
    Coleman, Appellant, v. Rowe.
    The vendee of land paid part of the purchase money in advance, and executed his notes in instalments to secure the payment of the remainder, and took a bond from the vendor to make titles with covenants of warranty, when the last instalment was paid; the latter representing that he could make a good title. The vendee went into possession, and, without previous eviction, exhibited his bill in Chancery, setting up an outstanding title, and asked for injunction of the collection of the notes given for the purchase money, which was refused on the ground that the covenants were independent, and that, there had been no eviction, nor fraud proved.
    APPEAL from Chancery.
    The bill charged that in March, 1837, the appellant bought of appellee, Rowe, a certain tract of land, known as the north half of the south-east quarter, the east half of the north-west quarter, and the south half of the west half of the north-west quarter of section twenty-six, and the east half of the south-west quarter and the north half of the south-east quarter of section twenty-seven, all in township eleven, range six, east, containing three hundred and sixty acres, for the sum of seven thousand and two hundred dollars, of which two thousand and four hundred was to be paid in cash when possession was delivered, and one thousand and seven hundred dollars of which was in fact paid; and for the balance of the two thousand and four hundred dollars, gave his several promissory notes, payable at one, two and three days after date, for fifty dollars, dated 30th March, 1837; and for the remaining four thousand and eight hundred dollars, he gave his two notes payable in equal instalments, one on the 1st January, 1838, the other on the 1st January, 1839. Rowe executed a bond for title, affirming that he was able to make a good title. The bill further stated, that if Rowe is not insolvent, he is in laboring circumstances in his pecuniary affairs, and that unless Rowe can make a title he will never get any thing for his money. It stated further, that Rowe had no title to the land, and that the west half of the north-east ‘quarter, the east half of the north-west quarter, and the south half of the west half of the north-west quarter of section twenty-six, township eleven, range six east, the most valuable portion of the land, belongs to a Choctaw Indian named Tishoma, and that it was awarded to him by the commissioners of the United States; under the fourteenth article of the treaty of Dancing Rabbit Creek. It stated that Rowe does not pretend to derive his title from the Indian; and that the Indian is in possession of a part of the land. The bill further stated that the remainder of the land belongs to Nimrod Davis. It stated that Rowe transferred the notes for fifty dollars to several persons, and that judgments have been taken on them at law, the circuit judge saying complainant’s relief was in equity. It further states, that a rescisión of the contract has been proposed to Rowe, who refused. It prays for an injunction, rescisión, &c.
    There was a plea to that part of the bill which relates to the judgments at law. The answer admitted the- sale as stated, the obtaining the judgments, &c.; denied that the land belonged to Tishoma, and states that the title is in him, Rowe, and exhibits as evidence a certificate signed by Harris, Receiver, for fifty dollars and thirty-two cents, paid him by Rowe, for the south half of the west half of north-west quarter of section twenty-six, township eleven, range six east, which certificate is dated 12th March, 1835; a certificate of the same date, signed by Harris, for two hundred and one dollars and eighty-six cents, paid by R. Shotwell for west half north-east quarter, and east half north-west quarter of section twenty-six, township eleven, range six, east; also, a deed dated 17th April, 1837, from Shotwell and wife to Rowe. The bill also denied that any part of the land belongs to Davis, but says it belongs to Rowe, and exhibits a certificate of money paid by Joseph Grigsbey amounting to two hundred and two dollars and ninety-five cents, for west half south-east quarter, and east half of southwest quarter of section twenty-seven, in township eleven, range six east, endorsed on it “ transferred jo Nimrod Davis, 30th August, 1826,” and by him to Rowe on the 18th December, 1828. The amended answer denied Rowe’s insolvency, and contained exhibit of relinquishments of dower by Mrs. Shotwell and Mrs. Davis.
    The evidence in the case was as follows: J. C. Groves proved that Tishoma lived on the land in dispute, and witness thinks this was when Rowe entered it. Witness told Rowe before he entered, that the Indians on it claimed it, and would hold it. Second witness, Benjamin Leflore, proved that Tishoma lives on same land with Coleman, and that he lived there before the treaty of Dancing Rabbit Creek, and continued to live on it till Rowe drove him off. At the time he was driven off, his corn was six inches high. On cross-examination, he stated that Tishoma’s mother lived on the land at the time of the treaty also, and was the head of a family.
    
    S. Speight proved, that Tishoma lived on the place in dispute in the year 1835, and that Roye employed witness to drive him off. That he did so, pulling down the Indian’s house, who built tents, which were likewise pulled down. Tishoma cultivated about twenty acres of ground.
    Tishoma’s witness proved, that after the treaty he went to Col. Ward, the government agent, to 'signify his intention of remaining in the United States, but Ward refused to register his name. Coleman now lives on the place, witness having been driven off by Rowe. Tishoma’s evidence was objected to at the time it was taken, because he was an Indian, and because defendant did not have regular notice.
    William Boon proved, that Rowe is insolvent, or at least is not trustworthy for a large sum of money.
    Edward Fox stated that it was proved before the commissioners of the' United States that Tishoma came to the agent to have his name registered, but was refused, because too many Indians were applying.
    Tishopiah proved, that Tishoma was the head of an Indian family at the date of the treaty, that he applied to Ward to have his name registered, before the annuity at Leflore’s.
    Other witnesses proved that Rowe is good for his contracts.
    The Chancellor dissolved the injunction, from which an appeal was taken to this court.
    W. Yerger, for appellant.
    A court of equity will rescind a contract where the vendor has been guilty of fraud or misrepresentation, whether the same relate to the title or quality of the estate sold, more particularly where the vendee holds a bond only for title. 2 Story’s Equity, 218; 3 Peters, 210; 3 Litt. 337; 3 Yerg. 178; 3 Monroe, 556; 2 John. Ch. Rep. 522 ; 6 Yerg. 117; 1 J. J. Marshall, 6; 1 Story, 200, 201, 202; Ib. S77-8.
    The title to the land in controversy, or at least to a large portion of it, was in the Indian. The 14th article of the treaty of Dancing Rabbit Creek gave to those Indians who complied with it a legal title to the land. See opinion of this court in the case of Newman v. Harris & Plummer, 4 Howard, 522.
    The fact that the Indian’s name was not registered by the agent is immaterial, the treaty does not require it. See the Treaty, 14th article; and also Mr. Bell’s Report, 6, in Reports of Committees, 1st Session, 24th Congress.
    The fee is vested in the reservee, upon condition that he remain upon the land for five years. But to defeat the claim of the Indian, his removal must be voluntary — not produced by fear, violence and threats. 2 Yerger, 432; 4 Ib. 43S; 7 lb. 60; 5 lb. 326.
    The testimony of Indians is competent in any cause. How. & Hutch. Dig. 76.
    Thompson, for appellee.
    The complainant cannot come into a court of chancery to enforce a specific performance or a rescisión without paying or tendering the money due on the contract, as the payment of the money was a condition precedent, for by the express agreement of the parties the deed was to be made on the payment of the purchase money. See 6 Wheaton’s Rep. Braskin v. Gratz, 528. The last of the purchase money was to have been paid the 1st of January, 1839, as appears by the statement of the bill. There was no attempt to pay it on the large amounts due more than two years before. The bill Avas filed the 20th day of June, 1839. Upon this point see also 1 Peters’ Rep. 455, Bank of Columbia v. Peter Hagner.
    It is not necessary that the vendor should have a complete, unencumbered title at the time he contracts; it will be sufficient if he can make a good title at the time he engaged to convey. 2 How. Rep. 341, Gibson v. Newman; 5 Cowen’s Rep. 511, Champion v. White; 5 John. Rep. 181; 20 John. Rep. 15.
    Rowe denies the charge of fraud and insolvency, and it is contended they are not made out by proof. There is no proof at all of fraud, and the weight of evidence is, that Rowe is solvent.
    G. S. Yerger, for appellants, in reply.
    1. The first question for the court to determine is, whether a Court of Equity will rescind an executory contract. Where there is no title to a large part, or all of the property agreed to be conveyed, upon the mere.ground that the vendor cannot make a title, (although the bill charges that the vendor in this case represented he had title, which is admitted by the answer, the vendor insisting thereon that he has title,) yet I am disposed to put the case upon the strongest possible ground for the vendor, and shall assume the position as incontrovertible, «that where the contract is executory, although possession has been delivered and there is no fraud or eviction, yet if it is discovered the vendor cannot make a title, a Court of Equity will relieve.”
    It is admitted when a deed is taken, possession delivered, and no fraud, eviction, or other impediment to a remedy at law upon the covenants, that equity will not in general interfere. But we think it equally well settled, that where no deed is taken, but only a bond for title, a Court of Equity will not compel the party to take the title if defective, nor permit the other party to receive the money until the title is made good.
    In cases of specific performance, or when the vendor was seeking to enforce the contract, the question never admitted of a doubt. Sugden on Vendors, new edition, 333, 340, bottom page. 2 Barber’s Digest, 522, and cases cited. And the cases seem to be equally clear where the vendee seeks a rescission, that he is entitled to it if the vendor cannot make a title by the time the decree is pronounced. Gwillam v. Sterne, 14 Vesey, 139. Clark v. Faux, 3 Russell, 320. 3 A. K. Marshall’s Rep. 335. Littel’s Select Cases, 404. 1 Tennessee Rep. 258. 4 J. J. Marshall’s Rep. 200. 4 J. J. Marshall, 393. 3 Bibb, 342. 2 Tucker’s Commentaries, Title Injunction. 1 Exch. Condensed Rep. 109. and when a purchase is made under an order of the court, and it is ascertained no title can be made, the court on motion will discharge the purchaser. 5 Condensed Ch. Rep. 14.
    2. The jurisdiction of the court is then clear. The bill alledges the title to be in the Indians by virtue of the 14th section of the treaty of Dancing Rabbit creek. The proof in the case shows manifestly and clearly that the land belonged to the Indians, according to the construction put on the treaty by this court at this term, and also by the officer of the'government. Vide, Opinion of Attorney General Butler, in Opinions, &e. in relation to Indian Treaties, pages 205 — 208, and vide also Mr. Bell’s Rep. No. 663. 3 vol. 1st Session of 20th Congress, Reports of Committees. The defendant consequently has not the title, nor can he ever get it.
    3. But it is said the testimony is that of Indians. Their testimony is admissible: the act excluding their testimony, Revised Code, 130, has been repealed. Vide Laws of Mississippi. 207.
    4. If their testimony was not admissible, the injunction ought not to have been dissolved, although ordinarily an answer which positively denies the whole equity of a bill, will dissolve the injunction ; this applies merely to facts charged to be within defendant’s knowledge, &c. It never has been applied to cases where the object of the bill is to enjoin the collection of money, until the title to property either real or personal is ascertained. In all such cases, the practice of the court is to refer the matter to the clerk and master, to report the state of the title, or the facts in relation to it, and upon the coming in of the report, the question of title or no title, is argued upon exceptions taken to it. 4 John. Ch. Rep. 670, and cases cited. Frost v. Brunson, 6 Yerger Rep. 36; and in cases of doubt, the court never will dissolve the injunction until the case can be heard. 5 Exch. Rep. 18. But the question has been solemnly decided, “ that the court will not dissolve an injunction, granted to restrain a purchaser from proceeding at law to recover the purchase money, the contract being impracticable from defect of title, without the master’s report, although the objections are fully stated in the defendant’s answer.” Church v. Legeyt, 1 Con. Exch. Reports, 109.
    
   Mr. Justice Thottek

delivered the opinion of the court.

The exhibits referred to in the answer fully support the statement of a regular derivation of title by appellee, from the general government, to all the lands sold by this contract to appellant. Sundry depositions were taken to prove the paramount title which is stated to be in Tishoma; but no question is made of appellee’s title to the residue. The preponderance of the proof is against the ailedged insolvency of the appellee. Upon this statement of the case, the chancellor dissolved the injunction.

1 ' It is important, in considering the question of the appellant’s title to relief in this case, to examine the character of the agreement which is disclosed by the record, and whether the promise to pay the purchase money is dependent or independent. The general rule appears to be, that the intention of the parties, to‘be gathered from the whole contract, is the criterion of the question. Thus where a day is fixed for the payment of money, or part of it, and the day is to happen, or may happen, before the thing which is the consideration of the money is to be performed, an action may be brought for the money before performance ; for it appears that the party relied upon his remedy. 1 Saunders, 319. 2 H. Bla. 389. 20 J. R. 15. 5 Cowen, 509. 15 Mass. R. 471.

^ ” In the case just mentioned, where a day is fixed for the payment of money, or part of it, the courts have held that the promise or covenant is independent, because it appears to be the intention of the vendee to pay at all events. And'- hence, where the covenant is to pay the purchase money by instalments, or where part is paid down, and the balance is to be paid by instalments, it has been held that the agreement to pay in this manner is independent. This rule applies as well to contracts for the sale -*af land as of other property; and is therefore an exception from the general principle which prevails in the construction of this , class of agreements; which is, that contracts for the conveyance of land are to be considered mutual and independent, so that the vendor shall not be compelled to part from his land without receiving the consideration agreed upon, nor the vendee to pay the money without the conveyance of the land. This is the doctrine of the case of the Bank of Columbia v. Hagner, 1 Peters’ Rep. 465, and is founded in a wise policy to prevent great injustice ; since otherwise the party might be exposed to irreparable loss. But whilst the principle is thus broadly laid down, and so fully sanctioned by reasons of expediency and justice, it must of necessity yield in all cases to the agreement of the parties, which shows that it was the intention to waives its benefit. The rule. therefore, prevails only in cases where the parties have not manifested an intention, by the terms of their contract, to place themselves under a different one. And this is fully recognized by the court in the case referred to.

It is true, that in the particular case then under their consideration, the court held the contract to be dependent, although the agreement of the vendee was to pay by instalments; a determination which would seem to be founded on the peculiar circumstances of the contract. Hagner submitted a proposition in writing to purchase the lots of the bank, and to pay.the purchase money in six quarterly instalments; for which he would give his notes, if the bank would give him the title. If the bank preferred it, however, he would take a bond for the title when the payments fl-ere completed. It was upon this proposition that the action was brought; and the court decided that the bank was bound to show a tender, either of the bond or deed, before they could recover.

The agreement of Hagner to pay, or to execute his notes, was evidently dependent upon the performance of the condition upon which they were to be made. He was to have a bond for title, or the title itself, and this was the entire consideration of his contract. It is, therefore, entirely a different case from the one at bar. The vendee here received a security for the title in the bond of the vendor,.conditioned for a deed when the last payment of the purchase money was made. And it is evident that he intended to rely upon,.bis, remedy, on that security, from the fact of his having paid part of the money at tKe' '¿line, and promising to pay the larger portion of the whole sum agreed upon at times anterior to the day or event on which he could demand the title. The principles settled in the case of Newman v. Gibson, 1 Howard, 341, are decisive of this question; for the contract in that case was very similar in its terms to the one which is shown in this. And upon a careful examination of the authorities, we feel satisfied to adhere to the doctrine there laid down. ‘ Hence we conclude, that the agreement of the vendee in this case, to pay the money, was independent of the performance of the covenant for title on the part of the vendor.

The vendor agreed to convey the title when th'e last payment was made. It thus appears that the payment of the money was to precede the conveyance; and according to the case of Robb v. Montgomery, 20 J. R. 16, “when the payments are, to precede the conveyance, it is no excuse for non-payment that there is not a present existing capacity to convey a good title, unless the one whose duty it is to pay offers to do so on receiving a good title, when it must be made to him, or the contract may be rescinded.” So in the case of Miller v. Long, 3 A. K. Marshall’s Rep. 335, it was stated that the vendor was not bound to convey the titleihn-til the purchase money was paid. So also in the case of Saunders v. Beal’s Administrators, 4 Bibb, 342, where the agreement was to pay the purchase money in three years, and the vendor covenanted to convey the land in twelve months, or so soon thereafter as the consideration money should be paidjJrTwas held not to be a good answer to an action to recover the money that the vendor had not conveyed the land and was not able to do so, though the vendee averred a tender of the purchase money, and a readiness to pay upon receiving the deed. And in the case of Champion v. White, 5 Cowen, 510, the defence was an inability on the part of the vendor to convey a part of the land; but the court, after deciding that the promises were independent, held the defence not to be tenable.

The bill of complaint in this case does not aver any offer on the part of the vendee to comply with his contract by paying or (tendering the purchase money, nor any demand of the title, but claims a rescisión of the an inability on the part" oTtBiTvenci'dr to convey the title. And it is insisted that the court cannot compei the party to take a defective title, or to resort to his remedy upon the covenant. That where the contract is executory and the vendor is unable to comply with his covenant, the vendee may elect to sue upon the covenant or dis-affirm the contract, notwithstanding he has gone into possession and there has been no eviction. The rule appears to be well settled both in England and in this country that in the case of a purchase of land, where the title fails, a court of chancery will decree a return of the purchase money, even after the complete execution of the contract by payment of the money and delivery of the deed, if there has been a fraudulent misrepresentation as to the title. But it seems to be settled in England, and by most of the courts in this country, if there is no fraud, and the purchaser is not evicted, that the insufficiency of the title, is no ground for relief against the payment of the purchase money, or for rescinding the purchase, and claiming restitution of the money. The party is remitted to his remedies at law on his covenants to insure the title. 2 Kent’s Com. 370, Abbott v. Allen; 2 J. Ch. Rep. 519; 3 A. K. Marshall, 335; 4 Bibb, 342; 5 Conn. Rep. 528; 1 Greenleaf, 352; 5 Cowen, 510; 9 J. R. 126. The case of Newman v. Gibson, 1 How. 341, was decided in conformity with the principles of the above cases. And although we may doubt the policy of this doctrine in its general application, and believe that the justice of the case may often be with the defence, yet it is now too well settled to be departed from.

If then, there has been no fraud, nor any eviction, and the agreement is executed, the vendee can have no claim to relief on the mere ground of a failure of title, 1 J. Ch. Rep. 213. But as in the present case the deed has not been delivered, the contract remains executory and a different rule it is said must prevail. This distinction is laid down and supported by the court in the case of Miller v. Long, 3 A. R. Marshall, 335. In that case the right of the vendee to be relieved where the deed has been delivered is denied; but it is said to be otherwise where the contract is executory, to execute the deed in future. In the first case the court recognize the general rule laid down, that the vendee must resort to his remedy at law upon his. covenants. But in cases like the present where the vendee takes the precaution to secure himself by a penal bond covenanting to convey a title with full covenants, and that appears to be the consideration of his promise to pay the money, though we may consider the covenant to convey as an executory contract, yet it is difficult to conceive how that circumstance can vary the rule as to relief. In the latter case the vendee has his remedy at law upon the covenants in the bond, and he would seem to be equally subject to the general rule to resort to that remedy if there is no fraud or eviction.

In this case the vendee was put in the possession of the land, and has continued in the quiet and undisturbed possession for a period of nearly four years, and for aught that appears to the court may never be disturbed by the alledged outstanding title of the Indian. He has not even been threatened with this title, and no step has been taken by the Indian to enforce it. Under such circumstances it seems to us that it would be contrary to every principle to go into an inquiry as to this title, or to settle its paramount validity, in this collateral proceeding, when the Indian is not before the court, when his title is flatly denied by the vendor, and when he has not for himself thought proper to assert it by any adverse proceeding. Such were the views entertained by the Supreme Court of this state in the case of Miller v. Owens and others, Walker’s Rep. 244, and they seem to us to be fully sustained by the Chancellor in New York in the case of Abbott v. Allen, 2 J. Ch. Rep. 519. In that case the Chancellor reasserts the principle which was established by a former decision in the same court in the case of Bumpus v. Platner, 1 J. Ch. Rep. 213, “ that a purchaser of land who is in possession cannot have relief here, against his contract to pay, on the mere ground of a defect of title without a previous eviction.” And adds, that if there be no fraud in the case, the purchaser must resort to his covenants, if he apprehends a failure of title.” It would lead to the greatest inconvenience to permit a purchaser in the actual enjoyment of land, and when no person asserts or takes any measures to assert a hostile claim, to stop the payment of the money on suggestion of a defect of title and on the principle of quia timet.

Hence we conclude, that the appellant is not entitled to .relief in this case, 1st. Because his contract to pay money was independent of the covenant of the appellee to make him a title. He agreed to pay the money at all events, and relied upon the covenants in the bond for a title. 2d. Because he was put in possession of the land and has continued in the undisturbed possession since the time of the contract, and there is no fraud proven upon the vendor, and there has been no eviction by paramount title. 3d. And also because there is no proof of a defect or failure of title which can be noticed by this court. The answer denies the outstanding title, and it has not been duly ascertained in any of the modes by which it can be recommended to the consideration of the court.

The decree of the Chancellor must therefore be affirmed, with costs to the appellee.  