
    NOVEMBER TERM, 1844.
    William Ayres v. William H. Mitchell, et al.
    A complainant who seeks to rescind a contract for the sale of real estate, must show clearly the defect in the title, and that there has been fraud, accident, or mistake, and then the remedy must have been pursued in good time.
    If the vendor, at the time of the decree, is unable to make title, and there is no adequate remedy at law, a rescission will be decreed.
    To justify a rescission on the ground of fraudulent representations made by the vendor, the representation must be in reference to some material thing, unknown to the purchaser, for want of an opportunity to be informed, or from a confidence which he reposed in the statements of the vendor.
    When a bond is given to make a title to land upon the payment of part of the purchase-money, it is incumbent on. the obligor to perform, or offer to perform his part of the contract before he can ask a deed, or rescission of the contract.
    It is incumbent on a complainant seeking to rescind a contract on the ground of a defect of title, to show the nature of the incumbrances or outstanding title, so that the Court may judge of their validity.
    Assurances given by the maker of a note to the assignee, before the assignment, that it would be paid, amount to a waiver of all equities.
    It is usually necessary for a party who wishes to rescind a contract, to make his application as soon as he discovers the ground of rescission. By subsequent acts he may waive his right to have the contract set asicfe.
    To entitle a party to have a contract rescinded, he must make out a clear and undoubted case. « ,
    William and Isaac Mitchell filed their bill in the District Chancery Court, onthe22d Sept. 1840, against Benjamin P. Gates, Wm. Ayres, and others, setting out, that on the 9th Feb. 1840, they had purchase’d of Gates certain lands, on one parcel of which there was a mill, for the sum of $4500 ; that on the same day they took the deed of Gates, which is made an exhibit, for two quarter sections of the land ; that for the quarter on which the mill is situated they took the title bond of Gates, which-is also.made an exhibit; that the titlé bond, which bears date on the 1st Oct. 1838, was not, in fact, delivered until the date of the execution of the deed. The bill charges that the contract was entire, and that the quarters conveyed by the deed are essential to the mill and valuable for the timber.
    The bill further states, that the notes recited in the title bond were not, in fact, the notes really given, and proceeds to set out what notes were really given.
    In relation to one note, the following statement is made. One note for $850, dated on the 24th Sept. 1838, and payable one day after to Perry Gates, who is the same person as the defendant, B. P. Gates, which was signed by complainants and one John Quillen, originated as follows : about the date of said note, Wm. H. Mitchell and John Quillen agreed to purchase the same property from Gates, and were to give Isaac Mitchell as security ; the notes- under this contract were executed about the 5th Oct. 1838, and were left with Wm. Mitchell, to be delivered up to Gates, on his compliance with the contract. Possession of the mill and lands were given,, and the notes delivered up to Gates, who passed off, or pretended to have passed off, the one for $850' above named, so that he could not afterwards control it; that Gates afterwards failed to comply with his agreement with Quillen and Wm. H. Mitchell, and their contract was dissolved by mutual consent, and all the notes delivered up, except the one for $850, which said Gates represented' had been sold to Wm. Ayres, and which it was not in his power to deliver. When the contract w&s entered into between the complainants and Gates, as first above stated, it was agreed, for the accommodation of Cfates, that this note for f850 should be taken and considered as part of the purchase-money, and for that sum no note should be given and that the complainants should pay the amount to the holder.
    Another note is described in the bill as anote for $500, dated 8th February, 1839, and payable on 25th Dec. 1839.
    These two notes, for $>800 and $500, are stated to have been transferred to Wm. Ayres, and it is stated that he had recovered judgment for the first, and instituted suit on the other. It is also stated that Ayres on his judgment had collected part of the money.
    The bill then states, and charges at the time of their purchase from Gates, there were unsatisfied judgments to a large amount against him in the Courts of this State. That he had no title whatever to the lands mentioned in the title bond ; that he falsely and fraudulently represented that he could make a good title ; that whatever title he had has been sold under executions against him ; that they, complainants, were deceived and defrauded by Gates, in making notes of amounts and dates different from those described in'the bond ; that Gates is insolvent? and has removed to Texas ; that if they are compelled to pay the notes, it will be a total loss to them.
    The bill prays an injunction against all the notes, that the contract be rescinded, and the notes cancelled, and the judgments perpetually enjoined.
    There was an order of publication as to Gates, and as to him the bill was taken for confessed.
    Ayres answered, that as to the contract of sale between the cono plainants and Gates, alleged to have been made on the 9th Feb. 1839, he knew nothing, and required proof, so far as his interest was concerned ; denies that the contract of Sept. 1838, was rescinded, believes the contrary, and requires proof as to that allegation.
    Admits that the note for $850 was transferred to him by Gates in the fall of 1838 for a valuable consideration. States that before the transfer he applied to complainants, who informed him the note'was good and would be paid.
    Admits suit on the note as charged, and insists that if the complainants had the defence to said note which they now attempt to set up in equity, they should have made it in the suit at law.
    Admits the. transfer of the note for f>5Q0, and states that he was induced to trade for it by the assurances given in relation to the other note ? and upon application, after he had taken it, the complainants paid a part of it to him in plank, before' it was due, and admitted that the whole amount was just and binding on them.
    Denies that there were any judgments against Gates anterior to Sept. 1838, and states that there is but one since, for $ 160 only, which was in favor of Booker Foster, and that under this small judgment the land and mill were sold in the spring of 1840, and bought by Booker Foster at $15.that he believes the complainants, by combination and collusion with Foster, adopted this plan of selling the land and mill merely to furnish a pretext to rescind this contract with said Gates.
    The answer of Ayres was, by agreement, taken as the answer of N. & H. Weed & Co., for whose use the suit was brought.
    J. E. Rhodin answered, admitting that Gates had transferred to him one of complainants’ notes, as charged in the bill, but averring that he had retransferred to said Gates, before the service of process in this case, and that complainants knew of the retransfer, and denying that he then had any interest in the note.
    The complainants examined four witnesses, —1 Booker Foster, Thomas D. White, H. W. Stricklin, and William Henderson.
    Foster proved that in Feb. 1839, he held title to the undivided half of section 17, and S.E. quarter section 7, township 4, range 2, east, which was part of the land sold by Gates to complainants, and that he still held it; that money could not have been collected of Gates by an execution, in Feb. 1839 ; that the lands conveyed by the deed before referred to had been sold under an execution for his benefit, which issued on a judgment obtained on the 27th day of November, 1838, and he held the coroner’s title to them. That he has since sold the lands and mills to Charles C. Owens, and put him in possession, and that the complainants were not benefitted by such sale'. That some of the property of the complainants had been sold on executions, founded, he believed, on notes given by them for the land and mills ; that when he last heard of Gates he was in Texas ; that líe had heard Gates speak of selling the land, — he said he had taken small notes, which he was compelled to sell to pay his debts, and that he traded them to Ayres, Royston, and Rhodin, and got but little for them.
    White proves that Gates wrote him a letter, dated 9th January, 1840, directing the sale under execution, of the lands conveyed in the deed, stating in the letter that he had deeded the lands since the date of the judgment on which the execution was founded.
    Stricklin, who was clerk of the Circuit Court of Tippah county, proved that on the 9th of February, 1839, there was one judgment in Tippah county against said Gates, unsatisfied, and that was rendered on the 27th of November, 1838, for the use of Booker Foster, for $154 and costs of suit, and that by the coroner’s return on the execution which issued on said judgment, it appeared that the lands mentioned in, complainants’ bill had been sold.'
    Henderson proved that he collected, in the case of Ayres against the complainants before referred to, $98.73.
    Two witnesses were examined for Ayres.
    John B. Ayres proved, that in the spring of 1839 he had the note for $850 in his possession, and that complainant said it was good, if he was, and that the note belonged to Wm. Ayres. That Ayres and himself bought of Isaac Mitchell $120 worth of plank, and he agreed to apply the same to the payment of said note, but having been sued afterwards, refused to do so ; that he presented the note for $500 to complainant, Isaac Mitchell, before its maturity, and he acknowledged it to be just.
    Quillen proved, that he and Wm. Mitchell, in Sept. 1838, executed notes to Gates, with Isaac Mitchell as security, for the purchase of lands and mill; that in Jan. 1839, he sold his interest in said purchase to Wm. Mitchell, and took a bond to indemnify himself against his liability as partner in the purchase.
    The Vice-Chancellor decreed a rescission of the contract between Gates and the complainants, and perpetual injunctions, &c. ; and from that decree the defendant has brought the case to this Court by writ of error.
    
      Gholson, for plaintiff in error.
    In this case it is insisted for the plaintiff in error, William Ayres, that the decree of the Chancery Court, perpetuating the injunction against the judgments in his favor, on two notes against the complainants, and requiring him to pay to the complainants a sum of money collected on one of those judgments, is erroneous, and should be reversed.
    It will be seen, that nearly all the material allegations in the bill are denied by the answer of the defendant, Ayres, and that no proof was taken to sustain those allegations. The Court below, must have proceeded on the idea that the pro confesso against Gates was evidence against Ayres. It is not believed that there is any reason or authority to sustain this position.
    Where parties occupy such a position, that the admission of one would be evidence against the other, the answer of the former will be considered as evidence against the latter, in contradiction to the established rule, that the answer of one defendant is no evidence against his co-defendant.
    In the case under consideration, the admissions or declarations of Gates would not be evidence against Ayres. An assignor of a note has no right, after assignment, and especially after [notice of» that assignment, and an acknowledgment of the justness of the debt to the assignee, as proved in this case, to make admissions prejudicial to the rights of his assignee.
    It will be observed in this, case, that' one of the notes held by Ayres, and on which he had obtained a judgment, was given some months anterior to the contract which the complainants seek to set aside, and that this noté was given under a different contract, in which another party was concerned. Now it is not alleged, that in this former contract, there was any fraud ; it is only stated that this contract was annulled by consent. It is also stated in the bill, that at the time this contract was annulled, this note had been assigned to Ayres, and it appears that the complainants then knew that fact. The complainants and Gates had then no right to annul this contract to the prejudice of Ayres. They seem to have been aware of this, and they state that in their new contract, made in Feb. 1839, they agreed to pay this note to the holder, and the amount of it was considered as part of the purchase-money under the latter contract. Certainly, under these circumstances, equity and justice require that the complainants should pay this note. Yet the Court not only enjoined its collection, but decreed that Ayres should pay back what he had received.
    It will be further seen that the allegation in the bill, that the contract of Sept. 1838, under which the note for $850 was given, had been cancelled, is not only unsustained by any proof on the part of the complainants, but the contrary appears from the testimony of Quillen, who was a party to that contract.
    In this case it will be considered that Ayres -caused both the notes which he held to be presented to complainants, and they acknowledged them to be just. He then obtains a judgment at law, to which no defence is made. He issues his execution, and collects a small portion of the money, and yet his rights, thus acknowledged, are diyested, without any proof by witnesses of most of the material allegations in the bill, which allegations were denied by him, and could have been considered as proved by the Court below only from the fact that a pro confesso had been entered against the defendant Gates.
   Mr. Chief Justice ShaReey

delivered the opinion of the Court.

The appellees filed this bill to rescind a contract for several parcels of land which they had purchased of Benjamin P. Gates. The bill states, that on the 9th of February, 1839, the contract was made by the complainants with Gates for the purchase of the northwest quarter of section twenty-one, and the north-west quarter of section six, in township four, of range two, east; and also an undivided half of the north-west quarter of section seventeen, and the south-east quarter o'f section seven, in the same township and range. Eor the first described parcels they took a deed, which is made an exhibit, and expressess the consideration of 0160, and'contains a covenant of warranty. For the latter parcels, they took a title bond, which is also made an exhibit, and is payable to William and Isaac Mitchell. It expresses the consideration of 04500, being in a penalty of double that sum, conditioned to make title on payment of a certain portion of the purchase-money. This bond was dated on the 5th of October, 1838, and describes the notes taken for the purchase-money. It is stated that this bond, although it bears date prior to the deed, was not delivered until the 9th of February, 1839, and that the consideration of $4500 expressed in it, was in reality the whole consideration for both parcels of land. It is also said, that to suit the purposes of Gates, notes differing from those described in the bond were given. One of the notes for 0850, now held by respondent, Ayres, was given on a former contract for the purchase of the same land by John Quillen an'd William H. Mitchell, which contract had been rescinded by consent, which complainants agreed to pay, as Gates had disposed of it, and could not deliver it on the rescission of the contract. The complainants describe notes outstanding on this contract to the amount of 03861, and aver that they have paid, and destroyed the balance. The notes outstanding, except one of 01000, are held by the respondents as assignees, on several of which partial payments have been made, and on most of them judgments were recovered at May term, 1839, of the Circuit Court, and executions are now in the hands of the sheriff pressing the complainants. The complainants charge that at the time of making said contract, there were judgments against Gates, and that the lands mentioned in the deed had since been sold, and bought by one Foster, and that he falsely and fraudulently represented that he -would be able to make title according to his bond, when he well knew that he could not. They charge that Gates is insolvent, and has removed to Texas, and pray for injunctions and a rescission. Two of the notes filed as exhibits, bear date on the 5th of October, 1838, and one payable on the 25th of December following ; but it is averred in the bill that they were made and delivered on the day of the contract, 9th of February, 1839.

Ayres answered, and denied the rescission of the first contract mentioned in the bill, and calls for full proof. He avers that before taking an assignment of the $850 note, he received assurances from the payees that they would pay it, on the strength of which assurances he supposed also that the $500 note would in like manner be paid, and in fact, that after the assignment of the last note, they promised to pay it; denies the existence of judgments at the time the first contract of sale was made, and avers that the land sold under Foster’s execution, which was for only $160, brought only 015, and that there was collusion between Foster, the purchaser, and complainants. He insists upon his judgment at law, and that he is a bona fide holder of the notes. Ayres sued for the use of N. & H. Weed & Ch. who are also defendants, and by the record of their judgment, it appears that the complainants withdrew their plea and suffered a judgment by default. The answer of Ayres is also adopted as the answer of Weed & Co. ,

Rhodin answered by disclaiming any interest in the note which had been transferred to him, he having returned it to Gates on a failure to get,the amount.

The material parts of the proof will be noticed in the progress of our remarks, both as it may tend to support, and to defeat the complainants’ right to relief.

A complainant who seeks to rescind a contract must show clearly the defect in the title, and that there has been fraud, accident, or mistake, and then the remedy must have been pursued in good time. Moss v. Davidson, 1 Smedes & Marshall, 112; Fletcher v. Wilson, 1 Smedes & Marshall’s Ch. Rep. 376; ib. 134. It is true that if at the time of the decree the vendor is unable to make title, and there is no adequate remedy at law, then a rescission may be decreed. In the case of Hall v. Thompson, 1 Smedes & Marshall, 443, we held, that, to justify a rescission on the ground of fraudulent representations made by the vendor, the representation must be in reference to some material thing, unknown to the purchaser, for want of an opportunity to be informed, or from a confidence which he reposed in the statements of the vendor. In the case of Parham v. Randolph, 4 How. 453, the bill alleged that the purchaser confided entirely in the statements of the vendor, and as they were false and fraudulent, relief was granted. Do the complainants come within these principles ? For several reasons we think they do not. In the first place, for part of the land they took a deed with covenants of warranty. If they purchased the whole at the same time, why, instead of a title-bond, did they not take a deed for the balance ? A fair presumption may, be indulged, that they knew the vendor to be unable to convey. Indeed, they do not aver, that they purchased in ignorance of incumbrances, or a defective title to that part of the land included in the bond. On this subject they are silent. It is true, they charge that Gates represented to them, that he would be able to make a good title, but they do not state, that they confided in these promises. For anything that appears to the contrary, they may have been as well informed of the nature of his title, as he was himself, and equity cannot relieve them against their own folly. So far as this portion of the land was concerned, they were only to receive a title on payment of a part of the purchase-money, and it was incumbent on them to put Gates in default, by offering to perform their part of the contract, before they can ask for a rescission; but no offer, or willingness to perform, is alleged. The removal of Gates to Texas, might furnish them with some apology in this respect, but they do not aver when he went. They may have bad ample opportunity of complying with their contract whilst he remained. His removal may have taken place long after the judgments were rendered against them ; or they may still be able to get a good title. They say, that to the land described in the bond, Gates had no title at the time of making the contract, nor has he now any ; but they do not say who holds the land. It was incumbent on them to have shown the nature of incumbrances or outstanding titles, so that the Court may judge of their validity. 7 Howard, 170. The proof on this subject leaves' the nature of the outstanding title equally uncertain. The only testimony to this point is that of Foster, who was asked, u Who held title in February, 1839, to the undivided half of the northwest quarter of section seventeen, and the southeast quarter of section seven, township four, range two, east ? ” He answered, “ I held title to both quarters, and do at this time ; ” but he does not say what kind of title he held, or how, or from whom he acquired it. It may have been mere matter of opinion with hiVn ; or he may have been under contract to make title to Gates. It was quite an easy matter for him to have disclosed his title, and the failure to interrogate further, looks as though the complainants did not wish- a full disclosure.

There is an allegation in the bill that the land conveyed by the deed was subject to judgments to a large amount. The amount of the judgment liens is not stated. The only judgment proven to have then existed, was one in favor of Foster. The complainants were particular in asking him as to the date of the judgment, but made no inquiry as to the amount. By the testimony of another witness, it appears that Foster’s judgment was for $154, and, under an execution on it, the sheriff sold the land described in the deed, as well as the land mentioned- in the title bond. If Gates had no title to the land contained in the bond, as the bill charges, this sale is unaccountable. Foster became the purchaser at this sale, and afterwards sold the mill tract, mentioned in the bond, to Owens, and delivered him possession. But it is still more unaccountable that Foster, the execution creditor of Gates, should have had his execution levied on land which he testifies that he owned in February, 1839, and that he should have become the purchaser at sheriff’s sale of his own property. He states that he sold to Owens in virtue of the title he held previous to the sale, and also under the title acquired from the sheriff. His statement in this respect must show that the truth of his assertion, that he owned the land in February, 1839, may well be doubted. A scrutinous examination of the complainant’s proof, is well calculated to raise a belief that something has been concealed. It is not characterized by that fairness, which is necessary for one who is seeking relief in a Court of Equity. It does not make a full disclosure. The complainants, after asserting, that the property they purchased of Gates was subject to judgment liens to a large amount, are unable to furnish evidence of more than one judgment, and that one is only for $154. For this small amount, the whole property, for which they had agreed to give $4500, was sold, and bought by the plaintiff in execution, who swears that he was the owner of part of it before. And Ayres avers in his answer, and probably truly, that the whole property was sold for $15. If this averment was untrue, the complainants could have easily disproved it, and although not strictly bound to do so, yet it is strange they did not.

But further, the complainants aver, that the contract for both parcels of land was an entire one, and entered into on the 9th of February, 1839 ; the deed bears that date, but the title bond is dated on the 5th of October, 1838, and they have furnished no other proof on this subject! Apparently, then, they purchased by two different contracts.

There is also an allegation in the bill, that one of the Mitchells and John Quillen had entered into, a contract with Gates for this same land, on the 28th of September, 1839, on which occasion the note for $850 was given. This contract, it is said, was rescinded by mutual consent. Ayres denies this; and Quillen was examined as a witness on behalf of respondents; He states, that, in conjunction with William Mitchell, he made the purchase, and that in the early part of 1839, he sold'out his interest to one of the Mitchells, taking from him a bond of indemnity ; but he says nothing of a rescission of the contract. This allegation is then disproved, and, as the contract with Quillen and Mitchell was made before Foster recovered his judgment, it was not a lien on the property purchased of Gates by Quillen and Mitchell.

Ayres alleges that he was induced to purchase the $850 note, in consequence of assurances that it would be paid. Such assurances given before assignment, amount to a waiver of all equities, and there are circumstances which tend very strongly to prove the truth of this averment. After assignment, the complainants paid him part, and promised to pay the balance. It is usually necessary for a party who desires to rescind a contract, to make his application as soon as he discovers the ground of rescission. By subsequent acts, he may waive his right to have the contract set aside. Pintard v. Martin, 1 Smedes & Marshall’s Ch. Rep. 126. Besides making payments after the notes were transferred, the complainants suffered judgments to go against them, and made no attempt at relief until pressed by executions.

On the whole case, the complainants have certainly not shown themselves to be entitled to a rescission of the contract. To entitle a party to this remedy, he must make out a clear and undoubted case. Hall v. Thompson, above cited. This case, to say the least of it, is very doubtful. There is not that clear showing as to the nature of the contract, the deception practised on complainants, and of the existence and nature of the outstanding title, that would enable us to say that there was either fraud, accident, or mistake, or even an inability in Gates to convey. The complainants seem to rely on the judgment in favor of Foster, as a mere pretext for rescinding the contract. They were largely indebted for the land, and if they had desired to act in good faith, they might have easily extinguished the lien, even if it were such. But, instead of doing so, they suffered the whole property to sell for a mere trifle, and then ask a rescission, loqg after they must have discovered the defect in the title, if there was any.

From these views, it results, that the decree of the Vice Chancellor was erroneous, and it is therefore reversed, and the bill dismissed, as to all the respondents, except as to Gates, as to whom the injunction may be retained for further proceedings, if necessary. -

Clayton, J.', having been counsel, gave no opinion in the cause.  