
    GARDNER JONES against ISAAC C. EDWARDS AND J. W. POTTER.
    Where a bill, for an injunction, alleged that the notes sought to be enjoined, were given as consideration that the defendants would procure and make him a fee simple title to a tract of land, in which they then had only an estate pur autre vie, which they denied, and, in fact, were .unable to procure and make such title, and plain tiff’s allegation was corroborated by the terms of a deed, which they did make, and tire defendants answered evasively, insisting upon an unequal and improbable version of the transaction, the Court ordered the injunction to be continued to the hearing.
    Appear from the Court of Equity of Greene county, from an interlocutory order dissolving an injunction.
    Stephen Coward died intestate, seized in fee of a tract of land, in the county of Greene, leaving his wife Martha surviving, also two children, Martha and Mary, infants of tender -age, who died soon after the death of their father, leaving their mother, the said Martha, them surviving, to whom the said tract of land came for her life. Upon the death of these two infants, the remainder, in fee, descended to Pearcy Potter, who intermarried with the defendant, John W. Potter, and who was sister of Stephen Coward, Caroline Edwards, a niece of the said Stephen, who intermarried with the defendant, Isaac C. Edwards, John Joyner, a nephew of the said Stephen, Lydia Ormond and Susan Ormond, nieces of the said Stephen, Louisa Ilart, a niece, who intermarried with William T. Ilart, Jane Dunn, a nieee, who intermarried with ■ Jeptba Dunn, Elizabeth Spivey, a niece, who intermarried with Ephraim Spivey.
    The plaintiff, Gardner Jones, intermarried with the widow of the said Stephen Coward, and took .possession, and occupied with his wife, the premises aforesaid. On the — ■—— day of -, the plaintiff and his wife, Martha, sold and conveyed to the defendants, Edwards and Potter, her life-estate in the lands, for the sum of $800, and took the note of each for $100.
    The bill alleges that., within one month after the sale, by the plaintiff and his wife, of her interest to the defendants, as above stated, they (the defendants) contracted with the plaintiff, for the consideration of $1850, to procure the interest of all the other heirs in the remainder aforesaid, and to convey it to the plaintiff; that in pursuance of this contract, and in part execution thereof, he paid to the said Edwards and Potter the sum of $1850, in the following manner; he gave to Edwards his note, or bond, for $525, with Edward Coward as surety, and for'the remainder thereof, he surrendered to him the note for $400, which he had obtained from him for his half of his wife’s life-estate, and to Potter, he gave his own note for the sum of $74, with Edward Coward as surety, and a note for $435, on Elias J. Blount and Wade Butts, and for the balance, surrendered to the said Potter his own note for $400, given as above stated ; and in further pursuance of this contract, they executed to him a deed, bearing date the 13th May,'1857, in which they pretended to convey to him the Interest, of themselves and wives, in the land in question, which was signed and sealed by themselves and wives ; that at tire time of the execu'ion of this deed, it was expressly understood and agreed, that the defendants would procure a fee simple title, to be made to him by all the joint owners of the remainder. The deed, above mentioned, is referred to in the plaintiff’s bill, and made a part thereof, and in if, the defendants, for themselves, their heirs, &c., covenant to, and with the plaintiff, to “ warrant and forever defend the right and title of all the aforesaid tract of land, free and clear from the lawful claim, or claims, of any and all persons whatsoever.”
    The bill further alleges, that although by the form of the deed, afee simple, in the whole, is conveyed, yet, as the defendants only had the interest which he sold them, and their wives declined conveying any other estate, he, in fact, has got back only what he conveyed to them, and is loser $1050.
    lie alleges that he has frequently called the defendants to fulfil their contract, but that they refuse to do so, denying that such a contract exists, but that if they were disposed to comply, they could not do so, because the owners of the remainder are unwilling to let them have it.
    The bill alleges that the defendant, Edwards, has commenced a suit, at law, upon the bond, for $525, and that Potter threatens to commence an action against Blount and Butts on the $135 note, and also against the plaintiff for the $71 note.
    The prayer is for an injunction, to restrain the defendants from proceeding at law npon these notes; also to restrain them from passing them by endorsement to any other person, and. for general relief. The injunction was issued, in vacation, as prayed for, and being executed, was returned to the next term of the Court.
    The defendants, in their answers, admit that they agreed to resell to the plaintiff the estate, for the life of his wife, but they deny that they contracted to sell him the remainder in fee, or that they undertook to procure the heirs-at-law to execute deeds for the same; on the contrary, they say, in their answers, that they agreed to sell only whafsover interest they might have acquired, by virtue of their intermarriage with their wives, and that after the execution of the deed by them, at the earnest request of the plaintiff, they permitted their wives to add their signatures aud seals to the deed to the plaintiff, but that this was no part of their contract with him, and was done merely to gratify him. They admit also, the payment of the $1850, as set forth in the bill.
    Upon the coining in of the answers, the defendants moved to dissolve the injunction, which was ordered by his Honor; from which the plaintiff was allowed to appeal.
    No counsel appeared for the plaintiff in this Court.
    
      J. W. Bryan, for the defendants.
   Pearson, C. J.

The plaintiff alleges that, for the consideration of $1850, the defendants agreed to resell to him the estate for the life of his wife, which he had sold to them for $800, and also to sell to him the entire remainder in fee; and that they undertook to procure the o.her tenants in common of the remainder, to execute good and sufficient deeds. He exhibits, as a part of his bill, the deed executed by the defendants, to which the signatures and seals of their wives are annexed. The defendants admit that they agreed to resell to the plaintiff the estate for the life of his wife, but they deny, that they agreed to sell to him the remainder in fee, and undertook to procure the heirs at-law to execute deeds; on the contrary, they aver that, besides the life-estate, they contracted to sell only “ whatsover interest they might have acquired hy virtue of their intermarriage, the one with the sister, and the other with the niece, of Stephen Coward,” and they say, that after the execution of the deed by them, at the earnest request of the plaintiff, they permitted their wives to add their signatures and seals to the deed, but this was no part of the bargain, and was done merely to gratify the plaintiff.

The defendants, according to their own showing, had no estate or interest in the remainder, and, yet, as they allege, the plaintiff agreed to give them $1850, for the life-estate and their supposed interest in the remainder; that is, he-was to hand them back two notes of $400 each, which was the price they had, less than one mouth before, agreed to give for the life-estate, and, in addition, was to pay them $525 each, and it was no part of the bargain, that the wives should execute the deed !! If this be true, it proves an almost incredible degree of ignorance on the part of the plaintiff, and the defendants must either submit to a like charge of ignorance, or to a much graver one — that of knowingly taking advantage of the plaintiff’s ignorance, and practicing a gross imposition upon him.

The circumstances tend to suggest the inference, that the two $400 notes were not to be paid, and that the plaintiff and his wife executed the deed, to the defendants, in pursuance of an arrangement, by which the plaintiff hoped to acquire the title in fee in his own right, and that the defendants practiced upon his eagerness to effect that object.

There is another fact, which has a most important bearing as tending to prove the allegations of the plaintiff, and in regard to which, there is such evasion in the answer, as to entitle the plaintiff to have the injunction continued until the hearing : the deed is made a part of the bill. In it, the defendants bind themselves, their heirs, &c., to the plaintiff, his heirs, &c., “ to warrant and forever defend the right and title of all the aforesaid tract of laud, free and clear from the lawful claim, or claims, of any or all persons whatsoever.”

The defendants give an explanation, such as it is, of the fact that the deed has the signatures and seals of the wives, but they attempt no explanation of the fact, that although, as they say, they agreed only to sell the life-estate, and their respective interests, whatever they might be, in the remainder, still they covenant to warrant the title of all of the land in fee simple. This is a palpable evasion.

If from ignorance, on both sides, the matter has become thus confused and entangled, it may be best to execute mutual releases, and thereby put themselves in statu quo.

The order, in the Court below, must be reversed, and the injunction continued until the hearing.

Pjer Curiam, Decree accordingly.  