
    Executors of Isaac Bordeaux v. Berry M. Cave.
    Columbia,
    May, 1829.
    Proof that a promissory note was made for payment of the purchase money of land, without producing a conveyance, or any other evidence of the terms of the contract, is not sufficient to establish an implied warranty of title, so as to enable the purchaser to set up a defect in the title of the vendor, as a defence to an action upon the note.
    A defect in the title of the vendor of land cannot be set up as a defence to an action upon a promissory note for the purchase money, where the purchaser has been in receipt of the rents and profits from the time of his purchase, and has never been disturbed in his possession. If there is any apparent outstanding title which threatens to disturb his possession, he may be relieved in Equity: and as a Court of L; w can neither compel an account for the rents and profits, nor decree a restitution of the possession to the vendor, it will not inteifere for the relief of the purchaser.
    The practice of permitting a purchaser of land to set up the want of a good title in the vendor, as a defence to an action for the purchase money, before eviction, is founded on the equitable character of the defence; and must be confined to those cases in which a Court of Law is competent to enforce mutual justice between the parties. Vide, Carter v. Carter, ante, p. 217. and Westbrook v. M'Millan, post, next case.
    Tried before Mr. Justice Q’Neall, at Barnwell, Spring Term., 1829.
    This was an action of assumpsit upon a promissory note, payable to plaintiff’s testator. The defence relied on was, that the note had been given for the purchase money of a tract of laud, the title to which was defective.
    The defendant proved, that about the date of the note, he purchased a tract of land from the testator, at a price corresponding with the aggregate amount of this and two other notes of the same date, which were also now in suit. But no conveyance was produced ; nor was there any evidence of the terms of the contract, except as to the price. He then gave in evidence the copy of an original grant to Daniel Bordeaux and Robert M'Lewrath, dated in May, 1786, covering the tract purchased by the defendant: and proved that Daniel Bordeaux died, leaving two children, Isaac Bordeaux, the plaintiffs’ testator, and Mrs. Juhan, who had also died, leaving her husband, Alexander Juhan, and several children, some of whom were still minors, surviving her: that Robert M'Lewrath died in 1793, .leaving several children, some of whom were minors: and that ....... , there was a continued series ot minorities among the persons iutitled to distribution of his estate, from his death to the. trial of this action. '
    In reply it was proved, that the defendant had been in receipt of the rents and profits of the land from the date of his purchase in 1820; and that he had remained in undisturbed possession of the land to the present time.
    The plaintiffs then gave in evidence a deed from the sheriff of Barnwell District to Alexander Juhan, dated in 1803, conveying Robert M‘ Lewrath’s moietv of several large tracts of land, which h i ! been held by him in common with Daniel Bordeaux, among vt inch was included the tract, of which the laud purchased by defendant was a part. The deed recited a judgment in the Court of Common Pleas for Orangeburgh against the administratrix of M'Lewrath, execution issued thereon, and a regular levy and sale: but neither the judgment nor execution were produced. The execution of the deed, however, was fully proved. The plaintiffs also introduced the record of certain proceedings in the Court of Equity for Barnwell District, on a bill filed by the heirs at law of Robert M‘Lewrath, against Juhan and the heirs at law of Daniel Bordeaux, in which, amongst other things, the title to the lands held in common by Daniel Bordeaux and Robert M'Lewrath had been drawn in question. And it was admitted, that the bill had been dismissed by the Court of Equity, and the decree of dismissal affirmed by the Court of Appeals; but neither of the decrees were produced. The Commissioner in Equity testified, that the decrees were not to be found in his office; the Circuit decree having, he believed, been forwarded to the Court of Appeals by his predecessor, and not returned, and the decree of the latter Court never having been filed in his office.
    The plaintiffs then introduced the minutes of the Court of Common Pleas for Barnwell District, in which appeared the entries of two orders made in a cause, in which Daniel Bordeaux was styled plaintiff, and Alexander Juhan defendant. The first of these orders was entered at spring term, 1804, and directed a writ of partition to issue to certain commissioners therein named, to make partition of “ the lands in question,” between the plaintiff and defendant, and ordering the commissioners to return their proceedings at the next term. The second order, which was made at the succediitg term, was a confirmation of the return “ made by the commissioners,” declaring the same final and conclusive, between the parties. The clerk of the Court was examined, and testified that he had made due search in his office for the return of the commissioners above mentioned, but had not been able to find it.
    The plaintiffs then proved that Alexander Juhan had for many years been in possesion of that portion of the Bordeaux and M‘Lewrath lands, in which the tract purchased by the defendant was comprised ; and had always been reputed the owner of that part, until the claim, set up within a few years past, by the heirs at law of Robert M‘Lewrath.
    Alexander Juhan was tendered as a witness to prove, that the salé to defendant, as well as other sales of different portions of the same lands, had been made by Isaac Bordeaux with his acquiescence, and in pursuance of an arrangement between them ; and that he had frequently offered to defendant to confirm his title. His competency was objected to on the ground, that he had become security for costs in this case for one of the plaintiffs, who was absent from the State, and was therefore directly interested in the event of the suit. The objection was sustained, and the witness excluded.
    Patterson, for the defendant,
    insisted that he was intitled to a verdict, notwithstanding the evidence adduced. There had been no sufficient evidence to divest the title of the heirs at law of. either of the original grantees. The sheriff’s title was unavailing, unless there was a judgment and execution to authorize a sale by him ; and neither judgment nor execution had been produced, nor had even a ground been made for the admission of secondary evidence of their existence: for there was no proof, that search had been made for them in the proper place. Admitting, however, that the heirs of M‘Lewrath were out of the question, still the title of Mrs. Juhan’s minor children was unimpeached; the statute of limitations did not affect their right, and their disability not only protected themselves, but also protected those of full age, who held in common with them. It was said there had" been a partition, but it did not appear that it was a partition of any lands now in question; still less did it appear, that Juhan had, by the partition, acquired a title in severalty to the tract purchased by defendant. For aught that appeared the title of' the minors to that tract still subsisted ; and the defendant, after paying his money, might be compelled to give up the land, and account for the rents and profits to the real owners. This the law would not force him to do, and by the well settled doctrine of our Courts, he had a right to refuse payment of his note.
    Bailey, for the plaintiffs,
    contended that the evidence, although not sufficient to sustain an action of tresspass to try title, was nevertheless amply so to intitle the plaintiffs to a verdict in the present action. At common law, a purchaser could not set up a title in a third person, until lie bad been evicted. Our Courts had departed from the ancient rule, and in doing so had introduced greater mischiefs than they had endeavoured to avoid. This had been at last discovered, and the Courts had for some time evinced a disposition to restore the old rule. It was now settled, that it was not sufficient to show, that the seller’s title was defective, but the purchaser must prove an absolute good title in some third person, by which his own possession was likely to be affected. Hood v. Huff, 2 Mill, 159. It was not therefore incumbent on the seller to prove a good title in himself, but it was enough if he could throw sufficient doubt upon the title set up by the purchaser, to make it apparent that no danger to his possession was really apprehended from that quarter. This rule was just and reasonable. The purchaser of hind ought in common prudence to examine the title before he makes his contract: and if lie does not, or wilfully buys a bad title, then it is neither just nor reasonable, that he should be allowed to complain of it, whilst he remains in possession of the land, and enjoys its fruits; unless he can show a very substantial ground for apprehending that he may be deprived of his possession. Besides, a defence of this kind most generally takes a plaintiff by surprise, of which this very case was an illustration. This action had been tied up, for several years after its commencement, .by an injunction granted in the equity suit between the heirs of M‘Lewrath and Bordeaux; which was always understood to involve the only defence to the present action, and to be conclusive of its fate. It was never surmised, that there was any other defence to this note, than a supposed title in the heirs of M'Lewrath ; which was the principal subject of contest in that suit. And yet when that defence had been overthrown by the decree; the claim of the M'Lewraths, after the fullest investigation, utterly rejected; their bill dismissed, and the injunction dissolved ; and the plaintiffs might reasonably have expected to take a verdict, as a matter of course ; they were suddenly called upon to fight over the whole battle again ; to prove that, which had already been most fully proved ; and, at a moment’s warning, to make out a title with just such evidence as happened to be within reach, without time for searching up old records, or supplying secondary evidence of such as might be mislaid.
    Now what was the evidence ? The defendant proves a grant of the land fifty years old, and rests his defence on this bald title, after proving a continued chain of minorities among the heirs at law of the grantees, so as to guard against the operation of the statute of limitations. To meet this defence, the plaintiffs divest the title of one of the grantees, by a conveyance from the sheriff to Alexander Juhan, who offers, in open Court, to confirm the defendant’s title; and whose title was barred by the statute of limitations independently of any confirmation. It is true, that neither the judgment nor execution were produced, but that did not remove the doubt thrown upon the title set up by defendant : since it was far easier to account for the loss of an old record, than for the existence of a sheriff’s deed, which had been acquiesced in for nearly thirty years, if there had been no judgment to warrant it. Besides the dismissal of the bill filed by the heirs of M'Lewrath was a strong circumstance to show that they had no title; although the decree having been mislaid, the grounds of it were not precisely known. The plaintiffs next prove, by the highest evidence, that there had been a partition of lands between Bordeaux and Juhan ; and although it did not appear distinctly, that this partition was of the lands mentioned in the grant, or that the traetsold to the defendanthad been allotted to Juhan ; yet all the presumptions were in favor of that conclusion, and there could not be a moral doubt on the mind of any one, that such was the fact. But yet, notwithstanding all this, the jury were called upon to say, by their verdict, that the defendant holds by a title so precarious, and the danger to his possession is so palpable and imminent, that in common justice he ought not to be compelled to pay for the land ; although he has had undisturbed possession of it for nearly ten years, and has,, most probably, consumed all the timber found upon it that was valuable, and even exhausted the soil itself.
    If the title were in Juhan, a verdict for the defendant would give the latter both the land, and the money he had agreed to pay for it. The jury could not restore the land, nor compel the defendant to account for the rents and profits : and he had acquired a title by possession against Juhan, who could have no relief from any Court. On the other hand, a verdict for the plaintiffs could work no injustice to the defendant. It would simply establish against him the contract, which it is both proved and admitted that he entered into ; leaving him at full liberty to avail himself of' any defence to which he is in right and conscience intitled, by an application to the Court of Equity, where the whole matter might be deliberately investigated, and equal justice done to both parties.
    There was one view of this case, however, which was conclusive for the plaintiffs. It was proved that the defendant had purchased land from the testator, and it might be, that this note was given for the purchase money; but it was not proved that the land had been sold with warranty of title. The conveyance was not produced ; and it was quite possible that the testator had sold only his own right, title, and interest, whatever that was; or, and that was most probably the truth of the matter, he had simply agreed to procure a title to be executed by Juhan. It was incumbent on the defendant to produce the deed. He could not at the same time withhold it, and insist upon a presumption of its contents in his favour. If there was no warranty of title express or implied, then a want of title was no defence, and the plaintiffs must have a verdict.
    Tiie Presiding Judge charged the jury, that theevidence was sufficient, in his opinion, to authorize the conclusion, that the note had been given for the price of the land ; but that the defendant had failed to establish the existence of a paramount outstanding title, so far as the heirs of M‘ Lewrath were concerned. The sheriff’s deed had conveyed all his interest to Juhan: and although the proof of title under that deed was defective, inasmuch as neither the judgment nor the execution had been produced ; yet after an acquiescence by all the parties interested for nearly thirty years, the existence of both might be presumed, particularly in the present action, where the plaintiffs were not required to prove a good title, but the defendant himself was under the necessity of showing a better title in third persons. That if the title were in Juhan, it could not be questioned, that the defendant’s possession was safe; but there had been no sufficient evidence to divest the title of Mrs. Julian’s heirs to one fourth of the land contained in the grant. It might be that Juhan had a good title to the whole : but it had not been made out, even prima fa-cie. Courts of justice could not act upon mere conjectures, however probable; but every legal presumption must be based on facts, which lead, if not necessarily, yet with at least reasonable certainty, to the inference suggested. The evidence in this case could hardly be said to raise the. probabilities in favour of a complete title in Juhan higher, than to exhibit the inadequacy of Court of Law to administer equal justice to both parties; and to induce a regret, that the jurisdiction of this sort of defence to a legal demand had not been left altogether to its appropriate tribunal, the Court of Equity. His Honor left it to the jury to determine, whether, under the circumstances, the defendant was justly intitled to a rescission of the whole contract; or otdy to a discount for the value of so much of the iand, as appeared to be still liable to the claim of Mrs. Juhan’s heirs.
    The jury found for the defendant, generally ; and the plaintiffs moved to set aside, their verdict, and for a new trial, on the grounds taken on the circuit.
   Nott, J.

delivered the opinion of the Court.

This sort of defence has long been allowed to be set up in our Courts of Law. In the ease of Grey v. Handkinson, 1 Bay, 278, which appears to be the first of the reported cases, the Court observe “ that this is a kind of equitable defence which formerly belonged to the jurisdiction of the Coart of Chancery, but that the Courts of Law had lately let the parties into it. in a Court of Common Law as well as in a Court of Equity, on the ground of fraud." So that fraud appears to have been the first pretence for invading this part of the equity jurisdiction. And it further appears from the reasoning in that case, that it is not material, whether the fraud arises from the actual deceit of the vendor, or from a defect in the thing itself. Since that time, a train of decisions have followed, involving the same principle, in which the only inquiry has been whether the title was defective, and the nature and extent of that defect, without stopping to inquire, whether there was not still a class of cases of that description, in which adequate relief could be administered alone in the Court of Equity.

But it does by no means follow, that because such a de-fence may be sustained at law, there may not be circumstances attending it, into which a Court of Law cannot inquire, and to which, when ascertained, the jurisdiction of the Court does not extend. With regard to the case now before us, the evidence of consideration was very unsatisfactory. But as that was a question for the jury, the Court might not perhaps have interfered with the verdict, if it rested alone on that ground. The defence, however, has no such merits as can sustain it in a Court of Law. it does not appear that there was any warranty either express or implied on the part of the seller. There has been no failure of consideration, for the defendant has never been disturbed in his possession. On the contrary, he has been in the receipt of the rents and profits of the land for the last eight years. The elfect of this verdict, therefore, is to exempt the defendant from the payment of the purchase-money, to give him the rents and profits for the time he has had possession, and to leave him still in the possession and enjoyment of it. It is apparent, therefore, that the defence is in the nature of a bill quia timet, which cannot be heard in a Court of Law. if there is any apparent outstanding title which threatens to disturb his possession, the Court of Equity alone can grant relief.

Hitherto, the community has been alarmed at the stretch of power exercised by the Court of Equity; but an assumption of unauthorized power by a Court of Law, is not less dangerous. I am inclined to think, notwithstanding what has been said, that this kind of defence was first allowed from necessity, there being no Court of Equity out of Charleston ; and having found its way into the Court, has gone on without any definite notion of the extent of the relief which could be obtained, until it seems to be thought, that it may be made to extend to any. case where a defect of title can be interposed, without regard to the other circumstances attending it.

There is no doubt, but that the abstract question of title may be as well tried, and indeed better in many cases, in a Court of Law than in Equity; and that as complete relief can sometimes be administered there; as where the extent of the defect of title and the deduction to be made are the only questions presented; or where the title alone is to be determined; because, in those cases, equal justicé may be administered to both partiés'. But when the defendant is in possession, the Court of Law cannot compel him to deliver it up. ’Where he has received the rents and profits, he cannot be compelled to account. In all such cases, where mutual justice cannot be done, the Court ought not to interfere, but should leave the parties to that tribunal to which the jurisdiction of such matters more properly belongs.

It is said that a party on whom a defective title has been imposed, ought not to be driven to a Court of Equity for redress. But it will be recollected that a purchaser may always inspect the title before he purchases ; and if he does not, it is his own fault. The rules of law cannot be changed for his convenience. He must seek for relief where ample relief can be obtained, and not where double justice is administered to one party, and all justice denied to the other.

In the case of Carter v. Carter, which has already been decided during this term, the opinon of the Court has been partially expressed on this subject, and that case may be referred to as constituting our opinion in this, as far as the circumstances; apply.

New trial granted.  