
    Frost vs. Brunson.
    Where a bill is filed to rescind a sale of land, upon the ground that the defendant cannot make a title, the general rule is to grant a reference to the master to report as to the state of the title.
    But, if it manifestly appears from the bill and answer that no title can be made, a reference will not be ordered.
    If the master reports in favor of the title, a reference is made to him to approve of the conveyance.
    ,If the master reports that the vendor cannot, at the time of the report, make a good title, the purchaser cannot insist on being discharged from the contract, if the vendor can make a good title in reasonable time.
    The reference to the master may be made upon motion of either party, before the answer is filed, unless when controverted matters, aside from the title, are involved.
    The hill charges, that on the 10th of May, 1825, Brun-son, by his written covenant, bound himself to make to. complainant a deed in fee simple to a tract of land, belonging to the heirs of John Shelby, in consideration of certain services to be done by complainant, and exhibits the writing. In the bond no time is fixed for the deed to be made. The bill also charges, that on the 11th of November, 1817, John Shelby made his will, by which he devises and directs that all his property not before specifically devised, should be equally divided by a majority of his executors, between his three children Albert M. Shelby, Louisa L. Brunson and Clark M. Shelby, share and share alike.
    Charges, that when Branson gave his obligation, he represented that he had a good title; that it was a part of a three hundred and twenty acre tract which formerly belonged to John Shelby, having been conveyed to him by William Wetherly.
    Charges, that the three hundred and twenty acre tract was conveyed by Wm. Wetherly to John Shelby in 1804; that it was not specifically devised by John Shelby; that the will was properly proved and recorded; that he appointed Wm. C. Jameson, Henry Bryan, Anthony B. Shelby and Albert M. Shelby executors; that a majority of them had not divided the estate, not specifically devised, between the three children of the testator; and charges, that Brunson has not such an estate or interest in the tract agreed to be conveyed, as will enable him to make a deed in fee simple.
    Charges, that Brunson recovered a judgment against him at the August term of the circuit court of Montgomery county, for a breach of said covenant on his part, for the sum of five hundred and ninety three dollars and costs. And also, on motion, a judgment against Morrison, Trice and Bayless, (his securities in an appeal in said cause from the county court,) which securities are made defendants to the bill.
    Prays an injunction, and that Brunson may show what title he has to the land, and file his title papers, and show especially, whether a majority of said executors has divided it, and to file said division, and if one had not been made and the title is not good, prays for a rescisión of the contract.
    Jesse Brunson’s answer, filed March 1329, admits the covenant exhibited; states, that he and his wife, Louisa L. executed a deed to the complainant, with covenant of general warranty, for the land described in the covenant; the deed is exhibited, dated 30th October, 1820, which deed was accepted by complainant; after which he instituted the action against the complainant, and recovered the judgment as stated.
    On the trial at law, complainant produced said deed, and insisted that the execution and delivery of said deed, unaccompanied with the privy examination of his wife, was insufficient to pass the title; and resisted the recovery on the ground that the conveyance was a condition precedent to defendant’s right of recovery, &c. After the trial at law, the defendant proffered to 'get the acknowledgment of said deed by his wife, and complainant put it into his hands for that purpose, and he procured the privy examination of his wife, and acknowledged it himself.
    The land was part of John Shelby’s estate, not specifically devised, but ordered to be divided as stated in the will. The executors omitted and failed to make the division, and he (defendant) and wife, petitioned the county court for partition, and had partition made according to the law and practice in such cases. By the division, the land covenanted to be conveyed to complainant was allotted to defendant and wife; a copy of the record of these proceedings was exhibited. The complainant was present when the commissioners surveyed and made the partition previous to his purchase.
    No objection has ever been made by the executors or heirs of Shelby to the partition, at least none is proved, and the complainant has been in possession ever since his purchase. Brunson admits that he stated he had a title; he then thought and yet thinks it was a correct representation.
    An amended answer filed Augustlerm, 1829, shows, that since the preceding term he had procured the deeds of two of John Shelby’s executors, confirming the partition of the county court, which are exhibited. The decree of the chancery court rescinded the contract, &c.
    Defendant’s counsel prayed for á rehearing upon an affidavit that Brunson could and would procure the acknowledgment of his wife in open court, according to the forms of the law. This was refused. No reference ever was made to the clerk to report what title could be made.
    Clayton, for complainant.
    The case turns on the question whether a good title is tendered to the complainant; for if the title is clearly defective, equity will enjoin the payment of the purchase money and give the purchaser relief. Ralston vs. Miller, 3 Ran. 44. We think that the title is defective; 1st. Because'the title of Mrs. Brunson is not conveyed in the manner prescribed by the act of Assembly. 2d. Because the partition was not made in pursuance of the directions of the will. 1st. The act of Assembly gives power to the courts to appoint commissioners to take the privy examination of femes covert, when from any cause they cannot attend the court. A slight or temporary indisposition is not deemed to be such cause as warrants the appointment of commissioners under the act of Assembly. 2d. The partition was not made by the executors as directed by the will, but by an order of the county court. The act in regard to partition relates exclusively to the estates of intestates; it gives no power where there is a will. The devisees by common consent might have adopted a different mode of partition from that prescribed by the will; but no such consent was given, nor could it in this instance have been given, because .of the infancy of one, and the coverture 0f another of the devisees. If the executors failed to . , , perform the trust, there was no course but to resort to equity to compel its performance. Fon. Eq. 460, new edition. The act of confirmation is by two executors only, there are four named in the will, and two does not constitute a majority as required by said will. In this case there was no attempt to execute the power vested in the executors: it is a rule of equity to aid the defective execution of powers, but not to aid where there has been no attempt to execute. Holmes vs. Coghill, 7 Yes. 499. If the title be thought defective on either of these grounds, the decree for complainant will be affirmed. The title must be defective, and must continue to be so until the partition is ratified by the infant devisee. But if the court should think the title is now good, Brunson will at least be decreed to pay the costs, because his title has been acquired subsequent to the filing of the bill.
    
      W. E. Anderson, for defendant.
    A purchaser having paid part of the money, enjoying possession under a warranty deed, cannot resist the payment of the balance. Abbot vs. Allen, 2 John. Ch. Rep. 519: 5 John. Ch. Rep. 84, Goveneur vs. Elmonstorf. The court will not rescind this contract if a good title can now be made, and a reference of the title is a matter of course. 4 John. Ch. Rep. 659, M’Combs vs. Wright.
    It is not necessary ,even for a vendor to obtain a decree of specific performance, that he should have a good title at the time of sale; if he can prdcure a good title in a reasonable time, , it will be sufficient. 1 Maddox Ch. 437-8, and references: 2 P. Williams, 630, Langford vs. Pitts: 6 Vesey, 654, Jenkins vs. Hill: 7 Vesey, 205, Wynn vs. Morgan: 10 Vesey, 304, Mortlock vs. Buller: 1 Wheaton’s Rep. 179.
   Catron, Ch. J.

delivered the opinion of the court.

Was the defendant, Brunson, in this case entitled as of right to a reference? He resists the relief prayed, on the ground that he can make title. How Ijy the -standing rules of the court is this to be ascertained: by proof? this would encumber the files with evidence unnecessarily, and of a character that could not be parted with — title deeds. It is a general rule in such case to grant the reference. 1 Maddox Ch. 343-4: 2 Maddox, 208. But if it manifestly appear that a title cannot be .made from the bill and answer, the court will not refer it; and this is an excéption to the general rule.

If the master report in favor of the title, a reference is made to him to approve the conveyance. 1 Mad. 348. But suppose he report against the title, that the vendor cannot at the time of the report make a title; yet the purchaser cannot insist on being discharged from the purchase, if the vendor is capable of making a good title in a reasonable time. Ibid, 349-50.

The practice in England is, to refer the matter of title before any answer is filed, on motion of either party. 2 Mad. Ch. 208: 1 Ves. and B. 1: Balmannor vs. Lumley, 1 Ves. and B. 324. This is only where the single point of title is in dispute. — vs. Skelton, 1 Ves. and B. 516: Blythe vs. Elminhirst, 1 Ves. and B. 1. In the cause before the court nothing but the title was in dispute, and no reason is seen why the reference could not have been had without even an answer. If, however, either party insist on a hearing because of controverted matters aside from the title, then these must be heard, if not manifestly frivolous, before a reference is made. Blythe vs. Elminhirst, 1 Ves. and B. 1. In this instance there is no objection to the reference, and if the title be reported against, for the reasons that Anthony B. Shelby’s assent to the partition of John Shelby’s estate was necessary, and that Mrs. Brunson’s privy examination had been informally taken; yet time should be given to supply these merely formal defects, as they most obviously are. To discharge complainant from the contract under the oircum-stances presented, would be unprecedented. So the circuit court ought to have adjudged.

Decree reversed.  