
    Glassell v. Thomas.
    October, 1831.
    Contracts — Mutual nistake — Rescission.—Where, in an agreement, a mutual mistake is made, by both parties, in a matter which is the cause and subj ect of the contract, that is, in the substance of the thing contracted for, no fraud being imputable to either party; such mistake is good ground in equity for rescinding the agreement, even after it has been fully executed by conveyances by both parties.
    Same — Same—Same—Totai.—And where an agreement is rescinded, it must be intirely rescinded.
    Foreign Attachments — Garnishee—Defences.—In the case of a foreiirn attachment in chancery, to attach a debt alleged to be due from a home defendant to the absent defendant, to satisfy a debt due from the absentee to the plamtifi, the garnishee may set up any equitable defence, which shews that in eciuity he owes no debt to the absent defendant.
    In 181S, Joseph Towles, then of the county of Madison, Virginia, was the owner in fee of a tract of about 400 acres of land in that county, which he was desirous of selling ; and Andrew Glassell, of the same county, was (or claimed to be) the owner in fee of a tract of 2000 acres of land lying on the waters of Deer creek, in the county of Henderson, Kentucky, which he claimed under a patent granted to James Mercer, dated the 14th December 1787, and which he was desirous of selling; and Towles and Glassell entered into a treaty for the sale and purchase of these their lands, respectively, by each to and of the other. During this treaty, Glassell shewed Towles the grant to Mercer under which he claimed the Kentucky lands, and the title papers whereby he deduced the title from Mercer to himself, and a plat which, he said, was a plat of his ^Kentucky lands made by his son Sobert: this plat exhibited a parallelogram, without line trees, courses or distances, divided by a line through the middle, into two tracts of 1000 acres square, lying on both sides of Deer creek; and represented the lower tract as having upon it, a mill seat and some low land, upon the creek running through the tract, one large and three smaller springs, and two licks. The plat so shewn by Gias-sel to Towles, was made in 1814, and its history was this: Glassell in that year, sent his son Robert to Kentucky, to get an accurate account of his lands there: Robert Glassell went to Ruby, a public survey or in that country, and shewed him a copy of the courses, distances and descriptions of two adjoining 1000 acre surveys, each of a square figure, lying on Deer creek, and requested him to shew him the lands: Ruby professing to be well acquainted with the lauds, shewed him the beginning corner free of George Lewis’s two 1000 acre surveys, through which the creek ran, which (he deposed) he knew, at the time, was the land that Lewis had transferred to Andrew Glassell, and which Robert Glassell said was his father’s land; and he shewed him also a mill seat, a large spring, and a scite for a distiller}', which were in fact on the lower of the two tracts; and then Robert Glassell and Ruby made out a plat of the two tracts, indicating the form, the course of the creek running through them, and the mill seat, the large and small springs, and the licks on the lower tract, but without courses, distances or line trees, which Glassell said he had, and could make the plat complete when he got home. Robert Glassell brought this plat home, and delivered it to his father Andrew. But this was not a plat of the lands which Glassell in fact owned or claimed, though he believed it was, and intended no misrepresentation, or deception upon Towles, when he shewed it to him as a fair description of his Kentucky lands.
    The treaty resulted in a contract between the parties, evidenced by the following-articles signed and sealed by them, dated the ISth August 1815 — -1 ‘Memorandum of an ^agreement entered into between J. Towles of &c. on the one part, and A. Glassell of &c. on the other. The said J. Towles agreeth to sell all his land whereon he now liveth, being 400 acres more or less, to the said A. Glassell for fifteen and a half dollars jjer acre, agreeably to the survey hereafter to be made; the land to be delivered up in October 1816, at which time the money is to be paid down, if there is any left after the agreements hereafter mentioned are complied with. The said J. Towles agreeth to lake one of two tracts of land, each containing 1000 acres more or less, lying on Deer creek one of the waters of Green river in the state of Kentucky, and owned at present by the said A. Glas-sell, for whatever it may be valued at, at eighteen months credit; the valuers to be Paul Leathers who lives near the said land, and any two men he may choose. The land in Kentucky to be surveyed by an authorized legal surveyor, and the land in Madison to be surveyed by the county surveyor, at the expense of A. Glassell. If the said J. Towles should draw any money before he gives possession of his land, he is to allow lawful interest until such possession is given. The said J. Towles agreeth to take such bank notes as pass currently in Virginia — -Witness our hands and seals &c.” Afterwards, in September following, additional articles were agreed to, indorsed on the other, and signed and sealed by the parties, in these words: “In addition to the within agreement, it is agreed by the said A. Glassell, that the said J. Towles shall have the said 1000 acres of land mentioned within, at fifteen shillings per acre, provided he shall see cause to take it at that price before valued. Should he not see cause to take it at that price, and in case the said A. Glassell should not be satisfied with the valuation of the said land, he is to have till the 1st February next, to determine whether or not he will abide by the valuation within concluded on. In case the said A. Glassell should not abide by the valuation, and determine on keeping the land in Kentucky he the said A. Glas-sell is to have three years *to pay the amount in money that the Kentucky land would have paid. Agreed this 28th September 1815.”
    In 1816, Towles sent his son Henry Towles to Kentucky, as his agent to take a view of Glassell’s lands there, to select one of the tracts, and to have it surveyed and valued: and by this agent, Glassell sent a letter to Paul Leathers, (the person named in the articles of August 1815, who lived in the neighbourhood of the Kentucky lands), requesting Leathers to shew the agent the lands, and to attend for Glassell to the surveying and valuation thereof, according to his contract with Towles, and especially to shew young Towles the large spring and mill seat on the lower tract (those, namely, laid down in the plat made in 1814, which had been shewn to Towles before the contract was concluded). Young Towles repaired to Kentucky, with this letter from Glassell to Leathers, but without carrying with him the title papers by which Glassell claimed the land. The letter being delivered to Leathers, he with Ruby the surveyor (the same who had shewn the lands to Robert Glassell in 1814) shewed Towles the same lands laid down and described in the plat of 1814, and the spring and mill seat on the dower tract indicated on that plat, and a convenient scite for a distillery; upon which young Towles selected the lower tract for his father; and then Leathers, together with Ruby the surveyor chosen bjr Towles, and Ashby chosen by Leathers and Ruby, valued the tract at two and a quarter dollars the acre; and Ruby made a survey of it, whereby it was found to contain 1155 acres; the price óf which at the valuation, amounted td 2598 dollars 75 cents.
    Henry Towles, the agent, returning to Virginia, with Ruby’s new plat of survey of the lower tract thus selected by him, and the valuation so made of it, Glassell in execution of the articles on his part, by deed dated the 26th September 1816, in consideration of 2598 dollars 75 cents (the price ascertained by the valuation), conveyed this tract of 1155 acres to Towles, describing it by reference to Ruby’s recent survey, and by the line trees, lines, courses and distances *in that plat mentioned, and as being one half of a 2000 acre survey of land, number 1291, granted to James Mercer, by patent dated the 14th December 1787, — with general warranty, and covenants of good title, and good and lawful right to convejr. And Towles, on his part, convej-ed his land in Madison to Glassell. Thus, the articles were fully executed.
    Towles, shortly afterwards, sold the Kentucky land conveyed to him by Glassell, to Robert Thomas, for the same price which he had given for it, and by deed, dated the 7th November 1816, conveyed the same to Thomas, with general warranty, and covenants of good title, and good and lawful right to convey, describing the land by reference to Glassell’s deed thereof to him, and by the metes and bounds and other description in that deed contained; and Thomas paid him the purchase money 2598 dollars 75 cents. Soon after this sale, Towles removed from Virginia to Kentucky.
    Thomas, in October 1819, made a lease of the land conveyed to him by Towles, to one Walker, for ten years, reserving to himself the right to improve the mill seat and the distillery. Walker going to Kentuckj' to take possession of the premises under the lease, found that the land was claimed by and in the possession of a son of George Lewis. And then, it was discovered, that the land laid down in the plat of 1814, which Robert Glassell brought from Kentucky, as a plat of his father’s lands, and which A. Glassell had shewn to Towles as such, and the lower tract thereof which Henry Towles selected and had surveyed by Ruby in 1816, and which was conveyed by Glassell to Towles, and by Towles to Thomas, according to the latter survey, never was Glassell’s property; that this land had been granted to George Lewis, according to survey number 617, by patent dated the 13th January 1792; but that adjoining to this tract, was another tract of 2000 acres, lying not on Deer creek, but on a branch thereof, which had been granted to James Mercer, according to survey number 1291, by patent dated the 14th December 1787, and that this 2000 ’‘"acre tract was the land which Glassell really claimed under Mercer’s patent.
    Upon this discovery of defect of title, Thomas exhibited his bill against Glassell and Towles (now a non-resident) in the superiour court of chancery of Fredericks-burg, wherein — -after stating that Towles, in the year 1815, was the owner of the tract of 400 acres in Madison, which, being desirous of removing with his family to the western country, he was offering for sale ; and that Glassell, about the same time, being anxious to sell some land lying in Kentucky, to which he supposed he had the fee simple title, and to vest the proceeds in land in Madison or the adjacent counties, in order to effect his wishes, proposed trading with Towles; that Glassell informed Towles, that he was the owner of two tracts of land lying upon Deer creek in Kentucky, containing 1000 acres'each, conveniently situated, well-watered, heavily timbered, of a fertile soil, having upon it a valuable mill seat, and a scite for a distillery, which could be watered from a large and never failing spring; that Glassell exhibited to Towles the plat of 1814, which his son Robert had brought in, as a true description of his Kentucky land, and particularly recommended it, on account of its being so well watered, and having the mill seat, and scite for a distillery; and that Towles, well aware of the advantages resulting from those considerations in a new country, and yielding to their influence, concluded a contract with Glassell, by which he sold Glassell his Madison land at fifteen and a half dollars per acre, and agreed to receive in part payment for it one of Glas-sell’s Kentucky tracts of land at valuation —he proceeded to set forth the articles between Glassell and Towles of August and September 1815 — the mission by Towles of his son Henry in 1816, to view the Kentucky lands, and select one of the two tracts; the selection he made of the lower tract; the survey and valuation thereof; the conveyance thereof with general warranty bj' Glassell to Towles, according to Ruby’s survey of 1816; the sale and conveyance of the same tract by Towles to Thomas, *with warranty; the fact, recently discovered, that Glassell never had any title whatever to the land by him conveyed; and Towles’s departure from Virginia and present residence in ■ Kentucky. He also represented, that his main, indeed, his only inducement to purchase the land of Towles, was the mill seat and the scite for a distillery upon it. And upon this state of the case, he insisted that he was entitled to receive, directly from Glassell, the amount of the purchase money he had paid to Towles, -with interest. And he prayed a decree against Glasseil for the same, and such general relief as should seem equitable in the case.
    Glasseil, in his answer, said, that Towles first proposed the sale of his Madison land to him, but the price Towles asked was so high, that he declined the purchase, unless Towles would take 1000 acres of his Kentucky land at valuation, in part payment; and his main leading inducement to purchase Towles’s land, as Towles well knew, was that it enabled him to sell half of his Kentucky land. That he really owned a tract of 2000 acres of land, which he claimed under a patent granted to James Mercer, and shewed Towles his title papers; and this was the land of which he intended to sell, and Towles to buy, one half. That he did, indeed, shew Towles the plat of 1814, but he told him it had been made by his son, and it did not purport to be an official survey. That the mistake on which that plat was founded, was unknown to him at the time; he had not the least reason to suspect it, nor, as the plat specified no line trees, courses or distances, had he any means of detecting it. That Towles’s own agent fell into the same mistake, and confirmed him in it, by bringing him an official survey, not of his own, but of Lewis’s land; and he misled thereby, and still not suspecting the mistake, made the conveyance to Towles, describing the subject, indeed, by the metes and bounds specified in that survey, but also by reference to Mercer’s patent by its date, and to the precise number of his survey, which shewed what was the land intended by the parties. That he made no particular recommendation of *the land to Towles; nor was Towles at all influenced in making the contract, by its qualities, since he was to take it at a fair valuation. That he, Glasseil, still held the land he claimed under Mercer’s patent, and had good title to it; and this land lay on the waters of Deer creek adjoining the other, and was as valuable, in all respects, as that which he had conveyed by mistake. That Thomas could justly claim of him only what Towles, if he had held and been evicted, could justly claim of him; that Towles could only have claimed, either that the whole contract should be rescinded, so that the Madison land should be restored to him, and the purchase money thereof refunded to Glasseil; or, that the mistake in Glassell’s conveyance should be corrected, and a quantity of the Kentucky land which Glasseil really owned, equal in value to that he had conveyed through mistake, should be now conveyed to him. That he Glasseil was ready to assent to either alternative. And that he had offered Thomas all that Towles, or by consequence Thomas, could justly claim of him; namely, to convey to Thomas, an equal number of acres of the land he really owned, in lieu of that he had conveyed to Towles through mistake, and that at valuation ; and to pay him in money, whatever difference there might be in the value of the two pieces of land, if indeed there was any, to be estimated by valuers as at the time of the contract, with interest from the date of the conveyance to Towles.
    The absent defendant Towles did not put in an answer, and the bill as to him was taken pro confesso: but he was examined as a witness, by consent, and he deposed, that in the treaty between him and Glasseil in 1815, Glasseil agreed to purchase his Madison land, upon condition that he would take 1000 acres of Glassell’s Kentucky land lying’ on Deer creek, a plat of which was shewn to him; and he believed Glasseil would not have purchased his Madison land, unless he’ had agreed to take the Kentucky land; at least, he said he would not: that he did not wish to take the Kentucky land, but rather than not sell his own land, he ^agreed to take Glassell’s at valuation, being (as he understood) one half a 2000 acre tract patented in the name of George Lewis: that the plat of the Kentucky lands shewn him by Glasseil, was one which, he said, had been made by his son (it was the plat of 1814) : that as he did not intend to remove to the Kentucky land, he did not care how low it should be valued, since the lower the valuation, the more money he would be entitled to receive of Glasseil; nor would he have cared how high it was valued, provided he could have sold it for the same price; he wished it valued low, being in need of money; yet, after seeing the plat, he instructed his son, when he sent him to make the selection, to be particular in examining the land for water, and not to take any <and without water; in short, to take the land that was best watered, which appeared from that plat tobe the lower tract: that he believed Glas-sell had sold and conveyed that land to him in perfect good faith, honestly believing it was his own: and that he believed Thomas would not have bought the land of him, but for the mill seat, the scite for a. distillery, and the springs upon the tract.
    As to the 2000 acre tract granted to James Mercer by the patent in December 1787, Glasseil deduced the title thereto from the grantee to himself, thus: Mercer conveyed that tract to George Lewis, by deed dated the 25th September 1793; Lewis conveyed it to William Glasseil, by deed dated the 5th October 1796; and William conve3’ed it to Andrew Glasseil, by deed dated the 3rd May 1798. The patent to Mercer, and his deed to Lewis, were exhibited; but Lewis’s deed to William Glasseil, and William’s deed to Andrew, were not filed in the cause, though Thomas said such deeds had been shown to him, but alleged, that the deed from William to Andrew Glasseil had not been duly recorded ; and his counsel argued, from the contents of Mercer’s deed to Lewis, and from some proofs in the cause, as well as from the absence of the deeds from Lewis to William Glasseil, and from William to Andrew, that his title to this land was by no means clear.
    *There were many depositions taken and filed by both parties, as to the value of the land actually conveyed by Glasseil to Towles and by Towles to Thomas, and of the mill seat, scite for a distillery and springs upon that tract, and as to the value of the adjoining 2000 acre tract, which Glasseil owned or claimed under Mercer’s patent, and the advantages of the like kind afforded by the running water upon it: and the opinions of the witnesses were various and contradictory: but in the opinion of the judges of this court, the evidence proved, that the one parcel of land was as valuable as the other, and as well or better watered.
    The court of chancery was of opinion, that Glassell really intended to sell, and Towles really intended to buy, the identical tract of land, designated on the plat of 1814 exhibited during the treaty, through which Deer creek flowed, and on which were the natural objects of low land, mill seat, springs and licks, according to the description on the plat, and that the same identical land was conveyed, and intended to be conveyed, by Glassell .to Towles by the deed of September 1816; that, as it now appeared, that Glassell never bad any title to this tract of land, his covenants of good title and good right to convey, in that deed contained, were broken at the moment of the execution of the deed; that, therefore, these covenants did not pass to Thomas by force of Towles’s deed to him of November 1816, so as to enable Thomas to maintain an action at law against Glassell for the breach of those covenants; but that, as Towles had in like manner broken his covenant of good title contained in his deed to Thomas, at the moment of the execution of that deed, and as Towles was an absent defendant, the court had jurisdiction to give Thomas relief, under the statute concerning attachments and suits against absent defendants, 1 Rev. Code, ch. 123, p. 474, —that, though it appeared, that both Glas-sell and Towles did really believe, that Glassell had title to the land he sold and conveyed to Towles, under the patent to Mercer, yet that was no valid objection to the demand of Towles against Glas-sell for damages for the breach *of his covenants, since the error originated with Glassell and was by him communicated to Towles; but that the measure and amount of damages could be best and most properly ascertained by a court of law and jury: therefore, the court directed issues to be tried at the bar of the circuit court of Spotsj'lvania, to ascertain the damages sustained bjr Thomas, by reason of Towles’s breach of his covenants of good title and good right to convey, contained in his deed to Thomas of November 1816, and the damages sustained .by Towles bjr reason of Glassell’s breach of his covenants to the like effect, contained in his deed to Towles of September 1816.
    The issues were accordingly tried in the circuit court, and the jury found upon the issue between Thomas and Towles, that Thomas had sustained damages to the amount of 3806 dollars, with interest on 2598 dollars 75 cents, part thereof, from the 30th May 1823 till paid; and, upon the issue between Towles and Glassell, that Towles had sustained damages 3639 dollars, with interest on 2598 dollars 75 cents, part thereof, from the 30th May 1823 till paid.
    The circuit court having certified this verdict to the court of chancery, the chancellor decreed, That Thomas should recover of the absent defendant Towles, the damages assessed for him against Towles, by | the verdict; and that Glassell, in part satisfaction thereof, should pay Thomas the amount of the damages assessed by the verdict for Towles against Glassell; and that Glassell should pay the plaintiff his costs: with a direction, that the effect of the decree should be suspended, till the plaintiff should enter into bond with sufficient surety, in the clerk’s office, in a penalty equal to double the amount decreed to him against the absent defendant Towles, for abiding such future order or decree as might be made for refunding the amount decreed with interest to Towles, upon his appearing and answering the bill, according to the rules of the court and the statute concerning absent defendants. (1 Rev. Code, ch. 123, g 2, p. . 475.)
    *Rrom this decree Glassell appealed to this court;
    where the cause was argued by Stanard for the appellant, and Johnson and Leigh for the appellee.
    
    
      
       Contracts — Mutual Mistake — Rescission.—Where a' contract has been executed in mutual mistake in 'a matter which is the cause and subject of the contract. no fraud being imputable to either party, such mistake is good ground in equity for rescinding the agreement even after it has been fully executed by conveyances by both parties. Worth-ington v. Staunton, 16 W. Va. 242, citing Glassell n. Thomas, 3 Leigh 113. To the same effect the principal case is cited in Kerry v. Clarke, 77 Va. 409; Crislip v. Cain. 19 W. Va. 475; Butcher v. Peterson, 26 W. Va. 461; Fearon Lumber & Veneer Co. v. Wilson, 51W. Va. 30, 41 S. E. Rep. 139. And in Leas v. Eidson, 9 Gratt. 278, it is said by Moncube, J.; “It is now well settled that a mutual mistake of the parties in a matter which is part of the essence of the contract and substance of the thing contracted for, will be corrected by a court of equity, and may be good ground for rescinding the contract or executing it on equitable terms of compensation, according to circumstances, even though the contract be in writing, and required to be so by the statute of frauds. 1 Story’s Eq. Jur., § 134, 144,152,142; 1 Munf. 330 : 6 Id. 283 ; 3 Rand. 504. 6 Id. 552, 3 LeighlVS.”
      
    
    
      
       Same — Same—Same—Total.—And where an agreement is rescinded such rescission must be entire.
      For this proposition the principal case is cited in Bailey v. James, 11 Gratt. 475, and note; Ferry v. Clarke, 77 Va. 408; Worthington v. Collins, 39 W. Va. 413. 19 S. E. Rep. 530.
      See monographic note on ‘Contracts” appended to Enders v. Board of Pub. Wks., 1 Gratt. 364.
    
    
      
       Foreign Attachments — Rights of Garnishee. — A creditor proceeding by foreign attachment can stand. upon no better footing- than his absent debtor, whose moneys, goods, oreffects he seeks to subject; and Ms claim to satisfaction therefrom is subordinate to the rights aud equities of the garnishee. Williamson v. Gayle, 7 Gratt. 154, citing Glassell v. Thomas, 3 Leigh 113. The principal case is also cited in Hobbs v. Interchange. 1 W. Va. 67. See mono-graphic note on “Attachments” appended to Lancaster t. wilson, 27 Gratt. 624.
    
    
      
       The state of the case has been made so very minute and full in order to make it intelligible, and two of the judges have discussed it so elaborately, that it is thought best not to report the equally elaborate argument at the bar, which might extend the report of the case, necessarily too prolix, to a length disproportioned to its importance. — Note in Original Edition.
    
   CARR, J.

Taking this as a foreign attachment, by which the plaintiff seeks to condemn in the hands of Glassell, a debt which he owes the absent defendant Towles, to satisfy a debt which Towles owes Thomas, the first inquiry seems naturally to be, whether Glassell owes Towles such a debt as will justify the decree sought? It was agreed on all hands, that the rights and interests of Towles and Glassell must be settled precisely as if they were the only parties before the court, Thomas’s claim being only to such debt or duty as Glassell might be found to owe to Towles. The deed from Glassell to Towles contains covenants of warranty, good title, and lawful right to convey, and Towles’s deed to Thomas the same. Suppose Thomas had recovered at law on the covenant of title, his purchase money and interest of Towles, and Towles had recovered a judgment for the same, against Glassell, could Glassell have had relief from that judgment, in a court of equity, in any form? It is in clear proof, that the mistake with respect to the land, was intirely innocent. Glassell had 2000 acres of land lying along side of Lewis’s, to which his title is undoubted, and which in point of soil, water and seats for a mill and distillery, was (if we may credit the evidence) superiour to that conveyed : this was the Mercer tract. He shewed his title papers, at the time of the contract; and both the parties knew, that it was the Mercer land (part of it, at least) that he meant to sell; but, unluckily, Lewis’s land was mistaken for it. It is not so strange, that persons living in Virginia, and wholly ignorant of the land, should have fallen into this error, as that the neighbours and the *surveyor of the county himself, should have led them into it. It is well settled law, that although there be no fraud, or default on either side, yet the mutual error of the parties, if that error be in a matter which is the cause of the contract, that is, in the substance of the thing contracted for, is a good ground for rescinding even an executed contract. Graham v. Hendren, 5 Munf. 185; Chamberlaine v. Marsh’s adm’r, 6 Id. 283, 7; Tucker v. Cocke, 2 Rand. 66; Thompson v. Jackson, 3 Id. 504, 7; Lamb v. Smith, 6 Id. 552. Under this rule, I have no doubt, that, if Towles had obtained a judgment at law on the covenant in the deed, Glassell might have tiled a bill injoining that judgment, bringing the whole subject before the court, and praying that Towles might, if he elected to do so, take his choice of 1000 acres of the Mercer land at valuation, or that, in case of his refusal, the contract might be rescinded and the parties placed in statu quo. When I speak of the contract, I mean the whole contract, embracing the Madison as well as the Kentucky land. It was strenuously contended, and ably too, that there were two several and distinct contracts; and that, therefore, the mistake in the Kentucky land, ought not to disturb the sale of the Madison land, about which there was no error. But to me it is quite clear, that it was all but one contract. The very terms of the agreement, the admissions of the parties to it, and the proof of the witnesses establish this. Bj* the agreement Towles sells his land to Glassell for 15 dollars 50 cents per acre, and agrees to take 1000 acres of Kentucky land at valuation, and at the delivery of his land to Glassell, the money to be paid down, if there is any left after deducting the valuation of the Kentucky land : this incorporates and makes them one intire contract. Again, the plaintiff in his own bill states, that Glassell having land in Kentucky which he wished to sell and invest the proceeds in Madison land, in order to effect his wishes, proposed trading with Towles for his land; and that Tov\'les, yielding to the influence of the considerations pressed upon him by Glassell, concluded *a contract with him, by which he sold him his Madison land at 15 dollars 50 cents per acre, and agreed to receive in part payment for it, one of Glassell’s tracts at valuation. The answer of Glassell, after stating that the proposal to sell came from Towles, and that the price he asked for his land was so high, that he declined the purchase unless Towles would take 1000 acres of his Kentucky land at valuation, adds, that his main leading inducement for the purchase of Towles’s land, as Towles well knew, was che selling his Kentucky land. Towles, in his deposition, so far from denying this, confirms it; he says, that Glassell agreed to purchase his land of him, upon condition that he would take 1000 acres of Kentucky land; that he did not wish to take the Kentucky land, but rather than not sell, he agreed to take it at valuation ; and that he does not believe Glassell would have bought his land, if he had not agreed to take the Kentucky land. It is most clear to me, that in the purchase of the Madison land, the making payment in the Kentucky land, so far as it would go, was as much a part of the contract, as the payment of the balance in money was: and any man acquainted with the ordinary transactions of life, must know, that with Glassell it would probably be a most important consideration. How often do we see a price given for property, when it is to be paid for in barter, labour or other facilitie.s, which the buyer -would not have an idea of giving if it were to be paid in money?

The mistake which occurred, was as much the work of Towles as of Glassell; for though the plat taken by Robert Glassell, described the land of Lewis, instead of the Mercer tract, yet this was a mere transcript from the surveyor’s book, not founded on actual survey, with no courses and distances, and was not intended to govern, and did not govern, the parties, in the consummation of the contract. This is clear, from that part of the agreement, which provides that the land in Kentucky shall be surveyed by an authorized legal surveyor at the expense of Glassell. Under this provision, it was the business of Towles to see to the *survey, and have it correctly made: he sent his son to attend to this, and if he had taken along with him the description of the land from the patent to Mercer, the mistake into which the plat of 1814 was leading them, would have been discovered; the true land would have been surveyed; and, as no particular tract was specially wished for by Towles, the contract would have been correctly executed. But, instead of this cautious course, young Towles went, without any title papers, to the surveyor Ruby ; and he surveyed the Lewis instead of the Mercer tract. Both parties then may be considered equally instrumental in producing this innocent mistake. Would it not, in such a case, be exceedingly harsh to say that the whole loss should fall upon Glassell? that he should be obliged to hold the Madison land, and pay 6200 dollars for it, all in money, when he had contracted to pay nearly half of it in land, and would have bought on no other condition? and this too, when the very land, which he meant to give in part payment, was there, lying by the side of the land conveyed, and equal if not better than that land in every respect; and when from the moment the mistake was discovered, Glassell was willing- and offered to convey an equal quantity of this land, at valuation, and to pay with interest whatever it might fall short of the amount to which the Lewis land was valued. I cannot think that such a decree would be consistent with the settled course of decisions, or the true spirit of equity.

It was contended, that though the parties were in a court of equity, yet that the plaintiff had come here upon his legal rights (which the absence of Towles enabled him to do) ; and that in such cases, equity must proceed according to strict legal rule; that if Towles were in a court of law, suing Glassell upon his covenants, no equitable defence, no correction of the mistake, or rescinding of the contract, could be heard, and, therefore, that Glassell can make no such defence in this foreign attachment. To this position I can,, by no means assent. I admit, that the legal claim, in such cases, must be governed by legal rules; but if there *is an equitable defence, of which, after judgment at law, the defendant might avail himself in equity, of that defence he may take advantage in the foreign attachment, otherwise he would lose it intirely. Upon the whole case, I think the court below erred exceedingly, in considering Glassell the debtor of Towles, and decreeing against him the sum of 3639 dollars, or any sum in money.

CABELL, J.

I have given very great consideration to this case, and have found unusual difficulty in forming an opinion upon it. My mind is not, even now, free from doubts. But I fell constrained to yield my doubts, to the positive and unanimous convictions of the other judges. I concur in the decree which has been prepared.

BROOKE, J.

I concur in the decree, without doubt or difficulty.

TUCKER, P.

I have no doubt in this case, that the mistake on the part of Glassell was intirely an innocent one. No fraud, or intention to deceive, can fairly be imputed to .him. The parties in the cause have not imputed it, and their counsel have disavowed it. He had no motive for it. Anxious to sell his own land, it is inconceivable why he should have pointed out the land of another as the subject of the contract, unless he designed to consummate a gross fraud by conveying infe-riour land of his own at the price of that other. But this' he has not done. The error, indeed, was the obvious error of his son, arising, we cannot tell how, but committed on a visit to Kentucky anteriour to the treaty between the parties. It was an error too into which Towles fell, through his agent, and in which, strange to tell, Leathers and the surveyor also participated. In them it can only be accounted for by a want of the title papers, which the younger Towles omitted to take with him. Be this as it may, it was a common error in all concerned; and as the surveyor, and Leathers a near neighbour to the land, have *fallen into it, it' cannot be considered as a gross or blameable error in any of the contending parties.

The principle of equity applicable to such a transaction, is as plain and familiar as it is just and equitable. Where there is an error in the substance of the thing contracted for, so that the purchaser cannot get what he substantially bargained for, or the seller would be compelled to part with what he had no idea of selling, the contract ought to be vacated even if it had been executed. To say that one party shall be compelled to take what he had no idea of purchasing, or that the other shall be forced to part with what he had no idea of selling, would not be justice; it would be tyranny; it would be to make a contract rather than enforce one. Such a power is disavowed by the courts of justice; and, accordingly, the books abound with cases in which contracts have been rescinded, or their specific execution'refused, because of an essential mistake in the thing contracted for. Graham v. Hendren, 5 Munf. 185; Chamberlaine v. Marsh, 6 Id. 283; Calverley v. Williams, 1 Ves. jr. 210, and the general principles on this subject stated 2 Rand. 66. But this rule to be just must like all others be mutual. The privilege extended to one party cannot be denied to the other; for equality of rights is of the essence of justice. The rule must work both ways and' for both parties, where there has been no' fault or culpable negligence in either.

Such is the case here. An innocent mistake has been committed. Towles contracted to buy one half of a specified tract, of land. It was described by a plat, and though there was not a marked boundary upon it, yet the position of Deer creek upon it ascertains its identity beyond all controversy. It is true he was to buy half of the Mercer grant which Glassell owned. But the plat of Lewis’s land was shewn him as the true Mercer grant which Glassell owned; and as the land was the important matter whencesoever derived, the substance of his engagement was to take one half of ' that identical tract which had Deer creek upon 'x'it, and turns out to be Lewis’s land. It is true also, that the defendant Towles was very particular about the tract he should get; and it was. very truly said by Mr. Leigh, that the Lewis land was in fact what he expected to get, and we cannot make him take any other against his will.

What then are his rights growing out of this transaction? According to the authorities, he may say to Glassell, I will take the Lewis land or none at all; you must procure me that, or I will not execute the contract. Or, he may waive the right of rescission, and take what Glassell acknowledges he had agreed to give — the Mercer tract. Thus he has an election between these two courses; either to rescind, or to take what it is in Glassell’s power to convey.

How is it with Glassell? He has committed an innocent mistake. He has erroneously conceived the plat made in 1814 to-be the plat of his own land. We will suppose, for the sake of argument, that he has even conveyed it. He may invoke the aid of the principle above stated, and say to Towles — This contract has been entered into under a mutual misunderstanding, I will either convey to you what I innocently understood I was selling, or I will rescind, the contract.

Towles, would have a right to select which he pleased of these alternatives. But he would nave no right to rescind one half the contract, and enforce the other. I know of no middle ground between a rescission in toto and a specific execution in toto. I know of no power in this court, to half-ratify, and half-annul, this or any other contract. If the contract is intire; if the reciprocal transfers of the Madison and Kentucky land, are indissolubly linked in the agreement of the parties; I can see no justice in compelling Glassell to keep the Madison land and the Kentucky land too. If they be so linked, and Towles refuses to take the latter, he must take back the former, and refund what he had received.

Accordingly, Mr. Leigh having discerned, that this contest would mainly turn upon the character of the contract *in this regard, he has strenuously urged upon the court, to bear in mind that this was not the case of an exchange of Madison and Kentucky land, but of independent, though mutual sales, and that, therefore, the failure of the contract respecting1 the Kentucky land, could not affect the Madison tract, the contract for the sale of which was independent of it. To sustain this position, he referred among other things, to the right which Glassell reserved to himself, of retaining the Kentucky land upon a certain event. In reference to this argument in .support of his opinion, I shall only say, that at most the provision could only have given a right to disunite things which ■otherwise were linked together, and, moreover, that it never was introduced into the contract, until six weeks after the execution of the original articles: add to which, Glassell never exercised the power of disuniting the two subjects of the contract of August 1815. But, though I think Mr. Iveigh’s position is not sustained, yet it ■struck me so forcibly, that I have thought it all important to examine it with care, as constituting the very gist of this matter. And, upon the most deliberate reflection, I am intirely satisfied, that the mutual engagements between the parties, respecting the Madison and Kentucky lands, constitute one dependent contract, the parts of which are indissolubly connected and linked together, and not two separate and distinct sales, which stood so independent of each other, that one might be annulled without in any wise affecting the validity of the other.

That such is the case, the object of the parties, the nature of the contract, its very language, and the distinct admissions of Thomas and of Towles, conspire to prove. The object of each party was to dispose of his land. Towles wished to dispose of his Madison land, altogether for money if he could, but was willing to take western land in part, rather than fail. Glassell’s object was to convert his Kentucky property into Virginia property. The bill tells us, he was anxious to sell his Kentucky land, and to vest the proceeds in lands in Madison; and, in order to effect his ^wishes, he proposed trading with Towles; that Towles yielded to the influence of Glassell’s persuasions, concluded a contract with Glas-sell, by which he sold him the Madison land at 15 dollars 50 cents per acre, and agreed to receive, in part payment for it, a tract of Kentucky land at valuation. Towles tells us, that Glassell agreed to purchase his Madison land, upon condition that he would take 1000 acres of Kentucky land; that he did not wish to take it, but rather than not sell, he agreed to take it at a valuation : and that he did not believe Glassell would have purchased the Madison land, unless he had agreed to take the Kentucky land; at least, he said he would not. Here, then, the Kentucky land is to be taken by Towles in payment for that in Madison, and Glassell would only agree to take the Madison land, on condition that Towles would take 1000 acres of Kentucky land in payment. If, then, Towles is entitled to rescind the contract for the Kentucky land, because he cannot get the Bewis land, which was his object, Glassell is equally entitled to a rescission, if he cannot make payment in Kentucky land, which was his object.

The agreement in writing is as explicit as these representations of the parties. Towles agrees to sell to Glassell the Madison land at 15 dollars 50 cents per acre, to be paid in October 1816, when possession was to be given, “if there is any left after the agreements hereafter mentioned are complied with.” This agreement was, that Towles was to take 1000 acres of land on the waters of Green river &c. at a valuation, at eighteen months credit. That it was to be taken in payment is obvious, because from what went before, it appears the balance to be paid in cash was to depend upon the amount to be deducted on account of this payment in land. Now, it is not conceivable, either upon any principle of law or the ordinary sense of mankind in relation to affairs, that two things can be more inseparably connected, than the sale of a tract of land and the stipulation as to the mode of payment. Nothing is more common than that men are willing to purchase land, '^provided they are permitted to pay for it in property; and, moreover, instances must have occurred like this of Glassell’s, where a man has been willing to give a high price for Virginia lands, upon the other party agree-, ing to take payment in Kentucky lands. In such a contract, the disposition of the Kentucky land, is as much the substantive part of the contract with the owner, as the acquisition of any particular tract can be with the purchaser. To compel him to paj' money when he contracted to pay in land, would be as unreasonable and unjust, and as substantially making a new contract for the parties, as to compel the buyer to take a tract he did not agree to purchase. And the two things are inseparably connected, for the one is the consideration of the other.

If this view of the case be correct, then I think it will follow, inevitably, that Towles may have a rescission of the whole contract, but cannot refuse to receive the Kentucky land, and insist upon Glassell’s retaining the Madison land. In short, the rights of the parties stand thus: Towles may demand a rescission, or the Kentucky land at his pleasure; but, if he says he will not take the Kentucky land, Glassell will then have a right to resist any other terms than an intire rescission. He is, in no aspect, the debtor of Towles. He may well say, I owe you nothing: I engaged to pay you land which I am ready to pay, I did not promise to pay money and I will not pay it.

This election on the part of Towles, is essentially necessary to ascertain the character of his demand against Glassell, as I shall presently shew. But I will first observe, that the right of election may be vitally important to him. Exposed as he may be to Thomas’s demand, it is, perhaps, not so embarrassing, as that of Glassell might be, in case of rescission. For, in that event, he must refund what he has received in cash from Glassell for the Madison estate. It is true, in this case, he would get back the land, as the representative of the money refunded; but so also would it be on his refunding to Thomas.

*If this right of election then be vitally important to Towles, I think it may be safely affirmed, that he alone can exert it, so far as the rescinding of the contract would go. Far as the principle of substitution has been pushed (and with great benefit, by the way) I do not think it could extend to vest in Thomas the' right of deciding for him, that the whole contract should be rescinded. Having bought from him, indeed, his purchase from Glassell, I have no doubt he might assume to himself, on the principle of substitution, one branch of the alternative, and demand, that as the Lewis land cannot be conveyed to him, the Mercer tract shall. But he cannot go farther than even Towles — insist on Glassell retaining the Madison land, and paying up the value of the Lewis tract in money, when he was only bound to pay in land. This would be to rescind, in part only, this contract which I have shewn to be one and indivisible.

The view of the case which I have taken, if it be correct, at once settles the whole matter of the attachment remedy, on the ground of Glassell being the debtor to Towles for the value of the Lewis tract. There may, indeed, be sufficient ground of jurisdiction in the fact, that Glassell holds both the Madison and the Mercer tracts, in one of which Towles certainly has an interest; but there is, in my mind, no foundation for regarding him as subject to a money demand, and decreeing against him accordingly.

In the view which I have hitherto taken, I have had no eye to the execution of the deed from Glassell to Towles. It is upon the covenants in that deed, that the plaintiff’s claim has been principally rested. Towles has been supposed to have had an immediate right of action upon the covenant of seizin, of which right of action the plaintiff may avail himself, either upon the ground of the attachment law, or of a supposed equitable assignment of that covenant. These views of the rights of Thomas have led to a protracted discussion, in which the construction of the attachment law has been involved. I shall not follow the” steps of counsel herein. Admitting that Towles had a right of action, which was ^liable to attachment, yet I cannot doubt, that it was competent for Glassell, the garnishee, to defend himself by shewing that whether chargeable or not in a court of law, by the covenants in the deed-, he had a good equitable defence, in the fact that the very covenant on which his adversary rested his demand, if, indeed, it was an assurance of the Lewis tract, was founded in a mistake, against which it is the province of a court of equity to relieve, by arresting the demand and compelling Towles, either to accept a conveyance of the Mercer tract, or to rescind the contract in toto. The same answer presents itself, to the idea of the supposed equitable assignment to Thomas, implied by the transfer of the land to him; for the assignee could not resist the equity which would have prevailed against his vendor.

The covenant in the deed from Glassell to Towles, however, having constituted so large a subject of discussion, it may not be improper to examine the deed in which it is found. It seems to have been considered, on one part at least, as a deed for the Lewis tract, and the covenants and warranty as of course protecting the title to that land. I am by no means satisfied, that it is not either void for uncertainty, or a conveyance of the Mercer tract. The deed describes the land thereby conveyed, bjr reference to Ruby’s recent survey, and by the line trees, lines, courses and distances in that plat mentioned, and also as being one half of a 2000 acre survey number 1291, lying on Deer creek, patented to James Mercer on the 14th December 1787. No notice is taken of Deer creek running through the tract. I readily concede, that the lower tract in the plat of 1814, the same tract laid down in Ruby’s recent survey, was what the parties intended to convey: but it is equally clear, that they thought it was within the Mercer patent, when in fact it was Lewis’s. But a court of law could only look to the deed; and, in a court of law, if ejectment were brought for one half of the Mercer tract, the description of boundaries agreeing in no wise with the real boundaries of that land, would probably be rejected as surplusage. In every deed, *there are various matters of description, some more vital and characteristic than others. As if a man should sell the house he purchased from A. B. situate in F. street, whereas it is really situate in H. street; the fact that the house purchased by him of A. B. was situate in H. street would control the description of the deed as to its being in F. street, and the title would pass. So here, the Mercer tract of 2000 acres lying on Deer creek (for it lies very near to the main stream of the creek, and a branch of that passes through it) patented to James Mercer . on the 14th December 1787, is a known, ascertained, well identified tract. Of this tract, so described, 1155 acres are conveyed. Had the deed stopped here, there can be no question that it would have been a sufficient description of the tract to have passed a title to an undivided moiety. Nor do I think the subsequent description would probably be regarded. It would be rejected as surplusage, or proved to be erroneous, by shewing that the boundaries did not coincide with the boundaries of the patent land. Could the court of law permit the party to shew that it was a different tract of land, held under a different patent, that was intended to be conveyed? I doubt it. If, however, this evidence were permitted, then there would be two inconsistent, incongruous and conflicting descriptions, which would probably avoid the deed for uncertainty. In either event, the warranty and covenant of title would be ineffectual to secure the Lewis tract. For, if the deed conveyed the Mercer tract, the warranty, applied to that: if it was void, for uncertainty, the warranty and covenants were void also.

The aspect in which I have regarded this case, renders unnecessary a consideration of much that has been urged on both sides. The objections to requiring Towles to take the Mercer tract, which have been raised for him, but not by him, are all of them answered by the single remark, that he has his option to do either of two things; to take that tract, or rescind the contract. That he bought to sell again, and that the Mercer tract may not be saleable; that Thomas '^insists, as he perhaps is entitled to do, upon a rescission which will call upon Towles to refund the purchase money received, and that Glas-sell’s title to the Mercer tract, is not yet clearly made out; these are considerations, indeed, to be weighed by Towles, in making his option, but, surely, thej’ cannot add to his rights, or detract from Glassell’s. The inconvenience to him, cannot lead us to rescind the contract, so far as it is prejudicial to him, and to enforce it, where it may subserve his interests, though ruinous to his adversary.

Some inconvenience is inevitable, where a mistake so vital, and so long undiscovered, has tangled up a transaction. The conveyance to Thomas is the principle source of difficulty. Were he willing to take the Mercer tract at a fair valuation, according to the state of things in 1816, every difficulty would be removed; for the court sees none in the objections that were made to the title of Glassell to the Mercer tract.

The decree pronounced by the court, declared, that there was error in the decree of the court of chancery: that that court ought not to have considered Towles as the creditor of Glassell, and Thomas as entitled to attach in the hands of Glassell, the supposed debt due from him to Towles, the absent defendant: that, an innocent mistake having arisen in the transaction, not more chargeable upon Glassell than upon Towles, the defendant Towles had a right to waive the contract, or to accept the performance of it, as understood by Glassell; and, as Thomas was a purchaser from Towles, of the land which he had purchased from Glassell, Thomas was entitled to select one half of the Mercer tract of 2000 acres, granted to James Mercer by the patent of the 14th December 1787, and to have a conveyance thereof from Glassell, with general warranty and the usual covenants of title; and also to have a decree against Glassell for such sum as the tract so selected might, upon a proper proceeding instituted for that purpose, have been ascertained to be *inferiour in value (if at all) to the Lewis tract on the 31st October 1816, with interest thereon from that date till paid ; and upon rendering such decree, no costs should be awarded to either party: and that, in case of the refusal of Thomas to accept such a decree, within a reasonable time, to be fixed by the court, his bill should have been dismissed with costs, but without prejudice to any suit he might choose to prosecute against Towles. Therefore, the decree was reversed, with costs, and the cause remanded to the court of chancery to be proceeded in according to the principles here declared.

After this decree was announced, the counsel for the appellee reminded the court, that Glassell had not exhibited all the title papers, by which he deduced the title to the Mercer tract from the grantee to himself; and they suggested, that it might turn out, upon further inquiry, that he had really no better title to the Mercer tract than he had to the Lewis tract, in which case, surely, he would owe the absent defendant Towles a debt upon the breach of his covenants, that might well be attached in his hands, to satisfy the debt due from Towles to Thomas; and that provision ought to be made in the decree for this state of things, in case it should occur.

Sed per curiam. No alteration in the decree is necessary. The question of the validity of Glassell’s title to the Mercer tract, was not made in the cause. The record presents no reasonable doubt of its validity, even if it had been so made. The vendee contracted for the deed of Glassell with the usual covenants of title; and, although this court will not compel a vendee who has even thus contracted, to take a bad title, or one of questionable character, yet that fact must be properly established, before it can serve as the foundation of a decree. But, in truth, in this case, the court compels neither Towles nor Thomas to take the Mercer tract. Though, in considering the rights and remedies *of Thomas, the rights and remedies of Towles -were necessarily a subject of inquiry ; yet the court has rendered no decree as between Towles and Glassell, except that, if Thomas chooses to take the Mercer tract, he may do so on the terms prescribed; and that, indeed, incidentally, would put an end to the controversy between Towles arid Glassell. The court has only pronounced, that Glassell is liable to a rescission of the intire contract, or to a decree for conveyance of the Mercer tract, and to nothing more; that Thomas in right of Towles, may demand the latter, though Towles only can insist upon the former. Thomas, therefore, may refuse to take the Mercer tract, on account of his doubts about the title, or for any other cause; but if he does refuse, he has no title to any other redress in this suit, and his bill must then be dismissed. It is, however, obvious, that if the deed be made to him, and the title proves defective, a right of action upon the warranty and covenants of title, will at once accrue to him, and in that action the validity of title may fairly be put in issue and decided. It has not been so put in issue in this cause; and the court, therefore, cannot found its decree upon any supposed defect.  