
    JANUARY TERM, 1844.
    Mississippi Union Bank, et al. v. Edward C. Wilkinson.
    As a general rule, when a party makes representations of material facts, upon which another is induced to contract with him, he is bound to make those representations good.
    But if the facts are not known to either party, and each has an equal opportunity of ascertaining their truth, and the representations be not fraudulently made, the contract will not be rescinded, even if they turn out to be untrue.
    Appeal from the Superior Court of Chancery.
    The pleadings are sufficiently stated in the arguments of counsel, and the opinion of the Court.
    Gholson, for appellants.
    This is an appeal from an order of the Superior Court of Chancery, overruling a motion to dissolve an injunction.
    The case was decided on the bill and answers ; no evidence had been taken on either side. The bill charges fraud on one of the defendants, in making the contract for the sale of a dwelling-house, and lots attached, the note enjoined being for part of the purchase-money ; the answer of that defendant fully denied any fraud.
    The bill states, that the defendant, McNeill, assigned to the complainant certain title bonds, apd represented that these title bonds embraced parts of certain lots which they did 'not include. The answer of McNeill denies any such representation.
    The bill admits, that the complainant has accepted and received a title for the dwelling-house and lots, exclusive of the parts of lots which he complains were included in the contract.
    Under the circumstances of this case, it is submitted, that the motion to dissolve the injunction should, have been sustained.
    The allegation in the bill, that the defendant McNeill fraudulently represented a part of a lot as included in the purchase, having been denied, the complainant is compelled to change his ground, and rely on a mistake. Under the facts, as disclosed in the answer of McNeill, which are relied on to show this mistake, it clearly appears, that if the complainant was mistaken, it was his own fault. McNeill, in his answer, states that he told the complainant, at the time of the purchase, what had been told him in relation to the lots, giving it merely as information, and stating at the time he would not be responsible for its accuracy. Certainly a mistake occurring under such circumstances, will not be relieved against.
    The contract between McNeill and the complainant was evidenced by the assignment of the title bonds, and the execution of the note. The bill admits, that the title bonds do not include the portion of the lot which the complainant insists was included in the purchase. Any fraudulent misrepresentation or concealment is denied by the answer, and not proved. The complainant has accepted a title for the property actually included in the title bond, and has paid a large portion of the purchase-money. Under these circumstances, it is contended that the complainant cannot be permit-ted to show that other property, not included in the contract, was agreed to be conveyed.
    There was then, in this case, no failure of title as to a part of the property conveyed or agreed to be conveyed, and of course there can be no ground to decree the complainant a compensation, as prayed in the bill. The offer of McNeill, in his answer, to obtain a title to the part of the lot, is not made under any obligation on account of the contract, but gratuitously, and to prevent any litigation or dispute, as stated in the answer of McNeill.
    It may be farther remarked, that the bill is filed solely with a view to an alleged fraud ; there is no proof to sustain it; on the contrary, the answer is against it. Certainly the complainant, without an amendment of his bill, cannot now resort to another ground of relief, mistake. That was not the matter in contestation. Harrison v. Nixon, 9 Peters, 483. If he had placed his claim to relief in his bill, upon the ground of mistake, that might have been as effectually removed by the answer, as has been the allegation of fraud. To decree upon a matter not placed in issue by the pleadings, is to give the party no chance of defence.
    There were no covenants on the part of the defendant McNeill for title. To make him liable, there must have been either a warranty or fraud ; both these are distinctly abandoned by the counsel in argument. There is no room for a decree against him.
    The boundaries of the lots could have been as well, ascertained by the complainant as the defendant. An inspection of the plan of the town would have sufficed for the purpose, and the refusal to be responsible for the boundaries, ought in itself to have put him upon inquiry. To such negligence, courts give no' countenance or redress. See Jlnderson v. Burnett, 5 How. 167.
    Thus far, the case has been considered as if the controversy were between the complainant and McNeill; but McNeill has in truth no interest in it, and we will proceed to show that those who hold the interest occupy'a much higher ground than McNeill. At first it was received as collateral, but after the promise of Wilkinson to pay it, absolutely. The note, the payment of which is enjoined, was transferred to Addison, Clendenin & Co., to pay or secure a debt due to them from McNeill. They applied to Wilkinson to know if the note would be paid. He offered to give them a bill at six months for one half, and his note at twelve months for the other half. They accepted the proposition ; the bill for $1500 was drawn and paid. This, from the date of the letters, occurred about September, 1840. Yery nearly twelve months afterwards, during which time the indulgence had been given to Wilkinson in pursuance of the contract, to wit, on the 17th of August, 1841, he informed them that the residue of the note would not be paid, because, of a defect in the title. The injunction was served on the 31st of May, 1841. Now by the contract for the delay, which Addison, Clendenin & Co. had made with the complainant, 'they had made the debt their own, and had released Watson and McNeill from the debt due from them. Will it be permitted that by the act of Wilkinson they shall have lost their remedy against Watson and McNeill, and that they shall not hold the complainant bound ? It is true, that they at first occupied the place of Watson and McNeill; but when they made a new contract with Wilkinson, .extended the time of payment to him, and thereby released Watson and McNeill, a new relation grew up between them and Wilkinson. He became their debtor. They parted with their property, their recourse against Watson and McNeill, upon the faith of this argument, and he became directly liable to them. They are thus fairly within the range of the principle, established in that class of cases, which holds, that if one is induced to accept an assignment of a paper security, by the promise of the maker, it is a waiver of all equities on the part of the maker against the' payee. See 1 Wash. Ya. Rep. 296, 389 ; 2 Rob. Prac. 141 ; 4 How. 161. It is most manifest that they have been misled by the promise, and that their debt is lost) unless the complainant be compelled to comply with his argreement.
    If it be said that these facts, as stated in the answer, are not responsive to the bill, and therefore not evidence ; the reply is, that the correspondence appended to the answer, containing the letters of the complainant, affords full proof of the facts here stated. The individual interest of Addison, Clendenin & Co., in this note, amounts to about two thirds of it, and they are bound to pay the whole amount, when collected, to other creditors of Watson and McNeill, who have likewise lost their remedy against their original debtors, by relying on the promise of the complainant.
    But if we are wrong in all this, and the complainant is entitled to some relief, to what extent can it go ? He has never been disturbed in his enjoyment of any of the property. There are no houses upon that part of the lot which is not included in the conveyance ; it is a part of the garden. The Complainant himself says, he does not wish an entire rescission of the contract, but prefers compensation. If he is entitled to that, how is it to be adjusted ? The ground of fraud is waived in the argument, and the right to relief is placed upon the mutual mistake of the parties. In such case, a fair compensation, not vindictive damages, is all that could be asked. Now the part to which title is alleged to have failed, is one third of the lot, though stated in the answer to be less; that could form but a small portion of the value of the whole, a‘s none of the buildings are upon it. Grant, however, that its value is one sixth of the whole, still the injunction ought not to be retained for the whole amount. It should be dissolved as to all except a sum sufficient to insure the compensation, and the balance held up until the value can be ascertained.
    But the answer alleges, the ground can be bought for a mule, and this is responsive to that part of the bill which charges the value of the lot.
    But it is submitted, that there is no reason for retaining the injunction for any part, and that it should be dissolved, and the bill dismissed.
    
      W. R. Miles, for appellee.
    This bill is filed to enjoin the payment of a portion of the purchase-money of three lots of land -in the town of Holly Springs. The gravamen of the bill is a failure of title to one of the lots, which is necessary to the beneficial enjoyment of the others. A fraudulent misrepresentation of the title of the vendor, McNeill, is alleged by the bill. All fraud is denied by the answer ; bat the defectiveness of title, as alleged in the bill, is admitted.
    Now it is respectfully insisted, that a payment of the purchase-money will not be enforced in this case, until the vendor shows himself able to make a title.
    His declaration in the answer, that he is able to make a title, will not suffice. He must show, by an exhibition of his title papers, that he is in a condition to make a perfect title.
    This being an executory contract, is not within the principle of cases decided in 5 How. Rep.
    Indeed it might be contended, on the strength of the case of Par-ham et al. v. Randolph et al. 4 How. Rep. 435, that the entire contract should be rescinded. Here, as in that case, the title has failed to a portion of the property which formed the main inducement to the purchase ; and although all fraud is denied, yet the equity of the bill rests not so much upon the ground of absolute and intentional fraud on the part of the vendor, as upon his inability to comply with the terms of his contract.
    Deprived of the lot to which the vendor had no title, the remaining lots would be comparatively valueless in the hands of the complainant, and certainly never would have been purchased.
    Thompson, on the same side.
    The complainant contracted with Daniel McNeill. Those claiming under McNeill are bound by the admissions in his answer. See Fitch et al. v. Stamps, 6 How. Rep. 487.
    It is apparent from the answer of McNeill, that there was a gross mistake in the contracting parties in relation to the groupd embraced in the title bond, and for this defect of title, McNeill, when sued by Bayless, who assigned him the bond, attempted to defend at law ; but as there was not a total failure of consideration, he could not defend successfully at law ; the complainant may nevertheless obtain relief in equity. The title bond was on T. J. Word and Byrd Hill, and it appears that at least one third of the garden purchased by complainant was not embraced in the title bond, though represented to him by the vendor to be so embraced.
    The Chancellor, in his opinion on overruling the motion to dissolve the injunction, from which order this appeal'is taken, observes (as his notes filed in the papers in the Chancery Court show), and as we think, rightfully, “ The complainant charges that McNeill represented that these bonds embraced the whole of the lots which "he intended to purchase, but that they fell short of it; that about one third of the garden was not embraced. Defendant says he did not know these facts except by information, and that he so represented to complainant. A party who makes a representation, whether in good or bad faith, upon the faith of which another deals with him, is bound to make that representation good.” The statement of McNeill, that he has since obtained a right to this part of the premises, and is willing to have it conveyed to complainant, shows that he knew the contract was made with the understanding and agreement that-this part of the garden was covered by the title bond, and he should be held to this acknowledgment, and should be required to produce the deed, that the Court may judge of it, and compel him to make the conveyance before the injunction is dissolved.
    When the bill alleges a representation was made as to title, &c. and it was untrue and fraudulent, and it seems in fact untrue only, and not fraudulent, still if the party would be liable for the untrue representations stated in the bill, the allegation would he broad enough, and sufficient to afford relief on the facts, for the major must include the minor.
    
      Gholson, in reply.
    The counsel for the complainant contends, that if the representation be untrue, though not fraudulent, the party is entitled to relief. This is shifting his ground to a point not covered by the pleadings.
    The kind of misrepresentation which entitles a party to relief, must be of something material, not a mere opinion in a matter equally open to both parties for examination and inquiry. When neither party is presumed to trust to the other, but to rely on his own judgment, there is no room for equitable interposition. 1 Story, Eq. 206. This doctrine forcibly applies in this case. Mc-Neill gave his information to complainant, but told him he would not vouch for its truth. The truth was equally open to complainant for examination and inquiry. A search into the plan of the town, and inquiry of those who lived adjoining, would have ascertained the truth. It was the party’s own negligence to have trusted to the representation, and a court of equity will not now grant him relief. 1 Story, 210, 211.
    It is submitted, on the whole case, that the complainant’s injunction should be dissolved.
   Mr. Justice ThacheR

delivered the opinion of the Court.

, This case comes up by an appeal from an order of the Superior Court of Chancery, overruling a motion to dissolve ah injunction.

The motion was decided upon the bill and answers alone. By the bill, fraud is. charged upon the defendant McNeill, in the sale to complainant of certain lots of land in the town of Holly Springs, numbered 54, 55, and 56, with a dwelling-house situated upon one of said lots j and, upon this ground, a note, upon which a balance of the purchase-money was due, is sought to be enjoined. This fraud is charged to consist in false representations of the quantity of land intended to be conveyed, jyhich is alleged to have fallen short of those representations. -The note was made payable to the Mississippi Union Bank, for McNeill’s purposes of discount, which, however, were never 'effected, and it was assigned by him to Addison, Clendenin & Co. in payment of a debt of Watson and McNeill. These assignees entered intp an agreement with the coni-plainant in respect to the payment of the note, by which about a year’s delay of payment was allowed him, and, in the mean time, a partial payment of $ 1500, was made by him. At the expiration of this time, this bill was filed. McNeill, in his answer, denies the allegation of fraud. He denies that he contracted with the complainant for the sale of the lots mentioned in the bill, but .declares that he assigned to him, for the consideration of the note, his interest in the title bonds of certain persons, to lots of land in the town of Holly Springs, without warranty of title. . He denies that he made any representations in regard to the quantity of land embraced in-the title bonds, other than what he stated, at the time of the contract, to be from the information of others, and for the truth of which he also then declared he would not be responsible.

"Without extending our inquiry into some investigations which the features of the bill and answers seem to present, we are of opinion, that upon the well settled principles of equity, the order in this case was erroneous. The general rule, that where a party makes representations of material facts, upon which another is induced to contract with him, the former is bo.und to make those representations good, with some exceptions, as where a defect is open equally to the observation of both parties, &c., is true. But this case does not come within this rule. The representations of McNeill were stated by him to be merely the repetition of what had been represented to him by his assignors of the title bonds, and these were distinctly guarded by a reservation that he would not undertake to be responsible for their correctness. Indeed, he may be said to have made no representations of his own upon the subject. The complainant cannot, therefore, be looked upon as having been deceived by false representatigns, but might, in truth, be considered as having been put on his guard against the quantity of land embraced in the title bonds. It does not appear that the numbers of the lots had relation to the plat of the town of Holly Springs, or to some private plat. Yet let this be as it may, the description of the land was not the description of the defendant, McNeill, but of other persons, who were equally accessible to the inquiries of the complainant as well as the defendant, and there was certainly nothing in the statements of McNeill likely to mislead the purchaser. He purchased, therefore, with as full a knowledge of particulars as existed in his vendor, the defendant, McNeill.

The decree of the Chancellor, in overruling the motion to dissolve the injunction, is therefore reversed, and the inj unction jlis-solved.

Judge Clayton, having been counsel in the Court below in this case, gave no opinion.  