
    John W. Bird vs. Laughlin McLaurin.
    Where a party buys land, and gives several notes for the payment of the purchase-money, and takes a bond for title, when the last note is paid, he cannot come into a court of'equity, and ask for a title, or' a rescission of the contract, without having- paid, or offered to pay, the whole of the purchase money.
    B. filed a bill, averring that he had purchased of McL. a tract of land, for which he had executed three notes, and taken a bond for title, to be made upon the payment of the last note ; that at the time of the purchase McL. assured him he could make a good title, and, relying upon that assurance, he made the purchase; that McL. could not make a good title, and was insolventthat he had been sued on the first note, and judgment had gone against him; that he had tried to defend himself at law, and failed. And prayed for an injunction for a specific performance of the contract, and if McL. could not make a good title, then for a rescission, &c.; held, that the bill shows no grounds of equitable relief, and moreover is premature.
    Appeal from the superior court of chancery.
    The pleadings are clearly stated in the opinion of the court. No evidence was adduced on behalf of the complainant. Accompanying the answer of the defendant, were various affidavits, proving substantially that at the time the bond for title was executed, the defendant informed the, complainant fully of the condition of the land; that the title was in the heirs of his father, six in number, jointly; that the defendant had offered the complainant a good title to four shares, and to give him a bond, with good security to - make him a title to the two re'maining shares, as soon as the two minor heirs became of age, upon the condition that the complainant would secure the purchase money, and that the defendant was solvent, and perfectly good for his liabilities. The Chancellor, on motion, dissolved the injunction with damages; and on final hearing dismissed the bill, and entered a decree in favor of the defendant for costs, from which decree the complainant prayed.an appeal to this court.
    
      
      Mitchell, for appellant.
    When the plaintiff purchased the land from the defendant, which was the consideration for the note upon which the judgment at law was recovered, as well as the other notes mentioned in the bill of complaint, the whole tract of land, and not a part, was the object of the plaintiff, or the contract would have been for the part only. And to make him take less than the whole he contracted for, would be making a contract for him ; whereby he would be compelled to take a contract made for him, to which he never would give his assent unless compelled so to do.
    The plaintiff says that he was induced “ to believe that the defendant could and would make him a good title to said land, or he would never have purchased it.” No one can doubt the truth of this allegation. It is in accordance with the common experience and practice of men. There is no sane man who would give a fair and full price, when he knew or believed he could not get a fair, full, and available title to land he was contracting for. And in a case like the one made out by the bill and answer in this case, if the parties had only entered into an article of agreement (without penalty,) evidencing precisely such a contract as the present, and the vendor should file his bill for a specific performance, no one can seriously believe that such a bill could be sustained. For the law is otherwise. Shall the vendor be placed in a better condition, when he has given his bond to make title to the vendee, and has taken his notes for the purchase-money 7 Surely not. The contract in either case is executory, and not executed.
    The defendant admits, by his answer, that he can make a good title only to a part of said land, and that a small part too ; his own share only. It is true he says that he can make, or procure to be made, a good title* to the shares of three of his sisters, viz., Ann, Catherine, and Margaret. If he can do so, why did he not procure their deeds, and exhibit them with his answer, that the court might judge of their validity ? This he did not do. The law will not be satisfied with an allegation in an answer that the vendor can make a good title, unless he exhibits the same, so that the court may inspect it, and pronounce upon its validity, and not leave it to the mere declaration of the vendor.
    “ But,” says the defendant, “ I cannot now make good title to the portions of my other sisters, Effie and Mary, for they are under age, but I will give you bond security for title, when they come of age.” “ I want the land,” says the plaintiff, “ and not bonds. They refuse to convey, and you cannot compel them. The land may rise greatly in value, and it may be greatly to their interest to refuse to make titles; and then I must resort to my bonds for indemnity, instead of my land, and you and your security may be dead, or insolvent, or both.” This short dialogue shows a great difference in buying bonds and land. And I deny the right of any court on earth to make a man take bonds, though never so well secured, instead of land; and in these times of voluntary and involuntary bankruptcy and repudiation, a bond is scarcely worth the paper it is written upon. The vendee is entitled to the land shown and sold him. If a man buy bread, you will not compel him to take a stone; and if he buy a fish, you will not compel him to take a serpent.
    A man may elect to take a less quantity of land than what he purchased, and have a deduction in the price proportionate to the deficiency in quantity and quality. And sometimes the courts will decree a specific performance, when the quantity of land deficient will not materially change the contract, or affect the value of the whole. But there is no instance where a court, respectable for talents and integrity, have compelled a specific performance of a contract like the one under investigation. And how the Chancellor came to make a decree of dismissal of the bill in this case, is matter of astonishment to me, for he is certainly a clear-heacled and sound jurist. But it may be accounted for on the maxim, “ that when a great man errs, his errors are only the more obvious.” Here no chain of title, or deeds of conveyance, are exhibited with the answer, so that the court might judge of their validity'; but the Chancellor has taken the naked assertion of Che defendant, that he could make good titles, and that he had tendered such to the plaintiff. If that were true, why not present his deeds with the answer, as required by law ?
    Were it competent for the court to set up the pretended parol enlargement or alteration of the contract in writing, (all made at the same time,) yet the allegations of the defendant upon that head, is wholly unsupported by proof, and it being new matter brought in by the answer, must he supported by proof. These things called affidavits, taken by the defendant without notice, (for it was not competent for the deputy sheriff of Smith county to serve a notice in the county of Simpson ; and so sensible was the defendant of that, he procured Adams, the deputy sheriff of Smith county, to make affidavit of actual service of notice, before John G. Blackwell, clerk of the circuit court, as such, adding folly to fault,), all such affidavits, taken before the said John G. Blackwell, clerk, as aforesaid, are no evidence, more than the leaves of Dilworth’s spelling-book. Therefore the allegations on this head, made by the defendant, are unsupported by proof.
    The plaintiff states that it was important to the value of said land, that the four-eighths of land should not be separated. And to this defendant makes no response. But suppose those sisters of the defendant — I mean any or all of them — should refuse to convey their shares, and ask for a division ; where are the parts to be laid off? to include the improvement^, or not, that have been or may be made by the plaintiff ? and thereby ruin him, as well against law and justice as against equity and good conscience.
    
      V. E. and B. D. Howard, for appellee.
    The decree of the Chancellor must be confirmed, because it appears that the vendee was fully aware of the condition of the title at the time of the purchase, and expressly took the risks of it. Such being the case, he cannot go into equity and enjoin the collection of the purchase money. 5 Howard, 279; 3 A. K. Marsh, 288 ; 13 Serg. & R. 386; 2 Wheat. 13; 5 Serg. & R. 204; Sugden on Vendors, (Library'Ed.) 628, and authorities there cited; lb. 507.
    
      There is no averment in the bill that the complainant tendered the purchase money and demanded title.
    
      Hughes, in reply.
    It-is insisted that the court erred in dismissing the bill, and in dissolving the injunction. The last note which was given for the purchase money of the land sold by McLauren to Bird was due on the 1st day of January, 1840, and the defendant, in his answer, filed 1st of June, 1840, after this last note fell due, insists that he was not to make title until the last note fell due, and then, because he could not convey the share of the infant heirs, that he should only convey the share of himself and two of the heirs then, and give his bond with surety to receive the title of the minor heirs, and this he insists upon was the agreement, and to sustain the averment nothing is offered in the way of proof. He admits that .a bond was given for title, and by one of his witnesses he proves that the title was to be made when the last note was due. But he has proved no such agreement as that in court. How then does it stand 1 That Bird knew of the defect of title, and agreed to take a bond for title, but he did not’agree to pay “unless at the time agreed upon, a good title could be conveyed. The allegation as to security for the title of the minor heirs is mere affimative matter not responsive to the bill, and unless sustained by the proof, is not evidence.
    The general rule then applies, that complainant will not be bound to pay the purchase money, unless he can get a good title.
    The proof as to the making a deed and giving bond as to the title, applies to 1838 instead of 1840, the period to which it should have been applied.
    The time at which the agreement, by the defendant’s own showing, was to be executed, to wit, the 1st January, 1840, has passed, and no offer to perform or averment of readiness. The agreement therefore should be rescinded, and the decree of the the Chancellor reversed.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

It appears, by the bill of the complainant, that he entered into a contract with the respondent for the purchase of four eighths of land, for the sum of $1600, and executed his three several promissory notes, bearing date the 10th of February, 1837, for equal amounts, payable on the 1st of January, 1838, 1839 and 1840, taking the respondent’s bond for title. That the respondent represented that he could make a good title, in which promises complainant confided. The bill also charges that the land had been purchased by the father of the respondent, who had died previous to the date of the contract, leaving six heirs, the respondent being one, in whom the legal title vested, and that it is important to the value of the tract of land, that it should not be divided. That suit had been brought on the first note, and judgment recovered, although complainant attempted to defend himself at law. There is also a charge of insolvency, and the prayer is for an injunction as to the judgment, and for a specific performance, or in case the respondent is unable to make title, then for a rescission of the contract. The bond, which is an exhibit, is conditioned to .make title when the last payment shall be made.

The answer admits the contract, and that the land was owned by the heirs of his father. Denies that respondent represented that he could make a good title, but insists that he told the complainant the true situation of the title, and that at the time of sale, in consequence of the condition of the title, it was agreed, that, as respondent could not by the time of the last payment, get the title of the minor heirs, that he might then make him a title for four shares, and give a bond with good security for the title of the other shares, when the heirs should come of age, and avers an offer to do so. He avers an offer to make title to four shares, on payment of the money. Denies the charge of insolvency, which denial is proved.

It is not necessary to say anything about the additional agreement set up in the answer. The complainant does not show himself to be entitled to the relief of a court of equity. He does not aver an ignorance of the condition, and if he had, it is fully proven by a witness, who was present at the time the contract was made, that before the bond was delivered, and before the notes were given, that McLaurin stated fully to the complainant the condition of the title. He was therefore a purchaser with full notice. But furthermore his application was premature. The condition of the bond was to make titte when the last payment should be made, but he applies for relief before he makes the first payment, and does not even make an offer of payment. In a case very similar' to this, decided by the Chancellor, he held that a party who comes into a court of chancery to rescind his contract, upon the ground of the defendant’s inability to comply with his part of such contract, must put his adversary in the wrong, and as the bond in that case was, as it is in this, conditioned to make title when the last payment was made, he held very rightly that the respondent was not bound to make a deed until the last payment was made, and refused to give relief. Mitchell v. Sherman, 1 Freeman’s R. 120. A similar doctrine was held by this court in the case of Lewis v. Woods, 4 Howard, 86, and in 7 Ib. 167. That the time for the last payment has elapsed makes no difference. The bill was filed in 1839, when it had not elapsed. The complainant shows no offer or. readiness to perform his contract, and until he does so, he is not to be heard to urge the inability of the other party to perform.

The decree of the Chancellor must be affirmed.  