
    MORETON v. REESE.
    Contract of purchase of land — rights of a purchaser in possession — fraud in the original purchase.
    One in possession of land under a contract of purchase with time of payment, may contract for clearing the land, and sell the wood, rails, &c., as he would his crop, and it docs hot lie in the mouth of a purchaser of either, to avoid payment by setting up fraud in the purchase of the land from the vendor. 382] *If the purchaser is wasting the estate, or so proceeding as to lessen the security of the vendor, he must rescind the contract, or enjoin him in chancery; he cannot interfere with the purchaser’s contracts with others.
    Error to the Court of Common Pleas. The case below was assumpsit. On the trial, the following facts appeared. Moreton representing himself of ability to pay, induced one Crandall to sell him a piece of woodland, upon his contract to keep down the taxes, and to pay a stipulated sum at a future day. Crandall went into possession of the land, sold the timber upon it to Reese, and took his note, which was the foundation of the suit. After he began chopping the wood, Crandall, being informed iha.t Moreton was worthless, gave notice to Reese to desist from chopping, but he, after notice,- hauled off a part of the wood.
    The court below charged the jury—
    1. That if Moreton’s purchase was induced by false representations, it was void, provided the representations went to the whole consideration.
    2. If the contract was void, Moreton acquired no right in the land.
    3. And if the note of the defendant was given for the timber on land held under such contract, and taken by Moreton without disclosing the true state of the contract, the taking it was a fraud on Reese, which would vitiate the note. There was judgment for the defendant.
    For error in this charge it is sought to reverse the judgment.
   WRIGHT, J.

Moreton claimed the land under contract with Crandall, which is, in form, valid. While in possession of the land, «o claiming, he contracted with the defendant for the timber upon it. It is the universal custom for purchasers to clear the land, and he is fortunate that can reduce the expense by a sale of the wood, instead of being compelled to pay for the entire work, and to burn the wood on the land in order to clear it out of the way. If the vendee proceeds in an unusual way, or is injuring the freehold, the vendor must restrain him in equity or rescind the contract. But while the vendee is in possession under a contract he may contract for wood, or his crops, and it does not lie in the mouth of one purchasing of* him wood, rails, or the crop, to object against paying, that the purchaser of the land defrauded his vendor. Such appears to us the ease before us, in its strongest aspect for the defendant. The court below erred in ruling differently.

The judgment is reversed, with costs.  