10 Eng. Ruling Cases, 552.
    6. Cancelling an executed contract is an exertion of thé most extraordinary power of a court of equity, and it ought not to be-exercised -except in a clear ease. Atlantic Delaine Co. v. James, 94 U. S., 207; Neel v. Neel, 16 Ky. Law Rep., 193; U. S. v. Maxwell Land Grant Co., 121 U. S., 325; Bispham on Equity, sec. 475.
    7. A deed can not be rescinded or cancelled at the suit of the grantor on the ground that he was induced to execute i.t by the fraud of a third party, unless the grantee participated in or -connived at the fraud. This doctrine is applicable alike -to executory and executed contracts. 1 Bigelow on Fraud, 253: Kerr on Fraud and Mistake, 339; Pollock on Contracts, 530 (Wald’s 2d ed.); Lawson on Contracts, sec. 236; Fairbanks v. Snow, 145 Mass., 153; Nash v. Minnesota Title Co., 163 Mass., 574; Compton v. Bunker Hill Bank, 96 111., 301; Fightmaster .v. Levi, 13 Ky. Law Rep., 412; Lee v. Yaughn, 1 Bibb, 235; Morrison v. Clay, Hardin, 431; Wheeler v. Traders’ Deposit Bank, 21 Ky. Law Rep., 1416.
    8. Notice to affect appellant’s rights must be notice, not of Parker’s contract with appellee, but of Parker’s fraud on appellee. Morrison v. Clay, Hardin, 421.
    9. A person is not responsible for the fraud of another, unless that other is his agent or servant, and the fraud was committed for the master’s benefit, and not in pursuit of the agent’s own .private ends. Pollock on Contracts, 531 (Wald’s 2d ed.); 12 Eng. Ruling Cases, 306.
    10. A want or failure of consideration is no ground for setting aside a deed. Nothing but fraud or palpable mistake is ground for rescinding an executed contract. 3 Washburn on Real Property, 391; Neel v. Neel, 16 Ky. Law Rep., 193; Simpson v. Hawkins, 1 Dana, 305; Buford v. Guthrie, 14 Bush, 695.
    11. There is one exception, or’ apparent exception, to this doctrine, where the consideration is the agreement of the grantee to •support and take care of, or render other continuous services to the grantor. In which .case the deed may be canceled for the willful refusal of the grantee to render the services. Jenkins Y. Jenkins, 3 Mon., 327; Scott v. Scott, 3 B. Mon., 2; Reeder v.' Reeder, 89 Ky., 529; Cash v. Cash, 19 Ky. Law Rep., 686; Bailey v. Herron, 20 Ky. Law Rep., 1957; Lane v. Lane, 21 Ky. Law Rep., 9.
    12. If those cases do establish a real exception to the doctrine laid down in Neel v. Neel, 16 Ky. Law Hep., 193, and other like cases, the present case is not within the reason or spirit of .the exception.
    13. The consideration for the deed in question was the obligation of Parker to make appellant a title .to the land in controversy, ■for which appellant had paid him. That consideration has not failed. Morrison v. Clay, Hardin, 421; McCoun v. Delaney, 2 Bibb, 440; Copeland v. Curry, 1 Bibb, 176; Copeland v. Fugate, 1 Bibb, 178; Davis v. Payton, Hardin, 427; Harrod v. Black, 1 Duvall 180.
    A. M. J. COCHRAN, attorney for appellee.
    The fundamental facts out of which this action has arisen are these:
    1. Prior to December 19, 1895, appellee conveyed his farm in Mason county, Kentucky, and agreed to deliver the Morgan notes to Parker as agent for Sewell for a certain consideration not then received, and on that date a writing was executed setting forth, in detail, what that consideration was, and providing that if Parker . did not. comply. with his .part of the contract it was to he null and void, and appellee was still to hold his property.
    2. On February 14, 1896, Parker made a written contract with appellant for the sale of appellee’s farm to him for a consideration therein specified, and thereafter in the same month appellant paid him $590 of the money consideration agreed on, and delivered to him a deed for the Burtonsviile, Lewis county, property, possession of which appellant retained and still has.. This contract between appellant and Parker did not include the-three Morgan notes, and so far as this record shows there was-no contract between them with reference fo said notes.
    3. At this time appellee was still in possession of his farm and had received no part of the consideration which he was to have in the trade between him -and Parker.
    4. Appellant, in law if not in fact, knew this, and that appellee’s trade with Parker was void, if he did not receive .it with his money and deed.
    5. Subsequent to this, in ’March, 1896, and on April 3, 1896, Parker-delivered to appellee deeds for 400 and 140 acres of land purporting to be in Taney county, Missouri, one of the conveyances being supposed to be a part of the consideration he was to receive, and the other being supposed to be security for, or in satisfaction of, the rest thereof.
    6. There was no such land in existence, and, notwithstanding such conveyances, appellee received no part of said consideration.
    7 and 8. Appellee believed in good faith that he had received the consideration stipulated for, and so believing at the request of Parker, and to -save the expense of recording two deeds, on April 3, 1896, conveyed his farm to appellant and delivered the Morgan notes to him, such conveyance not being in pursuance to any contract of sale between appellant and appellee, hut in. pursuance of a contract between appellee and Parker, which. Parker had assigned to appellant.
    
      S. On same date appellee delivered to Parker a written certificate-to the effect that Parker had complied with his contract with appellee in full, which certificate Parker subsequently delivered to appellant.
    10. Subsequently to this- appellant paid off a building association debt of appellee’s which was a lien on the farm, hut before he did so, Parker turned over to appellant in money and the Fannin debt an amount equal to the sum so paid by him. Appellee having theretofore turned over to Parker said Fannin debt and personal property sufficient to satisfy said building association debt.
    
      11. The transaction, ,so far as Parker was concerned, was a fraud practised both on appellee and appellant.
    1?. Appellant was in no way misled by any statement or action on part of appellee in parting with his property, and appellee was gjiilty of no conduct which appellant can claim should estop him from setting up the rbal truth as against appellant. He trusted solely, to Parker in the transaction, and was not led to change or alter his position by anything said or done or omitted to be said or done by appellee.
    We submit that the evidence justifies us in claiming that these are the facts of this case, and further that the mere statement of them is sufficient to lead to the conclusion that appellee was entitled to his farm, and the Morgan land back from appellant, and that the judgment appealed from should be affirmed.
    SUMMARY OF AUTHORITIES.
    1. The following authorities relied on by appellant's counsel have no application to this case: Fairbanks v. Snow, 145 Mass., 153; Nash v. Minnesota, 163 Mass., 574; Compton v. Bunker Hill Bank, 96 111., 101; Fightmaster v. Levi, 13 Ky. Law Rep., 412; Lee v. Vaughn, 1 Bibb., 235; Morrison v. Clay, Hardin, 421; Wheeler v. Traders’, &c., Bank, 21 Ky. Law Rep., 1416, because Parker was not a third party t9 the transaction, within the meaning of those decisions. He was appellant’s assignor or vendor, and all the right's appellant had were acquired through and under Parker.
    2. Failure of consideration is good ground for cancelling a deed.
    (1) Cases relied on by appellant’s counsel, as laying down contrary rule, not in point, and do not lay down any such rule.
    (2) Cases cited by appellant’s counsel, as establishing an ■exception to any such rule, are not an exception, but establish ithe rule, as claimed by appellee.
    (3) Authorities in addition to those just referred to, upholding rule, as claimed by appellee. Robinson v. Bright’s Exr., 3 Met., 30; Bedal v. Sleth, 3 M'on., 290.
    3. What necessary to constitute a person a "bona fide purchaser for value without notice. Young v. Schofield, 132 Mo., 650.
    4. Possession itself constitutes notice. Tate v. P. G-. L. & D. Co., 37 Fla., 439.
    5. Knowledge of facts 'Sufficient to put a prudent man on inquiry constitutes notice. Conn. Mut. Life. Ins. Co. v. Smith, 117 Mo., 261; Anderson v. Blood, 152 N. Y., 285.
    6. Notice before payment of purchase price is all that is necessary to keep one from being such a purchaser.
   Opinion of the court by

JUDGE O’REAR

Affirming.

Appellee, a farmer aged about 70 years, living in Mason county, Ky., and a ‘'promotor,-'” named J. Winn Parker, of Weston, Mo., in December, 1895,. entered into a contract by which appellee agreed to exchange' his farm, of some 120 acres, in Mason county, Ivy., -and notes, held by him to the amount of $642.80 and interest against one J. W. Morgan (secured by- lien on land in Mason county), to one E. Sewell, the principal for whom J. Winn Parker assumed to be acting, appellee to receive in exchange for his land and the Morgan notes a tract of land in Taney county, Mo., represented to contain 400 acres, and to have surrendered to him two notes of $150 each, theretofore executed by appellee to Parker, and to receive Parker’s note for $500, due October 15, 1896. Appellee was then living on the farm proposed to be exchanged by him, and he continued to so reside until after the institution of this suit. It appears that Parker had formerly lived in Lewis county, Ky., adjacent to Sweet, and had, in the early part of 1895, been in Kentucky, when he sold to appellee, Sweet, an 80-acre tract of land in Taney county, Mo., taking for it Sweet’s two notes for $150 each, due June, 1896, and June, 1897, respectively (the notes of that amount named above), and a jack at $500, making the consideration for the land $800. In October, 1895, appellee, went to Missouri with Parker, to examine the land, and was shown by-Parker as fine a body of land as one might covet, judging from its description given by appellee. Naturally, appellee was much pleased with his venture, and was an easy mark for the subsequent transactions. Soon Parker again ■appeared in Kentucky, and without much apparent difficulty, induced appellee to execute the pontract first herein named. Parker then set about selling this Kentucky purchase. He visited appellant’s store in Lewis • county, not far distant from the Sweet farm, and negotiations between appellant and Parker ensued, resulting in a tentative trade, ^•'provided the title was all right,” as appellant says, whereby appellant was to buy of Parker' the Sweet farm, land give in exchange therefor a dwelling house and lot and storehouse in the village of Burtonsville, Lewis county, and $800 additional. This was about February 4, 1896. Appellant and Parker then went to and did examine the Sweet farm, which was to appellant’s satisfaction, whereupon he paid Parker $109.50, a check for.$100, and a check for $490, making $690.50 of the $800. The last of these .payments was made February 19, 1896. When appellant went with Parker to examine the Sweet farm, after viewing part of it, they' went to appellee’s residence1 to examine it. Of course, they were invited by appellee to stay for ■dinner, it being near that hour-, and after and at dinner there occurred certain conversations that are relied upon by the parties respectively as constituting estoppel and ' notice. That is, appellant asserts that then appellee told him that he (appellee) had traded his farm to Parker for a farm in the West, and was loud in his praise of his Western acquisition; and also that appellee advised appellant to buy the farm now in dispute — the Sweet farm. On the other hand, appellf e claims that on his initial visit appellant learned of such facts as in law put him upon inquiry and notice, if he did not, indeed, acquire sufficient actual knowledge of the terms of the contract between appellee and Parker, to cut off appellant’s ; claim of being a bona fide purchaser, for value, and innocent, or without notice. From the proof it is made satisfactorily clear that appellee did at that time feel satisfied with his exchange, was anxious to consummate it, and urged appellant to buy this •farm. We-are equally; well satisfied ffom the proof that on that occasion appellant learned of the terms of the contract between appellee and Parker, which included the proviso that appellee was to retain possession of his farm till October 15, 1896, when he was to be paid the $500 cash, receive his two -$150 notes, and receive title and possession to the 400 acres of Taney county, Mo., land; and that, unless these conditions were all performed, the contract between appellee and Parker “was to be null and void.” Neither appellant nor appellee seemed to question Parker’s honesty, and both seem to have been equally and surprisingly credulous in believing his representations. Appellant shows by his testimony that he regarded the transaction between appellee and Parker with strange indifference, — undoubtedly under the belief that he was not legally concerned in it, — >. and for that reason, evidently, failed to take that careful note of its details and conditions evidenced by the character of his testimony; although it is pretty conclusively shown that at some period of the transaction, and within a short time of the date when the possession was due him under the Parker contract, he realized • that appellee was being or had been “swindled,” as he expressed it, but, presumably under the same idea of nonliability, claiming he “was an innocent purchaser.” After- appellant had bought this land from Parker, and had paid him the $590, and conveyed the Lewis county property to Parker’s daughter and her husband (though appellant still retained possession of it), Parker induced appellee to make appellant a deed for his farm in Mason, and to deliver to appellant the Morgan notes. This was on April S, 1896. IThese notes were subsequently surrendered to Morgan in consideration of his conveying appellant the land upon which they were a purchase-money lien, 22.67 acres adjacent to appellee’s farm. Notwithstanding appellee’s deed to appellant, it was understood by appellant that appellee had the right to hold the possession of the farm till October 15, 1896. From the date of this conveyance till within a few days of October 15, 1896, appellee undoubtedly treated the farm as belonging ultimately to appellant, believing that he would, at the date he surrendered his place; receive the possession of the 400-acre plantation in Missouri. Parker even was to .furnish a car to move appellee, his family and chattels, and to come after them; all for a guarantied outlay of not exceeding $25. In March, 1896, Parker delivered to appellee a deed for 400 acres of land, described as being parts of sections 5 and 9, township 21, range 19 W. of the fifth P. M., in Taney county, Mo., with covenants of general warranty and seisin of fee-simple title thereto. In satisfaction of the $500 note due appellee October 15, 1896, and to insure the delivery of the two $150 notes, or, as Parker claims, in full satisfaction of all his obligations to appellee, Parker also conveyed1 appelleel another tract of 80 acres adjoining these other Taney county lands; making, as appellee thought and said, “a square mile of land” that he owned in that fertile region. On April 8, 1896, when the deed was made to appellant above mentioned, appellee and wife gave to Parker a writing called a “certificate,” showing that all liens had been paid on' the Sweet farm, except the mortgage named below, and that appellee had no further claim against it. This paper subsequently came to the hands of appellant. There was a mortgage lien on appellee’s land to a building and loan association for $265.80, which he discharged by giving Parker a horse, a colt, a cow and calf at $130, and land notes lof one Fannin for about $130. This mortgage appellant subsequently paid, and, although the proof is not absolutely convincing, we feel authorized in adopting the chancellor’s view in holding that Parker paid appellant $130 cash and gave him the Fannin notes to reimburse him for that outlay. Some few days .before October 15, when the possession of these respective lands was due to .be rendered, appellee, becoming suspicious all but too late, wrote Parker to meet him at Kansas City, and went out to locate his lands, and have them surveyed, and to take possession. Parker failed.to respond. Appellee went to his house, but he refused to go along to see the land, claiming sickness in his family. Appellee then went to the county seat of Taney county, having his suspicions confirmed en route; and there definitely learned, that there was' no ' such land in existence as that described in his dee'd. Indeed, the facts are township 21 of range 19, Taney county, is but a fractional township, and it has no section 5, and no part of section 9, agreeing with the description in appellee’s deed. In truth, appellee had simply been swindled as to this Missouri land venture. Ee then refused to surrender possession of the Mason county farm to appellant; hence this suit in ejectment by appellant. To the suit appellee pleaded in avoidance of his deed, which was- set up and relied on in the petition: (1) The1 facts constituting the fraud of Parker in the transaction in which appellee agreed to and did convey his land, and that appellant had knowledge and notice of those facts, and therefore took the land subject to appellee’s equities in the premises. (2) It was pleaded that there w'as an entire failure of consideration upon which the conveyance to appellant had been made, and therefore, in equity and conscience, appellant ought not to hold that which he had acquired, but ought to return it- to appellee. A rescission was prayed for in the answer, which was made a counterclaim. Issue being joined On these pleas, a large volume of proof was taken, from which we gather and find the statement of facts above. The cause, on appellee’s motion, having been transferred to and tried in equity, the chancellor decreed a rescission of the conveyances, and adjudged appellant to execute and deliver to appellee a deed conveying both the original farm conveyed him by appellee and the land acquired from Morgan in satisfaction of his purchase-money notes. Hence this appeal.

It is the ciontention of the appellant that he was an innocent purchaser for value, and without notice of Parker’s fraud; that it was the fraud of Parker that was the vicious element in the transaction, and that appellant was as ignorant" and innocent of it as was appellee. Again, he argues that appellee stood by and saw him invest in the land, knowing that he. was doing so, and urged or advised him to make the purchase; that, therefore, he is estopped now to question appellant’s title. He further argues that appellee can not deny the effect of his warranty deed, and can not set up a superior equity to the legal title he has conveyed by his warranty deed. He also argues that there was not a failure, total or partial, of the consideration for the conveyance to him, for he says the consideration for his conveyance moved from appellant (being what he was induced to part with to Parker therefor), and it mattered not in law whether the consideration moved to the grantor or another, it was sufficient if the grantee had parted .with a valuable asset in exchange for the conveyance. . The case has been prepared with much care and skill, and argued with rare ability. To dispose of these questions, it is first necessary that the legal relative positions of these parties be defined, and then constantly borne in mind. The original contract concerning the land in litigation was between appellee, Samuel Sweet, andl E. Se-well; the latter ostensibly represented by his agent, J. Winn Parker, who presumably was authorized throughout to do for his principal what he did. Appellee undertook to convey the land and Morgan notes to Sewell, in consideration that Sewell would convey or cause to be conveyed to appellee title to 400 acres of land in Taney county, Mo., deliver to appellee the $500 note of J. Winn Parker, “Agt.,” due October 15, 1896, and deliver to appellee two $150'notes previously executed by him to Parker, and deliver to appellee the possession of the Missouri land on or before October 15, 1896; appellee to retain possession of his land till then; and, “in case said Parker, as agent, fails to comply with his part of this contract, then the* contract is null and void, and said Sweet is still to have and hold the farm on which he now resides.” This was a title bond, — an ex-ecutory contract, — showing upon what conditions appellee would convey to Sewell the title to the Mason county farm. Appellee did nothing in that which could have misled another dealing with Sewell, or his agent, Parker, with reference to this land, to have believed that Sewell or Parker had any right or title to it, save such as was conditioned upon Sewell’s doing or causing to be done all the things provided to be done for Sweet before the contract to convey by Sweet became enforceable. Sweet continued in possession of the farm, as stated before, not merely as tenant of Sewell, but as owner, subject to the conditions of his contract with Sewell. In this state of things, Sewell’s agent, Parker, proposes to appellant, W. H. Thomas, to sell him the Sweet farm, or rather exchange it for certain property of appellant’s and a certain sum of money additional. This proposition 'being accepted, was. equivalent to Sewell’s transferring to Thomas, Sewell’s equity in the contract of December of 1895, under which he was to acquire Sweet’s farm. Sewell (or Parker, which is the same thing) could not, of course, convey to Thomas a greater-estate in the property than he (Sewell) had, nor could Thomas acquire from Sewell a greater estate than Sewell had. True, appellee, Sweet, might, by such conduct as. should operate upon the- conscience, be estopped to deny that Thomas took a greater title from Sewell than Sewell had to convey; but, independent of the question of estoppel for the present, Thomas merely acquired Sewell’s equity in the property. Thomas paid Sewell’s agent, as consideration for the transfer of that equity, the houses and lots (valued at about $1,100 and about $700 in money. Whether that was an unreasonable price- for the transfer to himi of the equity, or whether it was a wise or unwise transaction for Thomas, can not affect the legal question involved. He bought Sewell’s equity, and paid Parker for it. He then “stood in Sewell’s shoes.” Independent of estoppel, — that is, if Sweet had never been seen by Thomas, and had made no representations whatever to Thomas concerning the matter, — it doubtless would not be argued that Thomas had any higher or better or other right to demand a conveyance of this land than Sewell had. Therefore (still -waiving the question of estoppel for the present) Thomas would only be entitled to a conveyance of the Sweet farm -on the condition that Sweet first received a good title to and full possession of the 400 acres of Missouri land by October 15th, and received $500 cash and the possession of his $300 notes by that date. If, then, there should have been a failure of this consideration (a total failure, — as we find there was), could Thomas have demanded and compelled the execution by Sweet of his part of the contract? If not, why not? Because the courts will not compel the execution or performance of a contract which it is inequit able to enforce. And it would, of course, be inequitable to compel Sweet to give up his farm to his vendee when the latter could not and would not pay him the agreed consideration for it. But it is here argued — and with much earnestness and shill — that the contract ivas executed so far as the conveyance by Sweet was concerned. It is said he' ■had voluntarily executed his part of the contract by making and delivering to Sewell’s assignee a general warranty deed to the land. Appellant argues that -an executed contract can not be rescinded, except in that line of cases where the consideration is a “continuing one;” notably the cases known as “Support Cases,” and illustrated especially in Scott’s Heirs v. Scott, 3 B. Mon., 2, and Cash v. Cash (19 R., 686), (41 S. W., 579). We do not understand that the law recognizes sucha limitation, or admits such an impotence. In a proper case the law will rescind even an executed contract, will restore the parties to their former position, when in good conscience one should not be suffered to maintain the advantage in the executed agreement. Thus, if one pays for an article represented to be of a certain quality, or fit for a certain use, which afterwards develops to be of a different quality, or unfit for the use represented, though the contract is executed, rescission may be had by the injured one where the foundátion of the action is mistake or actual fraud. If one pays for an article under the representation and belief it has an existence, when it has not, though the contract is executed as to the payor, he may have rescission. It is not permitted in conscience that one should retain the consideration and not give the subject of it. Bish Cont., section 70; Robinson v. Bright’s Ex’r, 3 Metc., 30; Bedal v. Stith, 3 T. B. Mon., 290; Lane v. Lane, 106 Ky., 530 (21 R., 9) (50 S. W., 857).

It is further argued for appellant that there could not be a failure of consideration in this case, because it is not necessary that the consideration should move to the grantor in the deed; it is sufficient if it moves from the grantee. The proposition stated is elementary, and not questionable. But we hold that the consideration for the execution of this deed was not Thomas’ conveyances and payments to Parker, but Parker or Sewell’s agreements to convey the Missouri land, and deliver the notes and cash to Sweet. Thomas’ conveyances and payments to Parker were the consideration for the assignment or transfer of Sewell’s equities in the Sweet contract to 'Thomas. Counsel for appellant cite and mainly rely on the case of Morrison v. Clay, Hardin, 430. In that case, Morrison and Mansel entered into a contract with West, who claimed to be the inventor of a machine for cutting and heading nails, for the purchase of said invention, for which machine they agreed to give him $9,375. West was to proceed at once to Washington, and obtain patents for his invention, and make due conveyances thereof to the vendees named. Subsequently the three entered into a contract practically abrogating the first one, and becoming partners in the manufacture of the articles named; but Morrison and Mansel were to pay tworthirds of the original price, and' that in making those payments they were to have credit for certain debts of West settled or to be settled by them with his creditors. Peacock, Wrenshall & Co., for whom Mr. Henry Clay, the appellee in that action, was the agent or attorney, obtained a judgment for a considerable sum of money against West and one Gutherie, Morrison thereupon agreed with Mr. Clay to the settlement of this particular debt, giving him therefor certain obligatory bonds of Morrison to Clay in consideration that Mr. Clay, for his said clients and principals, would release the judgment debt above named, which was accordingly done. Thereafter it was discovered that WTest had perpetrated a fraud on Morrison, in that he was unable to obtain patentsi for his machine on the ground that it was not patentable. Morrison, having executed bond to Clay, as agent aforesaid, for the payment of the sum agreed on to be in satisfaction of the judgment debt of his principal, now sought to be released from these obligations under the facts recited above, arguing that Clay was but the assignee of West, and occupied no better position than West could have occupied under the contract. Mr. Hardin and Mr. Clay, for the defence, contended that Clay was not the assignee of West, but was an original contracting party with Morrison. We quote from the argument of the distinguished counsel in that case: “It is not upon mercantile principles that we claim a right to recover, but upon the1 well-settled principles of the common Ihw that Clay, for Wrenshall, Peacock & Co., gave to Morrison a valuable consideration for these bonds. That consideration was the release of their judgment against West and Gutherie. That release was given, and was made complete, when those bonds were executed.” Again, they said: “Clay never entered into any contract with West on this subject; nor does he claim under West, and can'not, therefore, be affected by any equity which may extend to West.” Chief Justice Edwards, delivering the opinion of the court, held: “The consideration given by Clay was the release .or discharge of the judgment against West and Gutherie, at Morrison’s request; and the consid©ration moving from Morrison to Clay for the release was the execution of the bonds in question.” The court further intimated that, had Clay taken or derived his claim or title through West, he would have taken as assignee, and therefore subject to the defenses to that contract. In our opinion, the case just considered is clearly and easily distinguishable from the case at bar, and, instead of questioning, it virtually admits the principles 'here applied.

The estoppel pleaded must be unavailing to appellant. We can not determine from the record that appellee did or’ said anything prior to the execution of the paper of April 3d that could have misled and did mislead appellant, or that did induce him to part with his money or property to Parker; for it appears that appellant made his conveyances and paid all the money to Parker prior to April 3, 1896. True, he paid the $265 to the building association after that date, but, as we have found above, he received an equivalent consideration for that, the transaction amounting in reality to appellee’s having paid that debt. To constitute an estoppel, appellee must have said or done something calculated to and that did cause appellant to part with his property or money, or change his position to his damage. No such fact is satisfactorily shown by the record, and therefore the plea can not prevail.

We do not deem it necessary to determine what notice attached to Sweet's actual occupancy of the premises when sold to appellant, as we find the sufficient fact that appellant had actual notice of the terms of the Sewell-Sweet contract of December, 1895, before he had parted with any property or money to Parker; and because we find the further fact, and have applied the rule of law, that appellant took under Sewell (or Parker) as vendee of his equity in the said contract of December, 1895, and was thereby conclusively charged with full notice of its terms and conditions in a controversy with Sweet, the other1 party to the contract. It follows from the foregoing that appellant was not “an innocent purchase for value, without notice” of Sweet’s equities.

That one can not deny his own warranty deed, or set up a superior title to the one he has conveyed by such an instrument, is true. But that rule does not apply, of course, where the grantor in such a deed brings his appropriate action to vacate it, and have it cancelled by decree of court, because of fraud in its obtainment, or because of the failure of the consideration upon which it was executed. Appellee’s counterclaim in this action was an appropriate manner, under our practice, of making the direct attack to have the conveyance canceled. The judgment is af firmed.

Chief Justice Paynter’s

dissenting opinion:

As a matter of fact, Thomas did not participate in the fraud of Parker. Neither does the court find that he did, or base its opinion upon that idea, but it erroneously assumes that he occupied the same position in the transaction that Parker did, who practiced the fraud upon Sweet. The court decides the case as if it were an action by Parker to enforce the executory contract against Sweet. Sweet sold the farm to Parker or Sewell, and executed a paper in the nature of a title bond for same, in which there was a covenant that he would make a deed of general warranty. Parker proposed to sell the land to Thomas, but he would not buy it until he had seen Sweet; and upon assurance by him that the matter was all right, he bought it. Thomas and Parker agreed upon the price, and Parker executed and delivered to Thomas a title bond for the farm, in which he agreed to make him a deed with covenants of general warranty. Sweet was not required to surrender the possession of the farm until the following October. Neither would he have been compelled to make a deed for it until Parker had made or procured him a satisfactory deed for the Missouri land. Parker did! this, and had a deed made to Sweet for it, which was satisfactory to him. Then, in compliance with his contract with Parker, he executed and delivered to Thomas a deed to the farm in question, which he accepted in compliance with the terms of the title bond which Parker had delivered to him. So Sweet had accepted as satisfactory the deed for the Missouri land, and, in effect, declared to 'Thomas, by the tender to him of the deed to the farm, that Parker had complied fully with the contract which they had with reference to the land. It was, in effeet, a declaration to Thomas that Parker had the right to sell him the land, and that, in compliance with that right, he tendered Thomas a deed for it. In doing so, he procured Thomas to release Parker on the covenants of the title bond to him by inducing him to accept the deed which he tendered him. There is no principle of law or equity cited by the court, or can, in my opinion, be cited which gives Sweet the right in the action against him to recover possession of the land to defeat it, by showing that Parker practiced a fraud upon him. This could only be done by showing that Thomas participated in the fraud, which was done. The mere fact that Thomas may have known the terms of the contract between Parker and Sweet does not impute to him knowledge that it had been procured by fraud. Its terms do not import that it was obtained by fraud. So the mere fact that Thomas was acquainted with the terms of the contract does not even tend to show that he had knowledge that it was obtained by fraud. There was a consideration to uphold the deed which Sweet made Thomas. That was the obligation of Parker to see that Thomas was made a deed of general warranty for the land. If the title failed, he had to look to the covenants in Sweet’s deed to him for redress. The effort of Sweet in this action is to rescind an executed contract. As Thomas neither participated in the fraud, nor had notice of it when he accepted the deed, it should be canceled. I Bigelow, Frauds, p. 258, says: “A person who voluntarily executes a deed, though induced to do so by fraud, can avoid it only against the party who exercised the unlawful influence, or against one who took title under the deed with participation in or notice of the fraud1.” Kerr, Fraud & M., 339, says: “If the person by whose fraudulent misrepresentation a transaction has been induced is not him. self a party to the transaction, the transaction stands good, and can not be repudiated, If the other party to the transaction has not been party or privy to the fraud. The party defrauded must seek redress in an action in the' case at law for damages against the party of whose fraud he complains. If, for. instance, a man has been induced by the false representations of a third party to deal with! another, he can not have the transaction rescinded, if the other party to the transaction has not been party or privy to the false representation.” Lawson, Cont., section 236, says: “The representation must have been made by .the other party to the contract, or by his agent, oir with his connivance, for a contract is not .affected by the fraud of a third person in which the other party was not implicated. There is no case in which a fraud intended by one man ‘shall overturn a fair and Iona fide contract between two others.” In Fightmaster v. Levi (13 R., 412) (17 S. W., 195), it appeared that through the fraud of the husband the wife was induced to convey her property to Levi. The court refused to set aside the deed, saying: “In the absence of some fraud practiced by Levi, he should not be held responsible for what the husband did in the premises.” In the case of Lee v. Vaughn, 1 Bibb, 235, the facts were such to make the rule announced applicable to this case; the court saying; “That Gullian practiced a fraud on the appellant seems to be most abundantly proven; but, Vaughn, not having been proven to have participated in it, he can not be affected by it.” Morrison v. Clay, Hardin, 421, announces a rule in accord with the authorities from which we have quoted. Additional reasons might be given for reaching the conclusion that I have in this case, but- time forbids further elaboration. It is evident that Parker practiced a- gross fraud upon Sweet, but I do not think it is right to take Thomas’ property to compensate him for the loss he sustained by reason of the fraud of' Parker. I dissent from the opinion of the court.

Judges Guffy and White concur in this dissent.

Response by

Judge Hobson,

overruling petition for new hearing.

The rule as to when a person who voluntarily executes a deed which is procured by fraud can avoid it against other persons than the party who perpetrated the fraud is thus accurately stated in Pomeroy’s Equity Jurisprudence: “The destructive 'effect of fraud upon any contract, conveyance, or other transaction is so essential and far-reaching that no person, however free from any participation in the fraud, can avail himself of what has been obtained by the fraud of another, unless he is not only innocent, but has given some valuable consideration.” Section 899. “The remedy which equity gives to the defrauded person is most extensive. It reaches all those who were actual ly concerned in the fraud, all who directly and knowingly participated in its fruits and all those who derived title from them voluntarily or with notice. A court of equity will wrest property fraudulently acquired, not only from the perpetrator of the .fraud, but, to use Lord Oottenham’s language, from his children and his children’s children, or, as elsewhere said, ‘from any persons amongst whom he may have parceled out the fruits of his fraud.’ There is one limitation. If the property which was acquired by thi fraud has come by transfer into the hands of a bona fidt purchaser for a valuable consideration, and without notice, even though his immediate grantor or assignor was the fraudulent party himself, the hands of the court are stayed, ■and the remedy of the defrauded party 'with respect to the property itself is gone. His only relief must be person al against those who committed the fraud.” Section 918. It will thus be seen that only bona fide purchasers without notice are within the protection of the rule. If Sweet h'ad conveyed the land to Parker, and Parker had conveyed it to Thomas for a valuable consideration, which was paid by him, without notice of the fraud of Parker, the rule would apply, and Thomas would be protected. But that is not the case. Sweet was in possession of the land. He had made no deed to any one. He was to hold possession of the land until he got the land in Missouri. Thomas had notice of this. He knew that the Missouri land was the consideration that Sweet was to get for his farm, and that he had not gotten it and was to hold his farm until he did get it. He parted with nothing when the deed was made by him to Sweet, or upon the faith of that deed, so far as the record shows. When the conveyaince was made, he was charged with notice that it was only in execution of the contract between Parker and Sweet. The making of the deed did not fully execute the contract. It was only a step in the full performance of it. The contract would not be performed by Sweet until he surrendered possession of the farm, and this he was not to do urn til he got the land in Missouri. As, Thomas had notice of all this, and parted with nothing on the face of the deed, he took it subject to the equities of Sweet growing out of his contract with Parker, when the Missouri land turned out to be a myth. There is no middle 'ground. Thomas was not a bona fide purchaser of the land without notice. He therefore stands in no better light than Parker, unless protected by estoppel; and, as is clearly shown in the1 opinion, the facts established are insufficient to make out an estoppel. The deed was as truly the product of the fraud of Parker as the original contract. The arm of equity is not so short that it can not uncover fraud, no matter in what,form the victim may be induced to put the transaction; for, the grosser the fraud, the greater effort will be made to invent means to sanctify it, and the dupe is only as putty in the hands of the schemer who would rob him.

Petition overruled.  