
    
      Bodley, &c. vs. McChord.
    
    October 11.
    Error to the Fleming Circuit; Wa. P. Roper, Judge.
    
      Special warranty deeds. Covenant. Title. Commonwealth's paper. Rescisión. Vendor and vendee. Possession. Restitution.
    
    Chancery, Case 138.
   Chief Justice Robertson,

delivered the opinion of the court.

In 1835, David McChord settled upon a tract of land, which was claimed by Thomas Bodley. It does not appear that McChord had any pretence of claim to the land, or had ever asserted any. Shortly after his settlement, Bodley agreed to sell him one hundred acres, including his improvement, and to make him a special warranty deed therefor, whenever he (McChord) should pay him the stipulated price, $¡100.

McChord continued to reside on the land without title, and without having paid or ofFered to pay the $¡100 or any portion thereof; and in 182-1 sold his right tohis son, William K. McChord, the defendant. Thereupon Bodley, on the application of the defendant, covenanted to convey to him the one hundred acres of land, by deed of special warranty, for $150 in commonwealth’s paper, on the payment of $75, one moiety for which indulgence was given, the other moiety having been paid at the time of the contract»

Pogue, as assignee of the note for the $75, having, after it became due, obtained a judgment on it against McChord, the latter filed a bill in chancery, injoining the judgment, and praying fora rescisión of the contract, because, as the bill alleged; Bodley was insolvent and had no title to the land.. Bodley insisted that he had a legal title to the land, but did not, as required by the bill, exhibit his muniments of title.

On the hearing, the circuit court perpetuated the injunction, and rescinded the- contract, and decreed, that Bodley should refund to McChord $75 in-notes, of the bank of the commonwealth, with six per cent interest thereon, from the 25th of August, 1825; the time when it was paid.

And moreover decreed, that “in as much as the complainant did not receive from said Bodley, the possession of said tract of land, the court cannot decree him to give or surrender the possession thereof to said Bod* ley, but he is left to seek his remedy at law, if any, to recover the same.”

Covenant to ' convey land by deed of special warranty^ implies that covenantor.has a legal title regularly derived from the commonwealth; and if covenantor be unable to con,\ ey such a title, biscov-enant is hroksii,

Such covenant should be good against the state.

The decree of rescisión is approved. Á covenant to conyey title by deed of special warranty, implies, that the covenantor has a perfect legal title, regularly derived from the commonwealth; and if he shall be unable to convey such title, his covenant wiil be broken.

The only difference between a covenant of speciai warranty, and one of general warranty is, that the former will not be broken, if the covenantor had the evidence of a legal title, as between himself and the commonwealth, when the conveyance was made, and permitted the vendee to enjoy thé benefit of it,, without disturbance by himself or any other person claiming under him, and the latter covenant will be broken, if the covenantee be evicted by any title adverse and superior to that of the covenantor, although he had the. evidence of a legal title peifect in itself. There may be many patents to the same land, although but one 0/ them can hold it.

When a party covenants to convey, by deed of special warranty, he thereby under* akes to convey a legal title, good against the state, but refuses to guaranty the superiority of that above any other adversary title. He cannot convey a legal title, unless he has one in himself.

The covenantee stipulates for, and expects a legal title. He should not be required to accept a deed, which would vest in him no r.ghl. All he could exact, would be a conveyance of a legal title, regularly derived from the commonwealth. But this much he pi ay demand as his undeniable right, and there is fail ure of consideration, unless the covenantor can convey such a title. A junior patentee owns the land, until a senior patent, for the same land, be shown.

As Rod.Iey failed to snow that he had such a title, it was the duty of the court to decree a rescisión of the contract.

But the circuit court erred first in decreeing a restitution of commonwealth’s paper in kind, and the payment pfinterest upon it; and second, in withholding an order for the restitution of the possession of the land to Bodley.

Where purchase money for land was paid in commonwealth’s paper, error, on rescisión of the contract of sale, to decree restitution of the common-w’l h’s paper, in kind'. In mch case, the law implies a promise to refund the value only of the commonwealth’s paper. if vendee obtained possession of the . land from vendor, he cannot, on a rescisión of the contract, re ist vendor’s oFthe possession,

1st. McChord is entitled <.nly to the value of what he had paid. To this extent, the law will imply a promise by Bodley. But we know of no law or principle of equity, which will, without express contract, authorize a decree to any other or greater extent. The val le of the 875 on the 25th of Angust, 1825, is the ne phn ultra of McChord’s equity. He is not entitled to interest on even this value, as he had the use of the land, which must be considered as more than equivalent to the interest on one moiety of the price:

2d. It is true, that it does not appear from direct proof, that either the defendant or his father obtained the possession from Bodley. But it is equally true, that there is no evidence or even suggestion, that either of them entered adversely to him, or undercolor of title.

If D. McChord had obtained the possession from Bodley . in 1805, or had entered under Bodley, the decree seems to concede, as is certainly true, that Bodley would be entitled to restitution.

But there may also he cases in which, on the rescisión of contract for land, the occupant should be compelled to surrender the possession to the covenantor, al-thongh it was not originally acquired from him.

‘'•If one enter on land without any title or claim, or color of title, the law adjudges the possession to be in subservience to the legal owner.” Jackson vs. Thomas, XVI Johnson, 301. The same doctrine is maintained in the following cases: Brandt vs. Ogden, I Johnson, 157; Jackson vs. Sharp, IX Ibid, 163; Jackson vs. Ayres, XIV Ibid, 225; Jackson vs. Croy XII Ibid, 427. This is the inference of Jaw in the absence of proof of a hostile entry.

A person entering without color or claim of title may hold adversely to the world. But an adversary possession will not be presumed. The doctrine of adverse possession is to be taken strictly, and must be made out by proof. Every presumption is in favor of a possession in subordination to the title of the true . owner.”

It may be said, however, that Bodley has not proved that he held the legal title. He has not done so directly. But we consider the defendant estopped to withhold the possession by requiring positive evidence of his title.

As the defendant has failed to show, that either his father or himself ever had any claim to the land, except what they derived from Bodle/, by making a contract with him, for a conveyance of the title, they acknowledged that he had title, and thereby, there being no fact to the contrary, admitted that they held under him; and consequently, “must be considered in the same- light as if (they) had entered under the agreement.” See XIV Johnson, 225; XII Ibid, 427; 11 Johnson’s Cases 353. When there is no evidence of an adversary possession or of title, even an application, by the person in possession to another claiming title, to purchase it from him, is presumptive evidence, that the applicant holds under the claimant; 'see the cases supra.

A hostile entry may be changed into an amicable-possession ; and a person who enters adversely to the right or another, may afterwards hold under the title of that other, and by such tenure, may be estopped- to deny the title under which he so held. He will alwavs be estopped, when having entered without color or claim of title., he afterwards makes an agreement for the pur--chase of the title from the claimant or holder of it.

An application of the foregoing principles to the facts of this case will show, that the defendant must be-considered as holding under Bodley, and therefore, cannot object to a restitution of the possession to him, merely because there is no positive proof, that JD. Mc-Chord entered under Bodlcy’s tille; nor becauseBodley has failed to exhibit the evidences of his title.

The defendant, after having enjoyed, in connexion with his father, the possession and use of the land for twenty-five years, -without the assertion or the shadow of title, independently of Bodley, should not be allowed to rescind his contract with .Bodley, and hold the land until he can be evicted in an action of ejectment. Bodley should not, under such circumstances, be compelled to prove positively, that he holds a perfect legal title, and that the defendant has held under him, before he can obtain the possession. Such a requisition would be unjust and unequal in its operation. It would be unreasonably advantageous to the defendant.

petition for a re-hearing,

Hoggin, for plaintiffs; Mills and Brown, for ’"defendants.

We are therefore, of opinion, that restitution should be made to Bodley by the chancellor.

Bodley should pay for all ameliorations. McChord should account for waste, if any has been committed. Bodley should take the land without rents, and Mc-Chord should take the value of his commonwealth’s paper without interest.

Decree reversed and cause remanded, for a decree conformable to the principles of this opinion.

The counsel for McChord, fyc. filed the following petition for a re-hearing.

The counsel for McChord, reluctantly, but earnestly solicit of the court, a re-hearing in this cause, and do respectfully insist, that there is error in the decree, rendered in two particulars.

1st. In refusing to restore to McChord the notes on the bank of the commonwealth, but scaling them to a specie standard.

2d. In decreeing restoration, or rather, that Mc-Chord should give up possession to a man, who never had either possession or title.

As to the first point, it is readily admitted, that courts, for debtor damages, cannot generally give judgment, or decrees for any thing but money; but in the case of a rescisión of contract, it is the duty of every court in placing the parties in statu quo, to restore to each specifically what he had parted with, whether it be money, houses, bank paper, worth less than par or other commodities. The old decree was therefore right. On this point there is expresss authority; see Talbot vs. Dailey, III Bibb, 443; Keith vs. Paton, I Marshall, 23. The court below was therefore, right in decreeing the restoration of bank paper in specie.

On the second point, it is the very first case that the court decreed the land to be given up, unless the pos session was had from the vendor; but here the vendor never had possession, and this court expressly admits he had no title!

How were the pa'-fies before their deaths? McChord was in possession, and no title. Eodley was out of possession and had no title, but stated that he had, and McChord believed him, and bought not the possessson, but a title, as he supposed. Finding afterwards, that Bodley had no title, he withheld payment, injoinéd the purchase money, and prayed a discoveryof title before he paid, or a rescisión. Bodley still declares he has title, arid produces none. The court below set aside the contract for title, and left possession where it was, before the'contract. Was not this complete rescisión, and the parties placed in statu quo completely 'l 'yet,, this court goes further and implies a contract on part of McChord, that he should 'give up possession to, if hé could notget till e.from his vendor? The court rescind the contract, because Bodley has no title, and yet gives him, for the first tin•>, and does not restore the possession because he has title! The court says, that the doctrine óf adverse possession is to be talcen strictly, and cannot be presumed, but must be taken to be held amicably with the right of the true owner. Admit this, and who or where is the true o'wner? Not Bodley, as the court admits. If Bodley has no title, and was to oust Mc-Chord, the latter could recover back the possession on possession only without title, and yet the court has sanctified such an ouster without showing title, and therefore, has prohibited McChord from recovering his possession. Twenty years possession may give the title, so that McChord could hold it forever, and yet the . court has transferred this twenty years title to Bodley, who held no previous possession.

The court seems to anticipate this reasoning, and answers it by saying, that McChord ought not to withhold the possession, by requiring positive evidence of title-Why ought he not to require it? It is the very thing in issue, and that which he wanted. But the court seems to rest the giving up the possession; not so much on title in Bodley, as in want of the defendants showing, that neither his father or himself ever had any claim to the land, except what they derived from Bodley, by making a contract with him, for a conveyance. What Sitie did they derive from him by this contract? Certainly none, and because they did not, the contract is rescinded. If, as the court supposes, by making tract w'th Bodley, McChord acknowledged that Bod-ley had title, how then is McChord permitted to dispute that fact and get clear of the contract? This acknowledgment of title by McChord, the court admits, is not binding enough to enforce the contract, and yet the court makes it binding enough, to compel Me-Chord to give up the very enjoyment or use of the land!!!

With due submission, the counsel cannot see the propriety of making want of title in Bodley good for one purpose, and not for every purpose of the suit. They cannot suppose that the want of title should keep Bodley out of the money, and yet he should have ■ enough to give him the land, which he never had the .possession of.

Who was McChord before the contract with Bod-ley? We will, for the sake of argument, admit him to be a mere squatter. Who then was Bodley? A preiender to title, but without any, who passing by the defenceless tenement, claimed it, and seduced the unprotected occupant, into a purchase of a pretended title. This deluded occupant pays part of the money? but afterwards becomes alarmed, for fear he was deceived, and applies the screws of the chancellor, to his vendor, to compel the production of title, and insists, if he can get none, that matters ought to be placed back as they were. No title appears. The court says this is true; he ought not to be compelled to fulfil the contract; but still a worse fate awaits him. He must give up his home, to this stranger without title. Deceiving the squatters of the country has been within our judicial hislory, a business for speculators, who pretended to sell title, and is it true, that such speculators shall gain possessions, which they never had; which they never could get, by deluding the settlers into con* t act? For any thing this coart can see the title of this land is yet in the commonwealth, and of course, McChord is entitled to a pre-emption, as the first set-tier. This right, however, the court takes from him. From any thing which appears, McChord has found out the true owner, and has (as the fact is out of the record) purchased and procured the real title, and paid bis money. What now is the result? He must lose his home and lose his purchase, and be driven to bring his action at law, and instead of Bodley bringing his, and try to get back if he can, and what is still worse, Bodley will' hold the possession under an irreversible decree of this court, which sanctifies his possession, and bars his ejectment.

Response to the petition.

The counsel will refrain from reasoning further on this case. At this moment, we have not time to cite authorities on the last point, but will try and furnish them hereafter.' Indeed they have considered the point at rest, in this court, and do recollect, that the court has invariably refused (sub silentio, not supposing the matter contestible) to cause the vendee to give up possession on rescisión, even when the vendor proved that he had a title, unless the vendor took 'possession from him. It is known that possession is important, and if the vendor gives possession when he sells, then he gets it back on rescisión. If he does not, he gets the possession in the best way he can; and this, it is avowed, is, and has been, the settled law of this court.

On the first of July, 1831, the Chief Justice delivered the following opinion of the court, in response to the petition for a rehearing.

This case has been re-argued, and re-considered; and the opinion will remain unaltered.

So much of the petition as insists that the chancellor had a right to decree a specific restitution of the commonwealth paper will not be noticed, except by the passing remark that, though the restoration of the thing when practicable, may be proper, a restitution of kind would be unusual at least.

We may admit that McChord is not estopped to deny Bodley’s title, and may not be compelled to restore to him the possession, unless he “entered” under that title or obtained, the possession from Bodley.

But .we maintain, that McChord did enter under Bodley, and did obtain the possession from him. This is the deduction of fact, as well as of law.

1st. As to the fact, Bodley had a claim to a large ■tract of land; and there is no intimation in this record that any o' her person had any other or adverse claim to the same land. A brother of old David McChord bought a part of the tract from Bodley, and settled on it, under Bodley’s title, in 1804. In L805, David Mc-Chord, without any claim of title, settled near his brother; and shortly afterwards made a contract with Bodley for the title. lie never asserted any other claim than that derived from Bodley.

One who enters on land without claiming any title or manifesting a hostile intention will be ‘deemed’ to have entered under, and in subordination to the title of the true owner.

Vendee of land, who entered under an executory-contract of purchase, will not be permitted to deny title of vendor or to withhold restitution, although the contract has been rescinded by the chancellor.

Under whom then did he enter? His entry was not hostile; his possession was not adverse. He must be presumed to have known that Bodley claimed the land, and that his brother’s home was protected by Bodley’s title. The inference is fair, and almost conclusive, that he entered under Bodley’s title, with the intention of purchasing from him, as he did, or perhaps, in consequence of a prior agreement for the purchase. It is true, that some of the witnesses swear that they do not know that 1). McChord entered under Bodley, but the facts uncontradicted, show, (we think,) that he did so enter; see Jackson vs. Cuerden, II Johnson’s cases, 353.

2d. As to the law. The cases cited in the opinion ’and many others (sparsim) establish, incontrovertibly, the doctrine, that a person who enters on land without claiming any title or manifesting a hostile intention, must be “ia-m rP to have entered under, and in subordination to the title of “the true owner.” This has not been controverted, and will not be, as we suppose.

But it may be said, that Bodley cannot be benelitted by this doctrine of the law, unless he had proved that he was the true owner.

To this, we reply, that he has proved that he was the true owner. If McChord had never made a contract with him, Bodley could not have evicted him-without positive proof of title. But McChord is estop-ped by his contract to deny Bodley’s title.' It is true, that the contract has been rescinded by the decree. But still the fact appears that there was a contract and that McChord held the land under and in consequence of it. The estoppel cannot be affected by the rescisión.

A person, who entered under an executory contrae^ for purchase, will not be permitted to deny the title of the vendor, or to withhold restitution, merely because the chancellor has rescinded the contract; the chancellor will not rescind without decreeing restitution; and;, although a. rescisión be decreed because the vendor fa¡]e(j (;0 ghow a perfect tille, the parties m ist be placed in slain quo; and as to the question of restitution rj glit of the-vendor cannot be controverted by a ven-^ee who.sought the rescisión; If, in conssqmnce of his contract, McChord must be consikrzd as having entered under Bodley, then, of course, the rescisión of the-con-^rac(; cari have no more effect on the right to restitution, than it would have, if McChord had entered after the date of the contract. If McChord had entered after contract? fact that he made such a contract, would be admissible (even though the contract had been rescinded,) to prove that he entered under Bodley. For the same reason, if the facts and contract in this case can have the effect of showing, by construction of law or otherwise, that McChord entered, or must ube deemed” to have entered under Bodiey’s title, the contract, though no.w rescinded, is as admissible and as effectual to show the entry and the character of the possession as it would be if' the entry had been made after its date. If, in the one case, (because it is now nullified by decree,) it would be insufficient to prove bow McChord entered and held, it would be equally ineffectual in the other; and vice versa. The petition complains that whilst we affirm the decree, became Bod» ley has no title, we direct restitution, because he has title» This complaint may he as well made in all cases of re-scisión for want of proof of title. The contract is rescinded because the vendor fails to exhibit satisfactory documents of title. But the possession should be restored because the vendee, having entered under the vendor, will not be permitted to withhold restitution by denying the tille of his vendor.

Where ven-dee enters under an exeou-tory contract chancellor ’ willnoirescind th'thout de0< creeing reati-iution of the-land to vendor

The only question then, in this case, is, did McChord enter under Bodley? And this we consider, as settled by the facts and the law. On the question of estoppel on similar facts (in ejectment,) the supreme court of New York said, “the defendant being in possession when the agreement was entei'ed into, can make no difference. He was in as a mere naked possessor, and must be considered in the same light as if he had entered under the agreement;” (Jackson vs. Ayres, XIV Johnson, 225.)

If Bodley had sued McChord in ejectment, would not the latter have been e.topped to deny the title of the former? It must be admitted that he would have been, unless the cases which wc have cited, and the n onerous authorities to which they refer, are all wrong. We k ow of n) opposing au'hority. But McChord would not have been estopped to deny Bodley’s title (in an ejectment,) unless he entered under that tide. And, therefore, as he would have been so estopped, he must hive, entered or be considered as having entered under Bodley. And consequently, according to the petition itself, it seems to follow inevitably, that Bodley is entitled to restitution, because, either in fact or in law, the entry of McChord was under his title, and his possession has, for more than if) years, been protected by that title, and that alone. Me Jhord has not attempted to prove that any fraud was practiced by Bodley; and it does not appear that any person has filie to the land, unless Bodley has. A majority of the court can, therefore, see no reason why Bodley should not be put into possession of the land.

Judge Underwood

not concurring in opinion with the majority of the courts in this case, delivered his ovni opinion, as follows.

The depositions of three witnesses only, are taken in this cause. Each of them prove that David Mc-Chord, the father of the defendant in error, settled on the land and made improvements, one, two or three years before he contracted to purchase from Bodley. Two of the witnesses prove that McChord entered in January, 1803. The written contract with Bod-ley bears dale in July, 1308. The other witness states that David McChord sef tied on the land in 1806,. as “nea:ly as he can recollect;” that he first made a parol contract with Bo Iby, and afterwards expressing his fears that Bodley might sell out over him, the latter reduced the contract to writing. But this witness who was not favorable to Bodley, expressly states that Mc-Chord lived upon the land one or two years before he made any kind of contract with Bodley, and that he “did not settle under said Bodley.” David McChord sold the land to his son, William, the defendant in error. In 1834, Bodley bound himself, in writing, to convey to said William one hundred acres of land, including the place where “David McChord lately lived.” William McChord filed his bill to enjoin a judgment for part of the purchase money, and called for the production of Bodley’s title, who showed none, and therefore, the circuit court set aside the contract. Under this State of case, the ques1 ion is, whether the circuit court erred in refusing to decree (not a restoration of the possession, for Bodley never had that) a surrender of the land to Bodley.

If David McChord, the original improver, was a mere squatter, for aug.it that appears in this record, he had as much right and title to the land as Bodley. I cannot say that Bodley has any title whatever, when-he never had possession, and exhibited no patent,, and made no proof that he claimed or held under those who had title or possession. There is no pretext then-for compelling McChord to surrender the land, unless he is estopped to deny Bodley’s title. I do not believe he is estopped by any principle of law to make-the denial. Estoppels are of three kinds, matter of record,, matter in writing, and matter in pais; see Thomas’ Coke upon Littleton, III, 430. Now, I admit, if it had been shown that the McChords entered under Bodley’s claim, they might have been estopped by that, as matter in pais. But it is clearly shown that no such entry was made. If then, there is any estoppel here, it results from the contract in writing, which once, subsisted between the parties, but which the court has annulled by its decree. I acknowledge, that so long as this contract remained in force, it operated as an estoppel.. But when it was overruled, I contend that it had, and could, thenceforth, have neither retrospectively or prospectively, any operation whatever, upon the rights of parties, in regard to the possession of the land, or to ownership over it. So much of the opinion delivered as gives the effect of an estoppel, to the written contract, af er it has been cancelled by the decree of the court, is to my mind, the establishment of a new princi-pie, not only without the sanction of any adjudication, but in opposition to the principle of the cases relied on in support of it. The case of Jackson on the demise of Brown and others vs. Ayres, XIV Johnson, 224, was an ejectment maintained by the lessor, upon an executory contract. The defendant was in possession when he entered into the contract, and the court very pioperly hold, that he was estopped. But both_1_ the inferior and superior court, in that case, held, that the defendant might show, if he could, that he had been deceived or imposed on, in making the agreement. Suppose that had been shown, what consequence would have followed? Certainly then the estoppel would have been avoided. The offer to permit the defendant to show that the agreement was unduly obtained, could have had no possible effect, but to avoid the estoppel. The case of Peddicord vs. Hill, IV Mon., 374, shows that estoppels may he avoided in law or equity, by proof of fraud. Now 1 do not pretend to say, that Bodley has been guilty of actual fraud. Indeed 1 am inclined to think he has acted honestly and liberally. He says he has title, but it would cost him more to show it than • his claim against McChord is worth. This may all be true, but a court of justice cannot act upon such statements from interested parties. It must betaken, that Bodley has sold land to which he has no title, and this, in the estimation of law, is a fraud, and it is for this very reason, that the court has annulled the contract. Here then the estoppel, which would have existed so long as the contract remained in force, and which resulted from the wilting', is entirely avoided. As there is no proof that McChord entered' under Bodley’s title, and which might have been shown, independent of the written contract, as was decided in Hamilton vs. Taylor, Lit. Select Cases, 444, there is no estoppel by matter in pais. It will not do to say, that when a man is once estopped, he must remain so forever; Chiles vs. Bridges, Select Cases, 428, is an authority in point to the contrary.

It therefore appears to me, that the effect of the opinion is this, it was wrong in Bodley to sell lands to which he had no right, and consequently, the. contract was properly rescinded.; but as Bodley succeeded in making McChord believe he had title, and thereby induced him to enter into the contract, he ought now to surrender the possession of the land, notwithstanding the contract is rescinded, and although it does not appear that Bodley has the shadow of a title. Against such a doctrine, I feel it to be my duty to dissent.-' I cannot reward Bodley for selling land to which he has no title.  