
    William Vick vs. Thomas G. Percy et al.
    In cases free from fraud, á purchaser of land who is in possession, cannot have relief in chancery against his contract to pay, on the mere ground of a defect of title, without a previous eviction.
    A vendee, in possession under a deed with warranty, with no fraud made manifest, and with nothing to show that the vendor is not able to pay any damages that may be recovered against him, has no right to call his vendor into a court of equity to litigate an adverse legal title; he must rely on his covenants, if he should be evicted.
    On appeal from the superior court of chancery ; Hon. Robert H. Buckner, chancellor.
    William Vick states, in his bill, that in the year 1838, he purchased of one Thomas G. Percy, then of the state of Alabama, a tract of land in Bolivar county, known as the 4th section of township No. 21, of range No. 8 west, containing 812 acres, and in payment gave him 480 acres of land in Washington county, valued at fifteen dollars per acre, and three notes of six thousand dollars each, payable in one, two, and three years from date; that he received a deed, and made a deed of trust on said 4th section to secure the payment of the notes. That the wife of Percy being then in Alabama, he gave his penal bond in ten thousand dollars to procure her relinquishment of dower, which he had failed to do. That Percy was dead, and his estate insolvent, or so nearly so as to be unable to pay the bond. That after he had paid the first of the notes he discovered that Percy had no title to said section, though he represented to complainant that he had a good and perfect title. That the same had been sold, prior to the sale by Percy, as government land, and purchased by Walker and Bernard, to whom a patent had been since issued, and that after the sale by Percy, the land had been sold by the sheriff of Bolivar county as the land of Walker (to whom Bernard had sold his interest,) and purchased by one 
      W. C. Damoss. That Percy had died, and that his wife, combining with the trustee, had induced him to advertise the land; the bill prayed for an injunction and rescission of the contract.
    . Maria Percy, widow and executrix of Thomas C4. Percy, and Charles B. Percy, and John W. Percy, adult heirs of Thomas G. Percy, answer: —
    They admit the contract for the purchase of the 4th section by Vick of Percy, and the mode and time of payment, therefor, as stated in the bill. Mrs. Percy renounces and disclaims all right of dower in said 4th section, and files and tenders to the complainant a duly certified deed for her dower therein. The defendants deny the insolvency of the estate of Percy, and aver it is most ample and sufficient to discharge every demand that can come against it, and leave a large residuum for his representatives. That before the sale by Percy to Vick, every fact and circumstance relating to and in any manner connected with the title of said Percy, and the color of title of said Walker, or of Walker and Bernard, was .fully made known to the complainant by Percy, and by complainant understood; that it was distinctly agreed and stipulated between them, that the complainant should not, at any time, set up the color of title of Walker as a reason for delaying the payment of said notes; that, as complainant was then fully satisfied with the title of Percy, after being informed of all the facts, the writings should be so drawn as to preclude the complainant from setting up Walker’s pretence of title as a means of delay or ground of defence, and that the attorney applied to on that occasion, a Mr. Blanchard, of Vicksburg, being of the opinion that the complainant would be thus precluded by inserting in the notes “without plea or defalcation,” they were drawn and executed in that peculiar phraseology for that purpose. They admit that Percy represented his title as good and perfect. He entertained that opinion and acted on it, in this contract in good faith and rightfully. They then set out his title, viz.:
    An act of congress of the 29th of May, 1830, entitled “ an act for the relief of the heirs of Col. John Ellis, deceased,” which permitted them to enter, without the payment of any consideration therefor, one section of the public land according to the surveys theretofore made, in the state of Mississippi, and that a patent should issue to them therefor by the proper authority, provided that previous to the issuance of said patent they should file with the commissioner of the general land-office a deed, relinquishing to the United States all claim to a tract of land of like quantity, for which a certificate had been issued to their ancestor on the 18th day of September, 1815, by the commissioners under the act confirming claims to land in the Mississippi territory. Under this act the said 4th section, being one entire section according to the public surveys made before the passage of the act, was duly entered, and the deed of relinquishment being made, the patent issued therefor on the 9th day of May, in the year 1833. The heirs of Col. Ellis were Thomas G. Ellis and Mary Jane Ellis, the latter of whom intermarried with Rene La Roche, of Philadelphia. The land was sold by them to Percy, and the conveyance on the part of La Roche and wife was made for them by Nathaniel A. Ware, by virtue of a power of attorney duly recorded in Adams county; the land having fallen to them upon a division of the estate of Col. Ellis.
    That Long, after the said patent had issued to Walker, by means unknown to the defendants, procured the register of public lands at Chocchuma, to expose said section to sale as lands of the United States, and at said sale Walker, or Walker and Bernard, became the purchaser or purchasers thereof, with knowledge that the same land had been previously entered by the heirs of Ellis, under the act of congress. A patent was issued to him or to them, after delay, in 1836.
    That both claims were fully made known to, and were distinctly understood by complainant before his purchase, and that complainant, with such knowledge, made the purchase, received the deed of Percy, entered upon and took possession of the land, and has thence hitherto fully enjoyed the same. They admit the sale of the land by the sheriff, and its purchase by Demoss. And after stating their inability to take any step to quiet the complainant’s title, they conclude by denying there is any equity in his bill, and praying dissolution of injunction, Sec.
    
    Pending a motion for a dissolution of the injunction, the complainant, on affidavit, filed an amended bill. It states, in substance, that while complainant and Percy were in treaty about the purchase of said 4th section, Percy represented his title to be perfect and complete; that he claimed under the heirs of Col. Ellis, to whom a patent had issued, after the performance on their part of every stipulation required by the act, and they exhibit a letter from Percy to prove this. In this letter Percy says: “ I am in receipt of your letter of the 5th instant containing an offer for the 4th section. I accede to your proposition with one exception. I am unwilling to make a warrantee deed, but will convey to you my title as it stands. I am willing to give you what is called a quit-claim; warranting you against the heirs of Ellis, and all claiming under them. My determination not to warrant against the title of Walker and Bernard, arises from no diffidence I entertain of the success of my title,’ •which I esteem to be as complete as any the government of the United States ever made; but because I shall be unwilling, after parting with all interest in the land, to be plagued with any action they may choose to institute. On this account only I agree to take your price, which I consider low.” Percy then states briefly the facts constituting his title, and then argues the question of its validity, and adds, “It is unnecessary to argue this question; I have the fullest' confidence in the absolute validity of the title I offer you; but if you take it, you must take it as I have it.” That complainant relied on these representations, and made no examination into the title. That he now finds they were false and untrue, and that Percy had no title, or if any, only to half, and that subject to dower of Ellis’s wife, and that the other half belongs to La Roche and wife. That Percy’s title to them was acquired from N. A. Ware, who conveyed by power of attorney. That the representations of Percy were false in these particulars :
    1. The heirs of Ellis were only authorized to enter 640 acres. They actually entered 812 acres.
    
      2. They were only authorized to enter land surveyed previous to the passage of the act; but they entered the 4th section, which was not surveyed until after its passage.
    3. They could only enter such lands as were subject to private entry: instead of which they entered the 4th section, which was not subject to private entry, not having been then offered for sale. The complainant hies the certificate of the register at Washington, in Adams county, to prove that the heirs of Ellis were only to enter 640 acres.
    The amended bill denies that the heirs of Ellis executed such relinquishment as the act of congress required; that in consequence thereof the patent is void, and passed no title to the 4th section to them. That the representations of Percy as to his title are false and untrue,' and fraudulent in law, and misled and deceived complainant. That the title to said 4th section is now in said R. J. Walker,, and that Percy, at the time of said representations, knew all the facts. That there was never any consideration, and if any, it has wholly failed. And that if complainant had known the facts, or if Percy had truly disclosed them, he would not have purchased the land.
    The answer of the same defendants to the amended bill, states: That they have little or no personal knowledge of the affairs of said Percy, and especially of this contract, which was completed at a distance of four hundred miles from their residence, and therefore, in their former and present answers, they relied and do rely upon information. The facts in the original answer being chieñy derived from N. A. Ware, to whom they supposed the facts were familiar. They admit the genuineness of the letter of Percy, but they deny that it sustains the allegations of complainant, and aver that it shows his opinion only of his title and his refusal to warrant. They admit that he said he claimed under the heirs of Ellis, to whom a patent had issued under the act of the 29th of May, 1830, after the performance, on their part, of every stipulation required in the act; and this representation, if material, they believe was true in fact and in law. They state, that in the year 1831, N. A. Ware, as agent for the heirs of Ellis, and who had intermarried with their mother, opened a correspondence on the subject of this grant with the commissioner of the general land-office, requesting his instructions to the register of the land office, at Mount Salus, Mississippi, and that the commissioner addressed him a letter dated 27th August, 1831, in which, after referring to the act of congress, he says, “ the decision of this office is, that the section to be located must be situated in a township surveyed at the time of the passage of the act,” and after stating that they had in view the location of a particular section, “ requests the register to respect the location made by their agent.” In answer, the register says, “ the heirs of Ellis have made choice of section 4, T. 8, R. 8 west.” The defendants file an original letter from Samuel Gwin to Ware, in which he says, on looking on the map, “I see this section is marked in pencil, ‘ Reserved for the heirs of Ellis,’ ” and adds, “all I have to do, is to reserve the section from sale.” That La Roche and wife and T. M. Ellis, in writing, accepted the location.
    That on the 25th day of January, 1832, Mr. Samuel Gwin, register, wrote to the commissioner of the general land-office as follows : “ It. appears, by the letters on file, that Mr. William B. Cook has selected the 4th section of 21 Town, of R. 8, west, for the heirs of Ellis, and that the former register has marked it as reserved for the heirs of Ellis, on the map. It only remains for me to say, that this township was surveyed previous to the passage of the above act, and that upon its selection it was reserved from sale, and is still withheld.” And that nothing further in his (Gwin’s) opinion was then required but the relinquishment of the heirs of Ellis.
    Respondents aver that previous to the issuance of the patent, such relinquishment as the commissioner of the general land-office required, was executed and filed with him by the heirs of Ellis, in pursuance of said act of congress, and that thereupon on the 9th day of May, in the year 1833/a patent, in due form of law, reciting a full compliance on the part of the heirs of Ellis with the act of congress of 29th of May, 1830, was duly issued to said heirs by name, for said 4th section of T. 21, R. 8, west. The original patent is filed.
    
      .That according to the act of congress the heirs of Ellis were permitted to enter, without the payment of any consideration therefor, one section of the public land according to the surveys (then) hitherto made in the state of Mississippi, and that the entry of said 4th section was in strict conformity to the grant, which specifies no number of acres, and only restricts the entry to one section of the public land, according to the surveys previously made.
    They deny that said 4th section was surveyed after the passage of the act.
    They admit that the heirs of Ellis were Thomas G. Ellis and Mary La Roche, formerly Mary Ellis, and that Percy held said .lands under a deed executed by N. A. Ware, as their agent, by virtue of a power of attorney, and from Thomas G. Ellis, and that complainant’s exhibit is a true copy thereof; and that when the same was made La Roche and wife were citizens and residents of Pennsylvania; but they say that when said deed was executed, said Ware had also a general and comprehensive power of attorney from them, authorizing him to sell any real estate they owned in the state of Mississippi; and they file a copy.
    They state that Percy was the brother-in-law of said Ware, and uncle to the heirs of Ellis, who were the children of his sister, and that unlimited confidence and trust existed between the parties. That Percy was not acquainted with the forms of the laws of the state of Mississippi, respecting the authentication of deeds, &c., and that previous to the execution of the deed of March, 1834, Ware assured him his power to convey was regular and ample, as, under it, he had sold other lands of La Roche .and wife to very particular men and competent judges, governor Poindexter among them, without objection. Percy, relying on these statements, ratified the contract, with a full belief that he thereby acquired a full and complete title, and they believed that during his lifetime nothing was ever suggested to induce him to distrust its validity, so far as the heirs of Ellis were concerned. Had such been the case he could, at any' time within sixty days, have remedied all imperfections, and would have done so .had he suspected the existence of any. They aver that they never heard the regularity, completeness and validity of the title from the heirs of Ellis to said 4th section, questioned, in the remotest degree, from any quarter, until the application to file thq supplemental bill of complaint; since which time, to vindicate the good faith of said Percy and his vendors, and without taking it upon themselves to pass upon the sufficiency of said conveyances, they have obtained from said Rene La Roche and wife a conveyance in fee simple for said 4th section, to complainant, duly acknowledged and certified, which they file and tender to complainant, and avow their readiness to cause to be made to him such other and further assurance of title as the court may direct.
    They admit the death of Ellis, and the marriage of his widow with Charles G. Dahlgren. They do not know whether said Percy was informed that she had a dower interest in said land, and, never having heard him say anything on the subject, suppose his attention had never been directed to it. They have obtained and file a deed from said Dahlgren and Mary M. his wife to said complainant for the dower interest of said Mary M. in and to said 4th section, duly acknowledged and certified.
    They say that Percy made no untrue, or false, or fraudulent. representation, nor did he mislead or deceive the complainant in any manner, nor represent said title to be otherwise than in good faith and honesty he believed it to be.
    They say that on the 12th day of November, 1833, more than six months after the emanation of the patent to the heirs of Ellis, the register and receiver of the land-office at Chocchuma offered said 4th section at public sale, and reported the same to the commissioner of the general land-office. That officer, in reply, recites the entry by the heirs of Ellis and the issuance of the patent to them, and says he has received a protest against their right from Mr. Walker; and after stating the facts, informs them they did wrong in making the sale, and says the purchaser can get his money back, &c. That since their former answer, they have found, among the papers of said Percy, three letters from complainant to him, which they file as exhibits, and from which the following are extracts:
    
      Extract from the first letter, dated March 16, 1837.
    “ I wrote to you some time since relative to the 4th section of land near my plantation on Lake Bolivar, and directed it to Princeton; but receiving no answer I suppose you were not there.
    
      “ The object of my letter was to ascertain whether you were disposed to sell it; and to learn the situation of the title,” &c.
    Extract from the second letter, dated May 12, 1837.
    “ Your favor of the 20th of April came safely to hand, and would have been answered ere this, but I wished to obtain some information relative to the course Messrs. Walker and Bernard intended to pursue. I saw Mr. Bernard, who appears very confident that his claim will prove successful.' I do not think it will, but I had no idea of purchasing your claim without a warranty, particularly when I offered you the full worth of the land with a perfect title, and I was very much surprised when I received your last, to find that you intended only to convey to me your quit-claim.
    “ I would have, even with a warrantee title, to run some risk in buying it, because I never would, in case I lost it, be fully compensated for clearing the land.”
    Extract from the third letter, dated July 16,1837.
    £tI want this land, and am disposed to give you more than I think it worth to any one else. I will give you my land near Worthington’s, and $ 18,000, payable in three annual instal-ments ; the first payable twelve months after the first day of January next; with a distinct understanding that Walker and Bernard’s title shall not prevent the payments. This is the best I can possibly do; all my friends think it entirely too high, and that I am very foolish to make the offer, but I want the land and am willing to give a high price. If you are disposed to take this, you will please write me; and upon your acceptance you may consider it a trade; and your refusal will put an end to our treaty. Walker and Bernard have obtained a patent for it, and are very sanguine of success; but I think you will get it; enough on this subject.”
    That Percy, in his lifetime, instituted suits on the notes, in the circuit court of the United States, at Jackson, and recovered judgment, and they file a certified transcript of the record thereof, and plead and rely upon it, as conclusive.
    The chancellor on this state of the pleadings, no proof being taken by either party, dissolved the injunction; and the complainant appealed.
    
      J. S. and G. S. Yerger, for appellant.
    1. A misrepresentation of the vendor in relation to the title of land, by which the purchaser is deceived, is fraudulent, whether the vendor knew it to be false or not. Smith v. Richard, 13 Peters’s R. 26; Boyer's Ex'r.v. Grundy, 3 Peters’s R. 210; Donelson v. Heakly, 3 Yerger’s R. 178 ; Parham v. Randolph, 4 Howard’s R. 435; McMurran v. Sana, 4 Howard’s R. 160. 2. If there be fraud in the sale, it dispenses with the necessity of an eviction. Parham v. Randolph, 4 Howard’s R. 435.
    The representation made by Percy as to the title to the lands sold to Vick, and whilst he and Vick were in treaty therefor; was untrue in two particulars. 1. In the representation “ that Ellis’s heirs had, before the issuance of the patent to them, complied' with every stipulation required of them by the act of congress,” under which they claim.
    2. In the representation “ that he, Percy, had a good and complete title to the land,” even admitting the title to have once been in Ellis’s heirs. 12 Wheaton’s R. 586; 2 Laws relating to Public Lands, No. 876, p. 870; 19 Louisiana R. 334, 340; 4 Laws U. S. 456 ; 8 Ib. U. S. 365; How & Hutch. Rev. 346, sect. 13, 15; 4 Bibb’s R. 516, 521, 526;. I Marsh. 357; 5 Litt. 317; 5 Binny, 296; 15 Serg. & R.. 71; 14 lb. 84; 7 lb. 43; 1 Peters’s R. 109, 328; 12 lb. 345;. 5 Mass. R. 67; 1 Hill’s N. Y. R. 121; 2 lb. 240; 17 Wend. 119; 2 Lomax Dig. 18, 350, 354; 2 Dev. N. C. R. 306;-3 lb. 317; 41b. 514; 2 Hay. 410; 1 Dev. fc'Batt. 34,328, 582; 4 lb. 51; l Dev. Eq. R. 500; 1 Dev. & Batt. Eq. R. 359; 3 Harris &McH. R. 430; 2 lb. 19, 38; 1 lb. 322 ; 2 Laws relating to Public Lands, No. 30, p. 39; 2 Cranch’s R. 87; 13; Peter’s R. 498; 5 Wheat. R. 293 ; 3 Peters’s Cond. R. 286; 4 lb. 650; 13 Peters’s R. 84, 85 ; 12 lb. 476 ; 19 Louisiana R. 334, 339, 510; 2 Howard’s S. Court Rep. 284.
    3. Percy had not a good and complete “ title ” to the land when he sold to the complainant, and has not yet acquired it; nor can he now acquire it from the heirs of Ellis, under whom he claims, so as to defeat Tick’s equity. How. & Hutch. Rev. 347, sec. 19; 2 Kent’s Com. (4th ed.) 154; Sumner v. Conant, 10 Yermont R. 1; Lawes v. McKean, 3 Shepley’s Maine R. 304; 5 Day’s R. 492; 7 Mass. R. 14; 1 Munroe’s R. 48: 2 Bibb’s R. 424.
    4. The contract having been procured by fraud, a court of equity will not permit Percy or his representatives to procure the title and defeat Tick’s right to a rescission of the contract. Davidson v. Moss, 5 How. R. 673.
    5. It is insisted, however, that Robert J. Walker having purchased from the United States, after the entry of Ellis’s heirs, is estopped to set up his title; that the United States were estopped by the patent to Ellis’s heirs.
    This position is not sustainable. Estoppel does not apply to the government, and if it did it could only grow out of a valid act, and could not arise out of an act absolutely void. 4 Hawk. R. 116; 3 Litt. R. 482 ; 5 Mason’s R. 425 ; 3 Dev. & Bat. 407.
    6. It is further insisted that the judgment in the circuit court of the United States for the southern district of Mississippi is a bar to the relief sought in this proceeding. It cannot be so, because, first, the record in that case shows that the court refused to hear the complainant’s defence; second, the trial was after the commencement of this suit in this court, and after jurisdiction had attached; third, the judgment was only on a part of the demands growing out of this transaction; fourth, this suit is for a rescission of the whole contract, and cancellation of all the notes and deeds, and cannot be affected by that suit.
    
      C. R. Clifton, for appellees. »
    1. It is a well-settled rule, even if the title were defective, that the appellant would have no right to be relieved against the payment of the purchase-money, merely on that ground, so long as his possession remains undisturbed. Miller v. Long, 3 Marsh. 335 ; lb. 288 ; 3 J. J. Marsh. 583, 701; 1 Johns. Ch. R. 217, 218; 2 lb. 519; 5 Serg. & Rawl. 204; 13 lb. 386 ; 5 Litt. 229; 2 Wheat. 13; 5 How. 279, 387.
    Cases in which fraud has been practised form an exception to this rule, and fraud is charged here; it is to be inferred, for that reason only, since an examination of the facts demonstrates that it does not exist. The proof shows that Vick made a proposition to Percy for the land, to which Percy acceded, with one exception — he would not warrant the title. After saying this, he discloses frankly what he supposes the title to be. For the truth of these facts he cannot be held responsible, because a refusal to warrant the title is a refusal to warrant the truth of the facts of which it is supposed to consist; and though he argues the title afterwards, he says it is unnecessary to do so, for he will not warrant it. If Vick takes it, he must take it as he, Percy, has it. After closing the negotiation, Vick renews his proposition, and says he will take the land with “ a distinct understanding that Walker and Bernard’s title shall not prevent the payments.”
    2. The bill seeks a rescission of the contract. The rule in such cases is, to inquire at the hearing, whether the seller can make a good title, and not whether he did or could make such title at the date of the contract; and no case can be found where a rescission has been decreed in favor of a purchaser, who hadheld undisturbed possession of the land from the date of the contract, if his vendor could then make a perfect title. Langford v. Pitts, 2 P. Wms. 629 ; Wynn v. Morgan, 7 Ves. 202; 5 Cranch, 562; 1 Wheat. 179; Newl. 238, 239.
    The title in this case being now complete, and there being no eviction, no fraud, no injury, the appellant is entitled to no relief.'
    3. In answer to the positions assumed by appellant, Mr. Clifton argued at length, and cited the following authorities: Wilcox v. Jackson, 13 Pet. 498; Newsom v. Prior, 7 Wheat. 7; Fulton v. McAfee, 7 How. 762; Miller v. Long, 3 Marsh. 335; Ib. 288; 3 J. J. Marsh. 583, 701; 1 Johns. Ch. R. 217, 218; 2 Ib. 519; 5 Serg. & Rawle, 204; 13 Ib. 386; 5 Litt. 229; 2 Wheat. 13; 5 How. 279 ; Ib. 387; 3 Pet. 210 ; Parham v. Ra?i-dolph, 4 How. 435 ; Moss v. Davidson, 1 S. & M. 128.
   Mr. Justice Clayton

delivered the opinion of the- court.

This was a bill filed by the appellant in the superior court of chancery, to enjoin the sale of certain property under a deed of trust executed to secure the payment of a debt created by the purchase of a tract of land, and to rescind the contract of purchase on the ground of defect of title of the vendor. The land had been conveyed by deed with general warranty of title, and there had been no eviction. The bill charges fraud in the concealment of the defects in the title, and also alleges the insolvency of the vendor’s estate.

The answer denies the charge of fraud and concealment, and makes exhibit of a correspondence between the complainant and the vendor, in which the alleged defects are adverted to and canvassed. This was previous to the purchase. The correspondence bears marks of candor and fair dealing upon its face, the objections to the title are made the subject' of discussion, and the opinion confidently expressed that the title is good. The charge of insolvency is also denied, and the fact asserted-that the estate of the vendor is worth $50,000, after payment of all its liabilities. No proof was taken, and the complainant has not been evicted, or disturbed in his possession.

The principle is fully established, that in cases free from fraud, a purchaser of land who is in possession, cannot have relief in chancery against his contract to pay, on the mere ground of a defect of title, without a previous eviction. Anderson v. Lincoln, 5 How. 284; Abbott v. Allen, 2 Johns. Ch. 519.

The only two grounds alleged for the interposition of equity, are fraud and insolvency of the defendant. These are denied by the answer, and there is no proof to establish either. The complainant being in possession under a deed with warranty, with no fraud made manifest, and with nothing to show that the covenantor is not able to pay any damages that may be recovered against him, has no right to call his vendor into a court of equity to litigate an adverse legal title. He must rely on his covenants, if he should be evicted.

The order dissolving the injunction is correct, and the same is hereby affirmed.  