
    WILLIAM S. MILLS & AL. vs. WATSON P. ABRAMS.
    When one purchases a tract of land with full knowledge that he is buying a defective title, and takes a covenant of general warranty from the vendor and also a written declaration from some of those, who are the legal owners of the land, that they assent to the sale, he has no right to have the contract rescinded or to prevent the vendor from collecting the purchase money.
    The cases of Markland vs. Crump, 1 Dev and Bat. 94, Thomson vs. McIntire, 4 Dev. and Bat. 360, Rutherford vs. Green, 2 Ired. Eq. 121, Sadler vs. Wilson, 5 Ired. Eq. 295, and Merrit vs. Hunt, 4 Ired. Eq. 406, cited and approved.
    Cause removed from the Court of Equity of Rutherford County at the Fall Term 1846.
    Humphrey Parish was seized in fee of a tract of land situate on Green river in Rutherford County and containing two hundred acres, and died intestate in November 1840, leaving as his heirs at law a daughter, Lydia Abrams, a widow ; another daughter, Elizabeth, the wife of Andrew Miller; three grand-children named, Humphrey, Walker, and Mary Parish, who were, the children of Nathaniel Parish, a deceased son of the intestate Humphrey; and four other grandchildren named, Thomas, Robert, Anne and Martha Steele, who were the children of Mary Steele, a deceased daughter of the said intestate. Walker and Mary Parish were infants, and a guardian was appointed for them, and at the filing of the bill the said Mary had intermarried with one Dickey, but was still under age. The four children of Mary Steele were also infants at the death of their grand-father, and the defendant Abrams was their guardian and Martha was still under age at the filing oí the bill. The defendant administered on the personal estate of the intestate, and a verbal agreement was made between such of the heirs as were of full age and the guardians of the others, that, when the defendant sold the personalty, he should also sell the land. Accordingly on the 13th day of December 1841, the defendant exposed the land for sale on a credit of one year, and it was bid off for John Mills, the testator of the plaintiff, William S. Mills, at the price of $2,312, and two days afterwards he gave his bond therefor with two olher plaintiffs as his sureties, payable to the defendant as administrator. At the same time the said John Mills took from the defendant a deed of bargain and sale for the land to himself in fee, in which the defendant is called administrator of Humphrey Parish deceased, and in which is contained a general warranty from the defendant personally. Immediately thereafter John Mills entered into possession of the premises.
    The bill was filed against Abrams only, November 1st 1843, and it states, besides the facts above set forth, that John Mills died in 1842 and that he made a will and appointed the plaintiff, William S. Mills, his executor, and “that amongst other devises in said will is one by which his executor is directed to sell the tract ofland aforesaid : ■and that, upon enquiry, he, the executor, was informed that the said deed from the defendant conveyed to his testator no title for the land, and he therefore declined making any sale’’. The bill then states, that on ascertaining that fact, the plaintiff William S. requested the defendant to rescind the contract, and give him up the bond for the purchase money, but that the defendant refused to do so, and instituted suit on the bond. The prayer is, that the contract be rescinded and declared void, and for an injunction against the suit at law.
    The answer states, that at the time of the sale if. was understood between the heirs and their guardians and .also by the bidders and others present, that the defendant could not make a valid conveyance of the land, and that the purchasers should take the deeds of those of the heirs who were of full age, and should await the arrival at age of the others for conveyances respectively. It further states, that John Mills was not present at the sale, but that one of his sons bid for him, and was informed of the-views and understanding above mentioned: That a day or two after the sale, John Mills and the son, who had bid for him, came to the premises to give a bond for the purchase money ; and, after having done so, the said John pequired the defendant to make him a deed with general warranty: and that the defendant refused, for the reason, that he could not convey the title, and had no interest in the subject, but as guardian of some of the infant heirs: and that, upon Mills’still insisting on having the conveyance, the defendant told him that the contract might be rescinded, as he would not undertake to convey the land, to which he had not the title, and in which he fiad no interest: but that he, Mills, refused to rescind the bargain, and said that he had bought the land and wanted it, and that he would be satisfied with the title the defendant could make him and would risk that title. The answer further states, that the price given by Mills was very high, and it was unquestionably the interest of the heirs at law never to disturb Mills in his possession, but to accept respectively their shares of the purchase money; and that, after the defendant’s refusal to convey, both Mills and the heirs, who were of age. and the guardian of the other infant children, represented the matter in that light to the defendant, and urged him to make the conveyance as demanded- — saying that he would be in no danger and that at all events he might make himself safe by holding the purchase money of each heir, until he should convey upon coming of age. The answer further states, that the defendant finally consented to make the deed, upon an agreement of the adult heirs and the guardian of the others with him and Mills, to execute to Mills a written declaration, that ihey had assented to the sale made by the defendant and then approved and confirmed it; and that thereupon such written assent or declaration was executed and delivered to Mills, and the defendant made the deed with general warranty, which Mills accepted, as a satisfactory title and at his risk, with a full knowledge of the state of the title and of all the facts of the case. The answer further states, that all the heirs, who were then and have since become of age, have refrained from disturbing the purchaser or those claiming under him, and are willing and ready, as the defendant believes, to make conveyances to the heirs or devisees of Mills or to any person, who may be entitled under him; and that he has no doubt the two, who were still infants, would do so when they came to full age.
    
      Alexander and Edney, for the plaintiff.
    
      Bynum, for the defendant.
   Ruffin, C. J.

On the part of the plaintiff there are no proofs, excepting only that he filed as an exhibit the deed made by the defendant. Several depositions have been taken by the defendant, which sustain the answer throughout, as to the value of the land, the circumstances of the sale, the knowledge of the purchaser of the state of the title, his refusal to rescind the contract on account' of the title though requested by the defendant, and his acceptance of the deed of the defendant as a sufficient ti-tie at his risk, and also of the written declaration of an assetit to the sale by the heirs and their guardians.

If there were no other objection to the plaintiff’s case, his omission to put in the will of his testator, as evidence, would be fatal to it. Although the title might be defective, yet, as the purchaser entered under his deed, he wasseised so far, that the land descended from him, taking with it- the general warranty, and the heir would have the right to the action on the warranty, and he may choose to keep it. Markland v. Crump, 1 Dev. and Bat. 94— Thrower v. McIntire, 4 Dev. and Bat. 360. Therefore the executor, as such, would have no right to have the purchase rescinded or refuse to pay the price out of the personal estate. Rutherford v. Green, 2 Ired. Eq. 121. Hence, the will was a necessary part of the plaintiff’s title, in order to show that the title did not go to him, but vested,in him as devisee: for no., doubt, the land is the subject of devise as well as descent, and the covenant for quiet enjoyment wquld go with it, as it had not been broken in the time of the testator. Whether the will, if in. evidence, would give the executor by himself the right to. fill the bill, may well be questioned : for, as stated in the bill, the land is not devised to the executor, but he is only “directed to sell it” — thus -creating a.-power only in the executor, and . leaving the land to descend. - But that point need not to be looked into, since the will is not before us, and therefore we cannot see, that the plaintiff has either an estate or a power.

But', if that point were out of the case, the merits are clearly against the plaintiff. No doubt the purchaser might, upon the strength of their assent to the sale given to him in writing, claim from the adult heirs a conveyance of their respective shares of the land : and'it is possible, if they were made parties, that the Court would stop in transitu their parts of the purchase money, until they should respectively comply with the decree against them to convey. But, even then, the purchaser could not claim to have the whole contract abrogated, because one ©r two would not convey, but would only have the right of keeping back the proportion of the purchase money belonging to those, who could, but would not, make deeds, so as to complete the vendee’s title as far as they could. But the plaintiff has not made any of the heirs parties, and he cannot therefore claim relief upon the ground that they will not comply with the equitable terms the Court might impose on them: but he founds his prayer for relief solely upon the ground, that the title, which the defendant sold and conveyed to him, is not a good one, but is defective in the manner pointed odt in the bill. That might be a very sufficient ground, on which the Court should allow a purchaser to retain the purchase money, until the title should be made good, and, if that were not done in a reasonable time, rescind the contract upon proper terms, provided any fraud had been practised by the vendor in concealing the defect of title, or the parties had been mistaken as to the title. But when the actual state of the title is fully known by all parties, and the purchaser agrees to pay the purchase money at a particular day, which will come before the defect in the title can be legally cured, and by way of securing himself from loss from such defect, he agrees further to take covenants from the vendor or some other for the title or against eviction or disturbance, there is no possible ground upon which a Court of Equity can interfere. unless it were, that the Court will not let a man, with his eyes open, bind himself by any bargain, but such an one as a wise man would deem advantageous or prudent. The vendee here knew every defect, which the plaintiff now suggests in the title, and, with that knowledge, he persisted in completing the purchase, choosing his own remedy for any injury from the defect in the title, in the form of a covenant from the defendant of general warranty and quiet possession, and on that he must rely. If this bargain had rested in articles, the purchaser, under those circumstances, would be obliged to pay the purchase money, as he contracted, and could not retain any part of it. Sugd. Vend, C. 9. S. 6. Sadler v. Wilson, 5 Ired. Eq, 295. Much more must that be so, when with a knowledge, of the title, he takes a conveyance from one person with covenants for title, and a paper from others, who were legal owners of parts of the land, assenting to the sale.— For, it is obvious, that the purchaser gets precisely what he bargained for, that is, a defective title, with covenants against loss from those defects : and in such a case we held in Merritt v. Hunt, 4 Ired. Eq. 406, that the plaintiff could not repudiate the contract, but was bound to pay the purchase money.

Per Curiam.

Bill dismissed with costs.  