
    Woods vs. North and Johnson.
    1. Whore an executor offers the property of the deceased for sale, it is a representation that he has the power to sell, and the purchaser is defrauded if he, the executor, has no right to sell, and a court of chancery will decree a recission of the contract of sale.
    2. Where a party sells without right and gives a covenant of seizin, a right of action accrues at the execution of the deed, and a bill lies to rescind the contract by reason of the circumstances of fraud and imposition.
    
      3. When a party sells estate fraudulently to which he has no title, and the ven-dee comes into equity to rescind the contract, he will not be compelled to take an after-acquired title from the vendor,
    This is a' bill which was filed in the chancery court at Murfreesboro’, by Wood against North, for the recission of a contract of purchase of a tract of land lying in Rutherford county. North was the executor of his father’s will, and without authority from the will, exposed to sale with the other property of the deceased, a tract of land which the complainant purchased, and executed his notes for the payment of the purchase money. The land belonged to the heirs at law of the deceased, of which defendant was one. The bill charges that in making the purchase he was deceived as to the title. The answer of the defendant admitting the want of authority by the will to sell, and denying all fraud in the sale, alleged that he believed he had the right to sell at the time of the sale.
    The heirs petitioned for a sale of the land for division, and it was ordered. The defendant became the purchaser, and tendered a title to complainant.
    The case was heard by Chancellor Ridley, on bill, answer, replication and proof. He decreed a recission of the contract, and the complainant having paid a part of the purchase money, he ordered an account, &c. &c. The defendant appealed.
    
      
      Avant, for complainant.
    He cited 4 Hum. 46; 2 Ten. 427; 3 Hayw. 141; 6 Yerg. 108.
    
      Keeble, for the defendant.
    There has been no eviction of the complainant, and therefore he cannot be heard in a court of chancery to demand a recission of the sale, unless there is fraud shown to have been practised upon him by defendant, North. See M’New vs. Walker, 3 Humphreys Rep. 186.
    The only allegation in complainant’s bill, charging fraud, is “that defendant North, deceived him, complainant, as to the title to said land; but the bill does not charge facts from which the fraud is inferable, and is therefore not sustainable. — 5 Haywood, 88.
    In this case the complainant relies upon the fact, that defendant, North, sold land which he had no right to sell, as of itself evidence of fraud sufficient to set aside the contract. He does not pretend that North made any false representation to him as to his authority under the will of Wm. North to sell the land; nor does he charge that there was any suppression of the truth by which complainant was deceived. The complainant does not charge, that, at the time he purchased the land, he believed that there was any other authority in the will to sell, than the clause inserted in his bill*, on the part both of vendor and vendee, it was an ignorance of the law relative to the power conferred upon the executor, .by that clause in the will, and affords no ground for relief. Trigg vs. Read, 5 Humphreys, 529, and authorities there cited.
    There is a distinction between this and a case where a party sells an estate, knowing that he has no title at all. Defendant, North, did have some title to the land sold as heir to his father, and by purchase from a portion of the other heirs. He had title to part of the estate, though not to the whole, and having such title, the assuming to sell the whole, is not fraud; he would only be bound for the whole.
    
      But if North had no title at the time he sold, that fact is not evidence of fraud, nor will the sale be rescinded if he could secure a goód title, or the complainant had purchased or acquired the title himself. — Meadows vs. Hopkins, and Hopkins’ adm’r. vs. Jewell; Meigs’ Rep. 181.
    Upon the covenants of seizin and title to convey contained in North’s deed, complainant had a present right of action at law, so soon as he discovered a defect in North’s title: this right of action at law, of course would repel him from a court of equity, unless he shows the insolvency of North. — Ingram vs. Morgan, Garret, et al., 4 Humphreys’ Rep. page 66.
    North has procured and filed an unimpeachable title before the hearing of the cause, in pursuance of an interlocutory order of the court, and such title was in time, and removed every reason for rescinding the contract. — Vide 2. Devx. Eq. page 13.
   Geeen, J,

delivered the opinion of the court.

This bill is filed to rescind a contract for the purchase of a tract of land.

Theoderick North, the defendant, is one of the executors of the will of Wm. North, his father, and at the sale of other property belonging to the estate, he offered for sale the tract of land in controversy, representing that as executor, he had a right to sell and convey the same. The complainant became the purchaser, and the defendant, as executor, executed to him a deed of conveyance, with a covenant that he was seized, and had a good right, as executor as aforesaid to convey.

The will of Wm. North confers no power on his executors to sell his land, and the deed of the defendant vests no title in the complainant.

While this bill has been pending, a decree has been made for the sale of this land, in order for a division among -the heirs of Wm. North, and the defendant has become the purchaser at the sale, which has been made under that decree;, and he now offers in his individual character, to make a good title to the complainant. The Chancellor decreed a recission of the contract, from which decree the defendant appealed.

We are of opinion there is no error in this decree. There is nothing in the clanse of the will reférred to in the pleadings from which the executor could possibly infer, that he had authority to sell the lands of his testator. The very proposition to sell the land as executor, was a species of fraud. Persons who go to a public sale of a deceased person’s estate, are not in the habit of scrutinizing the provisions of the will, to judge of the extent of the executor’s power. They take it for granted, that he has good right to sell all the property he offers to the bidders. W here he thus offers the property for sale, it is a representation that he has a right to sell, and by reason of his situation he gains the confidence of bidders, who are deceived thereby, if he have no power to make the sale. Whether he intends corruptly to defraud the purchaser or not, the effect is the same; the bidder is deceived by the false representation, and ought to be relieved. ,

In this deed there is a covenant of seizin, in which the defendant asserts that he has a right to sell and convey this land as executor.

Here is an express misrepresentation. The complainant had a right to bring his bill before he was evicted because of the covenant of seizin, on which a right of action arose the moment it'was made. There is no reason for denying the complainant relief, and turning him over to his action at law on the covenants in the deed. The circumstances of imposition and fraud in the sale, are such as to sustain the jurisdiction of a court of equity. 4 Hump. R. 66. The oiler by the defendant of his own individual deed, by which a title acquired by him, personally, since the pendency of this suit, presents no ground for refusing the relief prayed in this bill. If the complainant were compelled to take this title, the price' he agreed to give for the land would enure to the individual benefit of the defendant. He has purchased the land and he is bound to his co-heirs only for the price he bid at the sale under the decree before mentioned, while he would get all the benefit of the exhorbitant price, it may be, which the complainant was to give. But if a party fraudulently sell, and convey an estate to which he has no title, the vendee who comes into equity to rescind the contract, will not be compelled to take an after-acquired title from the vendor.

Aifirm the decree.  