
    J. D. Gilbert, v. J. L. Ross.
    Issue of title frequently occurs in actions of assumpsit on notes given for the purchase of land, where the defendant relies on a failure of consideration, in that, part of the land conveyed is covered hy a better title than the plaintiffs; and such issue is for the jury.
    
      Indebitatus assumpsit lies to recover a deposit paid on a contract which proves to be fraudulent, although the contract be under seal, provided the plaintiff has received no benefit under it, and by the recovery the parties will be placed in statu quo.
    
    Tried before Mr. Justice Butler, at Charleston, May Term, 1846.
    This was an action to recover from the defendant one hundred dollars, which had been paid to him in consideration that defendant would make to the plaintiff good and legal titles to a tract of land lying in Colleton District. See agreement dated 18th September, 18o8. Some time after the money was paid, the plaintiff became satisfied that the defendant, Ross, had no title or claim to the land, but that it belonged to Col. F. H. Elmore, from whom betook atitle. From the evidence, it will appcarthat in 1826 the land hadbeensold under atax execution,and thatRoss bought seven years interest in it. This lease had expired in 1833, and from that time it did not appear that the defendant had any interest at all in the land—so that when he sold, he not only had no title, but must have known that he had no claim or right. Under these circumstances, it appeared to the presiding Judge, that Ross had received one hundred dollars, without any consideration whatever, upon a representation that he had some interest in a tract of land to which he could at the time have had no shadow of claim. Notwithstanding the agreement in writing, that the defendant was to make good titles, his Honor held that the plaintiff could maintain his special action in the nature of account. The verdict was rendered under his instructions, and was entirely satisfactory to his notions of the law and justice of the case.
    The defendant appealed and moved for a non-suit, and if that should be refused, for a new trial, on the grounds,
    That the evidence of the contract from which the action arose, was a deed under seal, a covenant, and assumpsit would not lie.
    That Gilbert, having gone into possession under a written title, could not dispute the title under which ire entered; and if sued, should have vouched the defendant to warranty.
    That the purchase of an outstanding title in a third person could not be given in evidence under the pleadings.
    That Ross, never having gone out after his purchase of a seven years lease, was tenant at will of the real owner, and the right of possession was vendible, and the sellor could only be liable on his warranty, which could not be tested in assump-sit, it being a deed under sale:
    Hunt, for the motion.
    Said, you cannot bring assumpsit on a sealed deed.
    Petigru, contra.
    
    The law docs not require suit on the deed. The plaintiff may treat it as a nullity, and cue for the money paid without consideration. Fraud vitiates all contracts; Gray v.-, 1 Bay, 278; State v. Gaillard, 2 Bay, 11. Defendant, in a suit on bond for property fraudulently conveyed, or without consideration, may treat it as a nullity. It is not necessary to go into a Court of Equity to obtain relief, in a case of fraud, if you can prove it in a Court of law. If a deed is of no effect in the view of a Court and jury, the party is entitled to an action on the implied warranty of soundness, without suing on the deed. He seeks a remedy over and above the deed; Wells v. Spears, 1 M’C., 4.21; and Banks v. Hues, 1 M’C., 537. An action of assumpsit lies to recover back the whole, or part of the price, and when one has been deceived, he may rescind the contract and bring this action for the money paid; Lacost v. Focneli, 1 Miln., 407. The party entitled may sue on the deed, if he has not rescinded the contract, or bring assumpsit for the price, if he has; 2 M’Cord, 07, and 2 M’Cord, 432. Where a contract has been rescinded, the party may sue to recover the price; 1 Miln.,393; 2 Treadway, 750. In this respect, there is no difference between a contract by parol and a specialty; Comyn on Con., 1011. The injured party can end a contract, and indebitatus assumpsit is the remedy after its rescisión; Dutch v. Warren, 2 Comyn on Con., 80; also, Holmes v. Hall, and Giles v. Edwards, from the same author. It is in the election of the party to disaffirm the contract, and bring indebi-tatus assumpsit for the money he has paid by the fraud of the other party. Indebitatus assumpsit is a bill in equity, in principle, and equity takes cognizance of frauds. An instrument of writing with all formalities, is no deed, without consideration. Indebitutas assumpsit cannot be brought on a deed; but here it is not on the deed, but on the fraud, for the money paid.
   Frost J.

delivered the opinion of the Court.

The report refers to the depositions for a more detailed statement of the evidence, which not having been produced by either party to the Court, it is presumed cannot vary the case. Ross having purchased at sheriff’s sale a lease for seven years of a tract of land, five years after the lease had expired, covenanted to make titles for the same to the plaintiff. In the covenant, the land is described as that purchased at sheriff’s sale; and there is no proof that the defendant had any other title, or that he was in possession of the land when he contracted to sell it. In 1841 the plaintiff was in possession, and proved that he had bought the land from Elmore, but whether before or after that time does not appear. The declaration contains a special and indebitatus assumpsit count for money had and received. The defendant objects to the admission of parol evidence, that the plaintiff purchased the land from Elmore, because it made an issue of title in an action of assumpsit. Such an issue frequently occurs in actions on notes given for the purchase of land, when the defendant relies on a failure of consideration, in that, part of the land conveyed is covered by a better title than the plaintiff’s.

Another objection is, that the plaintiff having entered under the defendant, is estopped from denying his title. The objection would be good, if there was any proof that the plaintiff did so enter. The covenant to make titles gave the plaintiff no right of entry; so that his possession cannot be derived from the defendant by force of the deed. It does not appear that the defendant, when he executed the covenant, had any possession which was or could have been transferred to the plaintiff; nor in fact that the plaintiff did enter until after he had purchased from Elmore. If the defendant had neither title which might give a constructive possession, nor an actual possession, it cannot be said that the plaintiff entered under him. Whether the plaintiff had any title, was the only fact involved in the issue. The verdict finds he had no title.

The remaining objection is, that the plaintiff should have sued on the covenant. This would be necessary, if he relied on the contract and sought damages for the breach of it. But, in this action, the plaintiff waives the contract, and all claim for damages on account of its non-performance, and sues only to recover back the money paid in consideration of it, on the ground that the defendant’s claim of title was a false pretence, and the covenant an imposition. Indebitatus assumpsit is the most comprehensive form of action at law, being co-extensive with fraud and injustice, by whatever means they may be effected. Frauds avoid all contracts; and it is at the option of the injured party, either to affirm the agreement, by bringing an action for the non-performance, or to disaffirm it, ab initio, by reason of the fraud, and bring an action for money had and received to his use; Moses v. M’Farlane, 2 Bur., 1011. Contracts respecting land, and under seal, form no exception to the rule. In Roper v. Coombes, 6 Barn. & C., 534, assumpsit was brought to recover the deposit, paid under an agreement for the sale of a lease, on the ground that the defendant had no power to- grant the lease contracted for. The deposit on a contract under seal for the sale of land, may on the same ground be recovered by this action; Greville v. Dabosta; Peake’s Ad. Cases, 113. When the contract has been in part performed, and the plaintiff has received a benefit, this action will not lie; for if the contract is to be rescinded, it must be rescinded entirely, so that the parties may be placed in statu quo. The evidence does not show that the plaintiff derived any benefit from the covenant, or that the defendant would sustain any injury by the rescisión. The circuit Judge reports that the defendant showed no shadow of claim to the land. If the plaintiffis refunded, what he paid the parties will be in statu quo.

The motion is refused.

O’Neall J., Evans J., and Wardlaw J., concurred.  