
    Jacob Walker v. Hugh Dunlop.
    
      [Misrepresentation. — Misldke.~\
    
    Fbom the bill, answer, and testimony, it appears that Thomas and Robert King procured a grant, No. 577, from the State of North Carolina for 1,000 acres of land, in what is now Roane County, * and that the defendant, claiming title to said tract by deed of conveyance from them, sold 333^ acres to Jacob Wassum, and agreed to have the tract divided into three shares by a surveyor; that Jacob Jones, a surveyor, did lay off and divide the land into three shares, and mark the lines according to information given him by the defendant respecting the corners and dines of the grant, but which in fact were not the corners and lines of the grant, as is now admitted by the defendant. Wassum, by contract, was to have his choice of either of the three parts. After this the defendant, for the sum of $500, which was fully paid, sold, and gave his bond dated 31st December, 1816, to convey in fee to the complainant 333^- acres of land, being the equal one third part of 1,000 acres granted to Thomas and Robert King, by grant No. 577, lying in the county of Roane, on a creek known by the name of Stewart’s Creek, agreeably to a survey made by Jacob Jones ; the complainant to have the second choice in the land, allowing a year to Wassum to make his choice. The defendant sold the remaining third part to Jacob Ault. At the time of the purchases made by Walker and Ault, they lived in Knox County, 60 miles from the land sold, and had never seen it. Some time after the date of the bond they went to view the land. Wassum in the mean time had made choice of the middle division, as laid off by Jones. The defendant, Dunlop, showed them the land, with the lines run by Jones dividing it into three equal portions, and also corners, which were represented by him to be corners of the original tract granted to t'he Kings. The complainant, Walker, made choice of the lower division, which included the springs, and the place where B. Cane settled. Ault of course was to have the upper part; and a deed in fee with general warranty was thereupon executed by the defendant to Walker, on the 1st day of May, 1807, for 333-g- acres of land, lying * and being in the county of Roane, on a creek known by the 
      
      name Stewart’s Greek, on the north side of Tennessee River, being one third part of 1,000 acres of land granted to Robert and Thos. King. Beginning on a white oak and black oak, the beginning corner of said 1,000 acre tracts then running with the line of said grant north, 400 poles, to a post oak, the north corner of said grant; thence west, 133a poles, to a black oak, Jacob Wassum’s corner; thence with Wassum’s line south, 400 poles, to a stake; thence east, 133a poles, to the beginning.
    
    Some time having elapsed after the date of this deed, Hailey settled on the upper part, M‘Pherson on the middle, and Blake on the lower part, as laid off by Jones. The defendant said that Blake was a mere occupant, and advised a suit to be commenced against him. At a subsequent time, Walker and Ault still urging for possession of the lands by them respectively purchased, they were informed by the defendant that the land included in the. grant for 1,000 acres to Robert and Thomas King, lay further up the creek, and not at the place surveyed by Jones. He told Walker that M‘Pherson and not Blake lived on the lower end of the tract, and that he must bring suit against M‘Pherson to recover possession. Walker refused, alleging that was not the land he had purchased, but he had paid his money for the place where Blake lived. Walker brought an action of ejectment against Blake, and gave notice to Dunlop, the defendant, to support the title. He refused to do so ; but stated to the counsel for the plaintiff in that suit that it was brought against the wrong person, for the land he had sold to Walker did not include the place where Blake lived but that where McPherson lived. The verdict and judgment was in favor of Blake.
    The bill charges that the complainant gave the defendant notice he would no longer pay taxes ; that * the defendant procured the land to be reported and sold for the taxes, and was purchased by him or some other for his use, although the taxes had been previously paid by the defendant. In the answer it is denied that he had any notice given him as charged; but admits that the land was reported at his instance, but at the sale was not purchased by him or any other for his benefit; that he returned for taxation and paid the taxes on a tract of 5,000 acres, which includes the land covered by the 1,000 acre tract. By the evidence it appears that the 1,000 acres included in the grant to R. and T. King, was. sold for non-payment of the taxes due .thereon for the year 1809, and John Kinserly, son-in-law of the defendant, became the purchaser.
    The bill prays that the deed executed by Dunlop to him may be set aside, and he be restored to all he has lost; or if the deed be good and sufficient to vest a title in complainant to the land intended to be conveyed, that the tax sale may be decreed void.
    These being the facts, at least the material ones, it is for the court to decide upon them, whether or not the conveyances shall be set aside, and the parties be placed in the situation they stood before the execution of them; and the court are of opinion that upon such facts the conveyance ought to be set aside.
    New. 852, 358, suggestio falsi was deemed sufficient cause for setting aside conveyances ; and reason pronounces that it ought to be so in every case where, if the fact falsely suggested had appeared to the vendee as it really existed, he would not have made out the deed of conveyance ; for if he be not reinstated to the place in which he stood before the execution, the suggestor of the fraud will have advantage thereupon, so far as the remedy falls short of actually placing the vendee in statu quo; and so far will'be allowed to profit by his own wrong, and to make his falsehood advantageous to himself, which * ought never to be tolerated. Reason requires that the whole advantage proposed to be acquired by the falsehood should be wrested from the wrong-doer. And further, if one hath by mistake or misapprehension been drawn into a contract, for property otherwise circumstanced than the party supposed it to be, he that gets the advantage through such mistake or misapprehension ought not to retain it; and if disposed to do so, ought not to be permitted by a court of equity. New. 432; 1 Ves. 126.
   Here the vendee was either imposed upon by the misrepresentation of the seller as to the locality of the 1,000 acres, when he, the seller, knew the lands described in the bounds and in the conveyance were not at the place shown, where the springs was, and where Blake lived, in which case he was guilty of fraud; or otherwise he, being under a mistake, represented this to be the place which he sold, and preferred to convey by the description contained in the bond and deed, and under the mistake which' he through misapprehension communicated also to the vendee, the deed executed, which, under the same mistake, the vendee received. Both believed the place described in the bond and deed to be that which the vendor pointed out; and upon that understanding, as upon a condition, the one made, and the other accepted the deed. As far as the mistake was discovered, both parties should have been willing to have rescinded all that was done. In this view of the case, the deed ought to be set aside.

As to the sale for taxes, it does not appear whether the sale and conveyance was a valid one or not; it would seem from the circumstance of the lands having been purchased by the son-in-law of the vendor, that the sale will not be good should the sheriff’s deed be valid. At all events, when that is urged as a reason why this court ought not to order a refunding of the purchase money, the vendor ought to show *that the .sale is valid, in order to evince that the land through the default of the vendee cannot now be vested in him by the decree to be pronounced in this canse; and as this case is incumbered, even that could not answer his purpose; for the defendant himself proved the land to be reported and the sale to be made, and shows that he paid for 5,000 acres which covered the 1,000 acres, of which the lands mentioned in the' deed to the complainant are part.

This shows that the sale for taxes of the lands in question was not a legal sale.

Decree that the complainant shall, by a deed to be approved by the clerk and master, and deposited in his office, in one month from this day release and transfer to the vendee all right and title to the lands described in said deed; which, however, shall be subject to a lien for the debt due by this decree to the complainant, until said debt shall be paid; and thereupon that the said vendee shall within one month thereafter pay to the complainant the principal and interest paid to him, the vendor, by the complainant, for said land ; such principal and interest to be ascertained by a report to be made by the clerk and master, and that the defendant pay all costs.

See, as to misrepresentation, Lewis v. McLemore, 10 Yer. 206; Donelson v. Weakley, 3 Yer. 178; Phillips v. Hollister, 2 Cold. 269; Merriwether v. Larmon, 3 Sneed, 448; Drew v. Clarke, Cooke, 374; Sparks v. White, 7 Hum. 89; Bell v. Steel, 2 Hum. 148; Trigg v. Read, 5 Hum. 529; Cunningham v. Edgefield and Ky. R. R., 2 Head, 23. As to mistake of fact, Maury v. Porter, 3 Hum. 347; Hickman v. Tait, Cooke, 460; White v. Flora, 1 Tenn. 426; Brents v. Brown, 3 Head, 560. See King’s Digest, 2242, 2562-64, 2585-89.  