
    Anderson v. Lincoln.
    A purchaser of land cannot have relief in chancery against his contract to pay, on the mere ground of defect of title, without a previous eviction.
    It is a universal rule, that a purchaser buying with full notice of the defect in the title, will not for that defect be relieved in equity.
    APPEAL from Chancery.
    The appellant filed his bill of complaint in the court of chancery, stating that he purchased of the appellee a tract of land and several negroes, at the price of seventeen thousand six hundred and twenty-five dollars. That he gave three several promissory notes for the payment of the purchase money by instalments, and also executed a deed in trust to secure the payment thereof. That he has paid or adjusted two notes payable in 1837 and 1838. That a'large portion of the land so purchased is in a dangerous and precarious condition as to the title, and that several of the parcels were originally purchased of the United States by one Herod, and that the legal title to another parcel is in one William Gartley. That Lincoln is insolvent, and that the trastee is about to execute the deed in trust to pay the sum due on the remaining note, which Lincoln has endorsed to one H. L. Douglass, and prays for an injunction to stay the execution of the trust deed, &c.
    The answer of Lincoln admits the contract as stated in the bill, but states that the purchase money was twenty-three thousand dollars, instead of the sum mentioned in the bill. He denies the payment or adjustment of the two first notes, by Anderson. He admits that the legal title to a portion of the land is in Gartley, but avers that there is a complete and valid chain of equitable title from Gartley to him. That Gartley sold the land to Ames, and gave him a bond for title, and secured the payment of the purchase money by a deed in trust. Ames sold the land to Walter, and gave also a bond for title, and that Walter sold the land to respondent, and executed to him a bond for title : that he sold to complainant with a view to enable him to pay for the land so as to obtain the legal title, and that this was all freely spoken of at the time of the contract, and fully known to complainant : that there was np concealment of the facts in regard to the title, that complainant is in full possession of the land, and has been since the purchase, and has hot been disturbed) nor threatened with'"an eviction. That the title to the land can and will be made. ■
    The answer denies the insolvency of Lincoln. Lincoln executed to 'Anderson at the time of the purchase, a deed in fee simple with full'covenants. The chancellor dissolved the injunction upon the bill and answer, from which decree this appeal was taken.
    Thompson, for appellant.'
    The bill complains of a defect of title generally; and not as to forty acres only. Answer states that the legal title to said land is in William Hartley, and acknowledges he has made a deed of trust, to Walter to secure the purchase money,- and intended the payment from the complainant to go to Waiter, to disincumber the title) and to procure a good one -for complainant. Instead.of that, he, the defendant, has endorsed the noté away to • Harvey L. Douglass, his co-defendant. The answer, that complainant has not paid or satisfied .the first notesj or if he has,..it is unknown to defendant, is not such an answer as will authorize the dissolution of the injunction. He should answer directly- and positively, that he-has the notes, and they are not-paid,, if such be the fact. But his answer shows clearly he has parted with the notes, and does not know whether they are paid or not.. He does not deny the charge of insolvency, iñ a'way required by the authorities. He should answer directly, either that he is, or that he is not insolvent. He says, “this respondent denies his insolvency.” This is no answer at all. Upon the subject of answering, afid the necessity of doing it precisely and positively, see 1 Paige’s Chancery Reports, 100, 426. Hopkins’ New York Ch. Rep. 148. 1 Bland’s Ohio Reports, 195; 1 Simons & Stewart, 235, the case of Wharton v. Wharton, the attention of the court is requested particularly to’ this last case cited. . ' ( ■ , < '
    Here, then is’ a npn-resident who - is insolvent, as the pleadings stand, who acknowledges that the title is in one person, to wit, Gartley; that he has encumbered the' estate by a deed of trust, to another person, to wit, Walter, which is yet due, and says it is nothing to complainant whether (if the land is sold under the deed of trust,) he has the title or not, for he cannot be" injured if the purchaser gets no title. A very singular notion in the counsel, who drew the answer. , When a man’s land is about to be sold, encumbered, and the title obscured,-that he cannot be injured. The answer of defendant, that the complainant knew all.the circumstances of the title, is no answer. . Defendant should set out and show and state the particulars, and what he did know specially and precisely. The-case of Wharton v. Wharton,, 1 Simmons & Stewart, page 235, we- again refer to. The conveyance is a deed of bargain and sale) and under the statute of this state, (Howard & Hutchinson’s Digest,) contains a covenant that the vendor (has an indefeasible title, and -that the estate is unencumbered. . ■ ■
    We submit to the court that the injunction should be held up, that Gartley, Arnes and Walter, should be made parties to the bill, as the answer insists, and leave for that purpose given to amend. That the other defendant, Douglass, should answer, and the money,' or enough of the money due by complainant, should go first to clear up the title, and pay off the encumbrances, which defendant acknowledges are on the land, and the balance be paid to the endorsee of the notes given by Anderson to Lincoln.
    Lincoln says he intended the payment to be made by Anderson, to go to pay off the deed of trust which he had made to Walter, but he has assigned the note away to Douglass, and the trustee is about to sell to' pay Douglass. Now Douglass stands in thé shoes of Lincoln.- Suppose Anderson pays up this note, and Lincoln, a non-resident; -and insolvent,' Anderson has no title, and here is the encumbrance held by Walter, unpaid, for which the land ‘is liable, and may be subjected to sale by the deed of trust from Lincoln to' Walter, at any time. A1Í this can be. remedied, and right and justice be done to all parties, by bringing all parties before the court, by lea.ve to amend as the answer suggests, and the chancellor to direct a sale if necessary, and how the money shall first be paid, to the removal of encumbrances,, &c. first of course; See Fonblanque, 1st Book, pages 188, 180,' 280, as to the practice of1 Chancellor enjoining the collection of purchase money for' defects of title, and all the cases cited in the notes at' the above page, 188. ■
    Howard, for appellees.
    The injunction in this case ought' not to have been retained. The bare fact, that the complainant cannot find.any chain of title upon record, is not sufficient' to entitle him to come into equity. The law authorizes the sale of an' equitable interest, and the ven-dee takes all the equities that were owned by the vendor or that the vendor could subsequently acquire. . ,
    In case of a partial failure of .title, unless, there is fraud or an eviction by title paramount, the party will be remitted to the ■covenants in his deed. 2 Kent, 370; 14 Yes. 144; 2 J. Ch. R. 519; Buckhamstead v: Case,15 Con. 528. , . ■
    If there be no fraud and no covenants, to secure title, the purchaser is without remedy. 2.J. C, R. 523. The latter case is strongly'in point. Vide also 1 J. C. R. 218; 1 Fonb. 370.
    The answer 'denies all concealment, or fraud, and alleges full knowledge of the condition of title on the- part of complainant. A purchaser,- with notice of defects of title, is.not entitled to relief in equity. 3 Marsh. 288; 13 Serg. &. R. 386 ’; 5 Litt. 229; 2 Wheaton, 13; 5 Serg.'& R. 204.
    The insolvency of the vendor is expressly denied by his answer. So far, as it appears from the pleadings, he is perfectly able to make good' his covenants. . . , ’
    The allegations of the bill that the title of. the .vendor is in a precarious state, and that a- perfect title is not to be found in the registry, are not sufficient to warrant the holding up of the injunction, especially1 when the answer states notice to the complainant of the fact that the vendor had only an equitable, title, at the time of the sale. Those who held the legal titles should have been made parties, that the chancellor might have been able to judge of the character of the. title and decree conveyance, if the. vendor were entitled to the same at the time of sale, or had subsequently become so entitled,
    Shackleford, on the same side,
    „ If a' conveyance be made and accepted, and the vendor let into possession, he cannot resort to a court of equity merely on the ground of a defect of title.” See Miller v. Long, 3 Marshall, 335; Miley v. Fitzpatrick, 3 J. J. Marshall, 583; and same, page 701. « Nor can a purchaser having accepted a deed and been let into possession, avoid the payment of the purchase money before an eviction at law by a paramount title; an eviction being an indispensable part of his claim to relief.” See Bumpüs v. Plainer, 1 Johnson’s Ch. Rep. 218;'Abbott v. Allen, 2 do. 519. The only ground then upon which the complainant could in any shape or form hope to retain his injunction is upon the allegation of fraud, which is positively denied by the answer and remains unsupported by proof, and must of course be rejected by the court.
    But this case is still stronger against the complainant than any cited, as we do not seek to recover the purchase money by any other property than the very identical property to which complainant says he has not a good title. Admit he has not a good title, — admit even he has been ousted from possession, — what right has he to estop us from selling such interest as he conveyed us ? He is not the loser; it can be of no interest to him whether the purchaser under the trust sale acquires a good title or not, complainant cannot be injured. The debt is paid by the sale of the same property for which the note was given; and if complainant is not satisfied with his titles, thinks they are “ dangerous and precarious,” he should by all means be willing that it should be re-sold to pay the sum contracted to be given for it, and thus relieve him from his « dangerous and precarious” title, without giving him the trouble of resorting to a court of law on his covenants for redress.
    In further support of the principle, «that a vendee will not receive the aid of a court of equity to withhold the purchase money or rescind the contract before “disturbance or eviction,” by proving a defect in the title of the vendor of a latent character, or superior outstanding title.” See Payne v. Cabell, 7 Munroe, 202; or Pirtle’s Dig. p. 504.
    Anderson, for appellant, in reply,
    insisted, that under the statute of this state the covenant of seisen is broken as soon as made, if the vendor has not a good title at the time of the conveyance ; and cited 7 John. Rep. 376 ; 4 do. 72; 14 do. 248.
   Mr. Justice Thotteb.

stated the case and delivered the opinion of the court.

This case falls exactly within the rule laid down by the Chancellor in the case of Bumpass v. Platner, 1 John. Ch. Rep. 213, 218; and in that of Abbott v. Allen, 2 J. Ch. R. 519. A purchaser of land who is in possession, cannot have relief in chancery against his contract to pay, on the mero ground of a defect o f title, without a previous eviction. Such an eviction is an indispensable part of the plaintiff’s claim. It would be dangerous in principle, to arrest and bar the recovery of the debt, while the purchaser is still in possesion under his deed and there has been no judgment against him at law. It is true, that in cases where fraud and imposition are charged and proven upon the vendor, equity will set aside the conveyance, and restrain the collection of the money before eviction had or threatened; for fraud vitiates every contract. Fraud is charged in this case; but it is expressly denied by the answer, which explains the condition of the title, and avers that so far from any concealment on the part of the vendor, he fully explained to the vendee at the time of the purchase the circumstances of the outstanding legal title. This is not only a positive, but a circumstantial denial, of a fraudulent suppression of the truth by the vendor. Anderson was thus fully apprised of the fact that Lincoln had only an equitable title at the time of the salo, and therefore has no ground to complain. It is a universal rule, that a purchaser buying with full notice of the defect in the title, will not for that defect be relieved in equity. 3 A. K. Marshall, 288; 13 Sug. & Rawle, 386; 1 Fonb. 288 — in notes. The answer insists that the vendor has a good title, and that he can and will extinguish the outstanding naked legal claim of Gartley, It is evident that Anderson has full power to enforce his equitable title. We do not think that there was any necessity to retain the injunction, with a view to try the question of title.

The decree of the Chancellor must be affirmed, with costs to the appellee.  