
    Commissioner in Equity v. Executor of Robinson.
    Columbia,
    Jan. 1829.
    The surety to a bond for the purchase money of a tract of land cannot set up eviction by title paramount to the greater part of the tract, for the purpose of avoiding the contract, when the principal himself has acquiesced in a pro rata abatement of the price.
    Tried before Mr. Justice Huger, at Edgefield, Fall Term, 1828.
    Debt on bond. The brief stated the following case. The defendant’s testator was surety to a bond executed by William Payne, to secure payment of the purchase money of a tract o< land, sold by order of the Court of Equity to make partition atnong the heirs of Goode. The sale had been ordered on the application of Payne, who had married Goode’s widow. Subsequently to the sale it was ascertained that 217 acres of the laud sold did not in fact form part of the estate of Goode, but were the inheritance of his widow ; and they were adjuged to her by a decree of the Court: leaving, of the whole tract purchased by Payue, somewhat less than 100 acres, lying in detached parcels. Payne died shortly afterwards, leaving his bond unpaid ; and this action was brought to recover the sum due after allowing a pro rata abatement of that part of Payne’s purchase which had been adjudged to his wife.
    On the part of the defendant, witnesses were called, who testified, that the 217 acres were the most valuable part of the tract, and that the detached parcels which remained were of inferior quality, and of little or no value by themselves: And it was contended, that the entire object of the purchase being defeated, the whole contract must be regarded as rescinded.
    His Honor, the presiding Judge, charged, that as Payne had himself applied for the order of sale, under which he purchased, he must be presumed to have known the state of the title, and ivas bound by his contract; nor was his surety intitled to relief under the civil Jaw rule adopted by our Courts.
    The jury found for the plaintiff; and the defendant now moved to set aside their verdict, and for a new trial, on the following grounds.
    1. That (he entire object of the purchase having been defeated, the contract of sale must be regarded as at end, and the consideration of the bond had therefore wholly failed.
    2. That if the contract was not rescinded, there ought to be more than a pro rata abatement, as the land which remained was of inferior value to that which was taken away.
    
      3. That his Honor was mistaken in treating this as a case under the civil law doctrine of implied warranty, which he was unwilling to extend; it being a clear case of a contract made under a mistake as to fact, and which was therefore voidable without reference to the civil law rule.
    4. That the verdict was contrary to law and the evidence.
    Bauskett, for motion.
    Brooks, contra.
    
   Johnson, J.

delivered the opinion of the Court.

Connected with the decree of the Court of Equity, there is a circumstance, not noticed in the brief, but which forms a part of the. decree, and is consequently evidence in the case, which will-be necessary to the more perfect understanding of the matters in dispute. St is, that a credit was ordered to be indorsed on this bond, for the value of the land adjudged to belong to Mrs. Payne as her inheritance, at a pro rata valuation, and that William Payne the purchaser acquiesced in that decree.

The question then arises, and it seems to' me the only one growing out of the case, whether the surety to a bond, given as the price of a tract of land, can elect for his principal, whether he will avoid the whole contract on account of a partial failure of the consideration, or only claim a pro rata deduction ? I think not. If the contract be founded on a good and legal consideration, the relation of principal and surety does not confer on the latter any power over the will or judgment of the former. He may think that a safe bargain, which in the eyes of the surety might appear ruinous and improvident; and it would be a strange result,'that the seller should be bound with respect to the principal, aud that the security should be avoided, because the surety was able to show that the contract was unequal. If then the decree were not conclusive of the matter now in dispute ; yet the acquiescence of Payne in it is, at least, evidence of his election to hold the residue of the laud, upon the terms settled by it; and the defendant is bound by his acquiescence.

But again : on the death of Payne the title of the land, then being in him, vested in his heirs at law; and if his estate were solvent, they alone had the power to consent that it should be revested in the seller. If insolvent, then it became a matter of interest to his creditors, whether the contract should or should not be cancelled: so that in any possible view of the case this motion cannot prevail.

Motion refused.  