
    Catherine Benson, Admin’x. of Willis Benson, vs. Tilman D. Coleman.
    Action by the administrator of the vendor upon notes given for the purchase-money. No conveyance of the land had been executed, but the vendor had given bond to mate titles, and the defendant was in possession. Defendant claimed an abatement because there was -title paramount in a third person to part of the land. A survey; without notice to the vendor, from copy-deeds from the register’s office, the declarations of the vendor, and proof of claim made by a third person, hold to be prima fade evidence of paramount title, entitling the defendant to go to the jury upon the question of abatement.
    BEFORE GLOVER, J.., AT GREENVILLE, FALL TERM, 1854.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ This was an action of assumpsit on two promissory notes for four hundred dollars, dated the 4th January, 1851. The consideration was, in part, for a tract of land, sold by the intestate to the defendant for one thousand dollars. On the same day that the notes bear date, the intestate executed his bond to make titles, in which the land was described as the Benson tract, containing two hundred acres, more or less, and bounded, &c.
    
      “ The defence relied upon, was a want of title in the intestate to about thirty-seven acres of the land, which, it was alleged, the description in his bond embraced. No paper title was offered in evidence, nor had the defendant (who has been in possession since his purchase) been disseized : nor had there been any possession on the land adverse to the intestate’s title.
    “ The jury was instructed, that where there was no eviction •of a defendant, who remained in possession, under his purchase, • in receipt of the rents and profits, and showed no title paramount to the vendor’s, he cannot set up a defect of title. That there was evidence of a fraudulent purpose on the part of the intestate, after the sale, and that the defendant had made a strong case for relief; but that his possession had not been disturbed, nor was there any proof of an outstanding title which was paramount to that under which he entered and held, and that his remedy, if he has any, was not in this Court. A verdict was rendered for the plaintiff for the amount of the notes and interest.”
    The defendant appealed, and now moved this Court for a new trial on the grounds :
    1. Because his Honor, the presiding Judge, charged the jury that the confessions and admissions of Willis Benson, as to his having sold lands which did not belong to him, would not avail the defendant in his defence to the notes for the purchase money of the land as a discount or deduction for so much as the said lands were worth.
    2. Because his Honor the Judge charged the jury, that, although the said Willis Benson admitted, after bargaining the land to defendant, taking. his notes for the purchase money, and giving him his bond for titles, that thirteen acres of the said land belonged to his sister, Mrs. Green, and twenty-four acres of the same tract to his mother, Mrs. Benson, that these admissions could not avail the defendant in his defence.
    3. Because his Honor charged the jury that it was incumbent on defendant to produce the title deeds, showing the said thirteen acres, and the said twenty-four acres, did not belong to the said Willis Benson, but to other persons at the time the notes were given by defendant.
    4. Because his Honor charged the jury that the defendant’s appropriate remedy was in the Court of Equity, and that his defence could not avail him in this Court.
    
      5. Because his Plonor charged the jury, that the defendant had made out a very strong defence, indeed, and one which would avail him in equity, yet he refused to charge the jury that they might, from the testimony, presume fraud on the part of Willis Benson in selling lands to defendant which did not belong to him, and, therefore, make a deduction from the notes for the lands thus sold.
    6. Because his Honor the presiding Judge, by his charge to the jury, took the case out of their hands, except to find for the plaintiff the amount of the notes sued on, with interest, and left them no discretion to find any other verdict.
    7. Because the verdict of the jury was contrary to law and evidence in finding the full amount of the notes given for the purchase money of a tract of land, when the vendor had never made any titles to the defendant for the- land, and admitted, after the bargain, that he had no titles for 'thirty-seven acres of the tract sold, and it being in proof that the defendant never had possession of this portion of the tract.
    Perry, for the motion.
    Young, contra.
   The opinion of the Court was delivered by

WITHERS, J.

The defendant is vendee of Willis Benson, deceased, of a certain tract of land, and holds Benson’s bond to make titles, .upon payment of the purchase money; the vendee , has entered upon the premises, and resides there. He is sued upon notes for four hundred, part of one thousand dollars, the purchase money: six hundred have been paid in cash. The defendant insists upon an abatement on the ground of fraud generally, but when interpreted, he means, that there is paramount title to two parcels of land, to wit.: thirteen acres and twenty-four acres, which the intestate knew before the sale, and his declarations are adduced to shew that, and that he meditated . an imposition upon him (the defendant). A survey of the land, without notice to the vendor, and with only copy deeds from the Register’s office, had been made, and the surveyor said that Stringfellow Benson owned a parcel of land which he designated. It was in evidence, that after the sale, the intestate said he could get the whole tract back, and that he had no title to certain parcels, which he indicated — that a part of that referred to, belonged to his sister Frances — that he would get back his land from the defendant, and six hundred dollars besides. It appeared also that a party who went into possession of ten acres, though under intestate, had paid without his knowledge, however, rent to Frances Green, and her husband fyad forbidden the defendant to exercise acts of ownership over it.

Such is substantially the evidence of outstanding paramount title which the defendant would have addressed to the jury as warranting an abatement of the sum claimed in this action. It was, indeed, before the jury. But the presiding Judge instructed them that such evidence was unavailing, at least in the Law Court, for that where there was no eviction, and the purchaser remained in possession, under his purchase, in receipt of the rents and profits, and shewed no title paramount to the vendor’s, he cannot set up a defect of title, —that this defendant’s remedy, if he had any, was alone in Equity.

This instruction is understood here to import, that the defendant had offered no evidence fit for the consideration of the jury, that there existed a title to' any part of the land paramount to the vendor’s, in whose right the action is brought.

It is in this we think there was error. This defendant did not come for a recision — which this Court cannot effect, since it cannot enforce reconveyance, nor in other respects place the’parties statu quo. He claimed to have an abatement by way of discount, and alleged that his evidence, for that end, was, prima facie, sufficient, and so put the plaintiff under the necessity to rebut it. This, we must presume, was convenient for the plaintiff — since the muniments of the intestate’s title must have been, if they existed at all, in her possession, or within her power to produce. At all events, the plaintiff was bound to rebut such a deface, and we think there was evidence enough to put her to that necessity.

Allowing that Coleman might have a recision, or other relief, in Equity, it does not matter. If he was entitled at law to go to the jury, upon an issue of fact, and had offered no more than prima facie evidence, he is not estopped, even although he might have sought greater relief in another forum. He might have encountered there the doctrine, that he had clear and adequate remedy at law. That he, in fact, had, touching the matter of defence he urged, will be abundantly established by recurring to what is said upon the subject in Van Lew vs. Parr, 2 Rich. Eq. 321. We think the defendant had the right to take the sense of the jury upon his prima facie evidence, and, therefore, the motion for a new trial is ordered.

O’Neall, Wardlaw, Whitner, and MüNRO, JJ., concurred. ■

Motion granted.  