
    William F. Walker vs. Samuel Gilbert and others.
    Possession of real estate is notice of the title of the possessor; and if he be in possession under an unrecorded deed, the property will not be subject to judgments against his vendor, rendered since the execution of the deed.
    It seems that it is improper to allow a supplemental bill which contains nothing that was not fully known to the complainant at the time he filed his original bill; but if such a supplement he filed, and be not objected to in the court below, and the chancellor entertain jurisdiction of it, the objection will not prevail in this court.
    If a purchaser of real estate has protected himself by covenants, he is not entitled to be relieved from his contract, if it be unmixed with fraud, until after eviction.
    Fraud vacates all contracts, and whenever it is charged, must be answered; yet if the fraud be charged in a case which will not justify the rescission of the contract, or in a case in which the court cannot give relief, it need not be answered.
    Where E. sold a tract of land to P., representing that the title was unincum-bered, though at the time it was largely incumbered, and P. gave a note to E. for the purchase-money, with W. as his surety; and the assignee of E. sued P. and W. at law upon the note, and obtained judgment; and W. filed a bill in chancery to enjoin the judgment at law, on the ground of the fraud committed by E. on P. in the sale of the property, and did not make P. a party to the bill, and P. did not complain of the judgment at law ; held, that W. was not entitled to be relieved therefrom.
    Whether a surety can ever avail himself of a defect in the contract of his principal, — Qucsre?
    
    The interpretation of the chancellor of the rules of his court, are a safe precedent for this court; and where, notwithstanding a rule of practice that no motion to discharge an injunction on the face of the bill, would be received, yet, if the chancellor entertain such motion, it will be considered that the chancellor considered the rule inapplicable to the case; and it seems that such a rule ought not to apply to a case where no decree could be made, if the facts were admitted.
    On appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    
      The bill in this case, filed by William F. Walker, as sole complainant, charges that on the 23d of November, 1840, Samuel Gilbert and others, partners under the style of Gilbert, Bailey and Draper, who were the sole defendants, obtained judgment by default against the complainant, in the circuit court of Madison county, as surety for George R. Fall and Samuel M. Puckett, against whom also judgment was rendered for about $900; that an execution had been levied on his property; that he had no notice of the suit until the execution was levied that the writ was not personally served; that the judgment was founded on a note made by Fall and Puckett, as principals, and complainant as surety, given for a lot in the town of Madison-ville, purchased by Fall & Puckett, from Enloe, Johnson &Co. who executed a deed to Puckett alone; that Enloe, Johnson, & Go. bought of Burroughs, who bought of Williams &• Walker, who purchased of John S. Gooch, on the 11th of January, 1836; that the deed from Gooch was not proved or acknowledged, and recorded according to law ; and a judgment was rendered on the 22d day of October, 1836, against Gooch & Williams, in favor of 0. Marsh & Co. under which the lot of ground was sold in August, A. D. 1840; by which means the consideration of the note had failed. The bill prayed for an injunction and a new trial.
    The answer denied that the complainant had not notice of the suit at law, and averred that the complainant knew that the judgment against Gooch, under which the lot was sold, had been paid before the sale; that the complainant himself became the purchaser at a small sum, which they were willing to refund if required; that he had the property in possession, and Puckett had never been legally evicted.
    The chancellor dissolved the injunction in April, 1842; and in May, 1843, a circuit judge granted another injunction on a supplemental bill, which alleges that the note on which the judgment was rendered, was given for the purchase-money of a lot of ground, in the town of Madisonville, in Mississippi, sold by Enloe, Johnson, & Sitler to Samuel M. Puckett. That complainant was only surety upon the note. That at the time of the sale, Enloe, Johnson & Sitler represented their title to the lot to be “ indefeasible, and free from'doubt and incumbrance.” That Enloe, Johnson & Sitler knew that said representation was false, and that they had not a good and indefeasible title to the lot of ground, free from incumbrance. That the representations misled Puckett. That Enloe, Johnson & Sitler had no title at all to one half of the lot sold. That the other half of said lot was subject to the lien of a judgment against John S. Gooch, under whom said Enloe, Johnson & Sitler claimed title, and that under said judgment the interest of Gooch has been sold. That there are against Robert J. Walker, one of the grantees, under whom said Enloe, Johnson & Sitler claimed title, judgments for a much larger amount unsatisfied, than the lot ever was worth. That in the deed from Enloe, Johnson &■ Sitler, made to said Puckett, they covenanted that they were seized of an “ indefeasible estate, in fee simple, free from incumbrances done or suffered from them.” That the covenant was untrue, and that said lot of ground was, at the very time of the sale, incumbered by judgments against Enloe, Johnson & Sitler “ for a much larger amount than the property was then or is now worth, and that said judgment remains unsatisfied to this day.” The deed from Enloe, Johnson & Sitler to Puckett, contains these words: “ have granted, bargained and sold, conveyed and confirmed, and by these presents do grant, bargain, sell and convey, and confirm.”
    The chancellor, in January, 1844, dissolved the injunction granted on this supplemental bill, and Walker appealed.
    
      J. S. Yerger, for appellant.
    1. The bill shows a clear case of fraud upon the part of the vendors of the lot, which entitles the complainant to relief. 4 Howard R. 435; 5 Ibid. 673.
    2. The misrepresentation did not alone consist of a misrepresentation of title, but of incumbrances existing upon it; under these incumbrances the property has been sold, and, of course, the consideration of the note has failed.
    Whenever there is fraud and misrepresentation, the party will not be compelled to await an eviction, or rely upon his covenants of warranty, before he can go into equity for relief. The fraud is equivalent to an eviction.
    Eviction is only necessary to show the breach of the warranty. But if it appear that the party selling knew he had no title, and represented that he had, the false representations avoided the contract. In this case, the bill alleges that Puckett was misled by the false representations, and by means of in-cumbrances existing upon the property, has lost it.
    3. Aside from every question of eviction, fraud or misrepresentation, it seems to me that the bill shows a complete failure, or rather want of consideration for the note sued on, and removes all necessity of an eviction, before the parties can apply for relief.
    The words “grant, bargain, sell,” in a deed, &c. constitute, in law, a covenant of seizure; viz.: “ That the grantor was seised of an indefeasible estate, in fee simple, freed from incum-brances done or suffered from the grantor.” This covenant extended to the whole land. Rev. Code of Miss. sec. 32, p. 459.
    This covenant was broken as soon as made, if the party had no title, or if it was incumbered. 2 J. J. Marsh. R. 430; 1 Johns. R. 1; 4 Ibid. 72; 4 Cranch, 429; 11 Coke R. 60; 2 Sand. R. 171, c; 1 Touchstone, 169, 170; 4 Kent’s Com. 2d ed. 471; 3 Hill’s R. 134; 5 Johns. R. 53; Dyer, 303.
    It is otherwise of covenants of warranty. They are not broken until eviction.
    In this case, the land sold was incumbered by judgment liens against the vendors, for more than the land was worth. The estate was not indefeasible, and freed from incumbrance done and suffered from the party. The covenant was broken at the time it was made, and furnished to the vendees a complete cause of action.
    4. It may be argued, however, that as the vendor could remove the incumbrances, and perfect the title, an eviction is necessary, as the title by relation would vest in the grantee. This rule can only apply to incumbrances created by others, not those suffered by the grantor himself.
    
      The doctrine of title vesting by relation and estoppel, when acquired by vendor after sale, and before eviction, is derived from “ warrantia citarice," which was areal covenant, and upon eviction, lands of equal value were recovered by the warrantee. Hence, to avoid circuity of action, the doctrine of relation and estoppel, upon a title acquired by warrantors, after sale and before eviction, was adopted. Coke, sec. 446. 265, and 265 a; 14 Johns. R. 191; 2 Yerger R. 396, 397.
    5. In all cases where a subsequently acquired title has enured to the benefit of the vendee, it has been where the vendor’s covenant was not broken, or where he had no cause of action, for if he had cause of action, the subsequently acquired title of the vendor could not divest it. Unless this were the rule, he would be entitled to his action, and yet the title be vested in him.
    If a third person should evict him, and he sue on the covenant of warranty, and then warrantor should acquire the title, his right of action would not be divested, nor the suit barred. Right v. Ruclcnell, 22 Eng. C. L. R. 73.
    6. It is a vested right to recover the money on the covenant of seisin, as soon as broken. If so, the failure of title accrued at the instant the covenant was made, and is a good defence for the price of the land sold, for if the suit could be sustained on the covenant of seisin, to avoid circuity of action the courts will permit its being relied on, in defence to an action, for the price of the land so]d between the parties; and an act of assembly extends it to assignees. If the covenant of seisin was broken at the time it was made, the consideration of the note failed. 2 Johns. Ch. R. 523.
    7. The removal of the incumbrances by Enloe, Johnson & Oo. would not give consideration to the note. If suit had been brought immediately for a breach of covenant of seisin, a subsequent acquirement of title, and removal of incumbrances, would not have defeated it. Platt on Gov. 590.
    8. The doctrine of estoppels and relation, upon which evic-,ion is based, is to promote justice. It does not avoid rights acquired in the mean time.
    Run out the doctrine contended for. If suit is brought, will a subsequent acquired title abate it ? If judgment is obtained, will the execution be superseded or enjoined because of it? If the money is paid upon the judgment, can it be recovered back because of it? These consequences of the doctrine are too absurd to be contended for, yet they are covered by the principle assumed.
    Again, the vesting of the title in the bargainee by relation, is only so by way of estoppel to the bargainor. He is estopped by his deed to set up his subsequently acquired title, to prevent circuity of action. It is at the election of the vendee. If he does not rescind the contract, but agrees to abide by it, he takes the title. If he notifies him of a rescission, or files a bill, or commences suit, the estoppel cannot operate upon him. 1 Serg. & Rawle, 442.
    9. There is no estoppel where there are covenants of seisin. They are personal, and do not run with the land, and cannot be assigned. 3 Johns. R. 365; 2 Ibid. 1 ; Platt on Covenants, 590.
    The estoppel works only upon a warranty of title, which runs with the land, and is not broken until eviction. Hence, if the bargainor gets in the title before eviction, by a paramount title, it vests in the vendee from the date of the deed to him, and he never had cause of action. An estoppel always runs with the. law. 8 Cowen’s R. 558; 1 Salk. 276.
    10. Now a covenant of warranty runs with the land, and constitutes an estoppel. The covenant of seisin does not run with the land; therefore there is no estoppel. The covenant of warranty is an estoppel running with the land upon both parties. This is a covenant, not that the grantor has title, but that he will defend it against all others. This he does when called in to protect his warranty, by showing paramount title in himself. Not so of a covenant of seisin. That covenants that the vendor has title, &c. As long as the covenant is unbroken both parties are reciprocally estopped from merging the grantor’s title. The vendee cannot say the vendor has no title, nor can the vendor say he had not; for if he acquires the title subsequently, to set.it up would be contrary to his covenant to defend it. He covenants to defend it, and yet is assailing it.
    
      11. In acting on covenants of seisin, the forms of pleading establish my position. The breach assigned is, he was not seised at the time of sale, &c. A replication that he was seised at the time of sale, because he became afterwards seised, would be a departure, and bad. 1 Bay R. 357 • 9 Coke’s R. 71.
    12. There was a fraud in concealing the incumbrances; and where there is a fraud it vitiates the whole contract, and aids all the securities. Napier v. Elam et al. 6 Yerger’s R. 108.
    
      A. H. Handy, for appellees.
    The only matter presented to this court by the appeal, is the propriety of the order of the chancery court, dissolving the injunction granted on the supplemental bill. It is manifest that that court was right in dissolving the injunction, as it ought never to have been granted.
    1. The injunction was granted by a judge of the circuit court, in a case already pending before the chancellor in the superior court of chancery. If relief had to be sought, that was the source from which it must come, and it was very incompetent for any other tribunal to interfere in the matter pending the cause in that court.
    2. The supplemental bill, so called, has not a solitary feature of such a bill. The office of a supplemental bill is to bring before the court matters which have occurred since the original bill was filed. Stafford v. Howlett, 1 Paige, 200; Lubé’s Eq. PI. 136. This bill does not pretend to state any matter which occurred subsequent to filing the original bill. It contains nothing further than what is stated in the original bill, except a few general charges of fraud; and all this appears to have existed, if at all, when the original bill was filed. The court will not tolerate that a party should file his bill stating his case n part, and when this is decided against him, that he should come with a new statement of his case, and ask relief upon that. It was his duty to set out his whole case in his original bill; and failing to do so, he cannot be heard by supplemental bill. Moss v. Davidson, I S. & M. 144, a case strongly resem-fclin g the present.
    
      3. But this supplemental bill was not, in point of law, filed. There was no order or permission of the chancery court for filing it; without such order the bill could not be filed. Eager v. Price, 2 Paige, 333. The injunction then issued ón a bill which was not of record, and could not be, but by order of the chancellor. This bill was such an one as could never have been permitted to be filed. It was therefore proper that the injunction which issued upon it should be dissolved. It had no legal foundation to support it.
   Mr. Chief Justice ShaRkey

delivered the opinion of the court.

The complainant filed his bill in the superior court of chancery, to enjoin a judgment at law, which the respondents had recovered against him, in November, 1840, on a promissory note, made jointly by Fall, Puckett, Johnson, and complainant. An injunction was prayed, on the ground that the complainant had no notice of the suit at law, and therefore was prevented from making his defence, the merits of which consists in this; the note was given for a lot in the town of Madisonville, which was purchased by Puckett, one of the makers, in April, 1838, from Enloe, Johnson & Co. who derived title to the lot from John S. Gooch, through sundry mesne conveyances. Gooch had sold to Williams & Walker, in January, 1836, but the acknowledgment of the deed was not in proper form, although it was recorded; consequently the bill avers that it was liable to a judgment which had been recovered against Gooch, on the 2d of November, 1836, under which it was sold in August, 1840.

The answer denies, in the most positive manner, that the complainant had not legal notice of the pendency of the suit against him. It also avers that the judgment against Gooch had been satisfied, and that, through the instrumentality of the complainant, execution had been issued on it, and the lot sold, and purchased by the complainant for a very small sum, which the respondents offer to refund him, if necessary. By the answer the material allegations of the bill are all swept away. A motion was made to dissolve the injunction on bill and answer, which was accordingly done by the chancellor, who gave an opinion at length on the merits of the case, which is reported in Freeman’s Chancery Reports, 85, in which he gave a construction to the law in relation to conveyances, which has since received the sanction of this court. Dixon & Starkey v. Lacoste, 1 S. & M. 70. We therefore concur with the chancellor in his disposition of this part of the case.

.But the complainant then filed a supplemental bill, in which his ground for relief is materially varied from that taken in the original bill. On this another injunction seems to have been granted, which was also afterwards dissolved on motion, on the face of the bill, as there was no answer to the supplemental bill; and from this decree the complainant appealed.

This bill sets up fraud in representing the property as unin-cumbered, when in fact there were very large amounts in judgments against Walker, and against Enloe, Johnson & Co. at the times of their respective sales, which still remain outstanding and unsatisfied, and that Puckett was ignorant of such incum-brances. It also alleges that Enloe, Johnson & Co. made a covenant of seisin of an unincumbered estate, which was broken as soon as it was made, in consequence of the existence of the judgments.

It has been contended that this supplemental bill was improperly filed, and the injunction improperly allowed on it, as it contains nothing which was not fully known to the complainant at the time he filed the original bill, and that a supplemental bill is only allowed to introduce new matter. This objection is not without force, but if it was improperly filed, it might have been taken from the file. The chancellor, however, seemed to entertain jurisdiction over its merits by dissolving the injunction. The general rule, in relation to the facts disclosed, is, that,if a,purchaser has protected himself by covenants, he is not entitled to be relieved against a contract for real estate, uhmix-ed with fraud, until after eviction.. But fraud vacates all contracts, and whenever it is charged it must be answered. As a general rule It follows that when an injunction has been granted on a bill which charges such fraud as would vacate the contract, the injunction ought not to be dissolved on the face of the bill. But it is believed that although fraud be charged, yet it must be presented in such a manner as to enable the court to give relief. The bill must show a case which would enable the court to set aside the contract for fraud, and as the chancellor has decreed that the injunction should be dissolved, if that decree is obviously right, it cannot be reversed.

This contract of sale was made between Puckett, and Enloe, Johnson & Co. and if there was fraud in the transaction it was perpetrated on Puckett, who was the purchaser, and to whom the deed was made. Walker sets out in his bill that he was a mere surety; the consideration did not pass to him, but to Puckett; but Puckett does not complain of fraud in the contract; he is no party to this proceeding, and for anything that appears, is content with his bargain. Suppose then the injunction should be made perpetual, what is the consequence? It would not vacate the contract. Puckett may still insist upon the contract. The effect would be to take from the vendor a part of his security, and leave the contract in force. Can this be done? It is evident that no decree that could be made in this cause could affect Puckett, for he is no party ; the court cannot therefore interfere with his contract. Puckett and Fall were both defendants to the judgment, and the injunction suspended the execution as to them as well as to complainant. No reason whatever is shown why they are not made parties, which should have been done, if practicable. No relief could be given to the complainant without vacating the contract, which under the circumstances cannot be done. Walker cannot complain that the contract was void for want of consideration. The consideration was received by Puckett, which was sufficient to make the contract binding on Walker. Puckett seems to be still satisfied with his bargain; he does not deny but what he has received a full consideration; he does not aver that any fraud was practised on him. If he were before us he might admit that he purchased with full notice of incumbrances. A case is presented then by the bill in which no decree can be made; there is no equity in the bill as to complainant, and wherever no decree can be made, or there is no equity on the face of the bill, the injunction may be dissolved before answer. Minturn v. Seymour, 4 Johns. Ch. R. 173; 1 Tenn. R. 196, cited in note to Eden on Injunctions, 115. We are aware that by rule of practice in the superior court of chancery, no motion to discharge an injunction on the face of the bill will be received, but the party must demur. Rule 21. The chancellor must have considered that rule as inapplicable in the present case, or he would not have dissolved the injunction, and his interpretation of the rules of that court must furnish a safe precedent. It seems to us that the rule cannot apply to a case in which no decree could be made, even if the facts were admitted. Under such circumstances there can be no propriety in retaining an injunction, which should never be granted except on a prima facie case for relief.

We do not mean to laydown a general rule that a surety can never avail himself of a defect in the contract of his principal. It is only intended to say that it cannot be done in a case like this.

The decree dissolving the injunction must be affirmed.  