
    *Price’s Ex’ors v. Ayres.
    January Term, 1854,
    Richmond.
    Sale of Land — Injunction against Collection of Purchase Money — Dissolution—Case at Bar. — W being the owner of a lot in Danville, made a verbal contract for the sale of it to S, and S sold to A, who received a conveyance for it from W with general warranty, and executed his' bonds to S for a balance of the purchase money. At the time of the sale the lot was made more valuable by the change in a street, which street was after-wards returned to its original location by the town authorities. S having made no representations on the subject to A, having been guilty of no fraud, and having made no warranty of title, is not liable to A for the damage he has sustained; and A cannot enjoin the collection of the purchase money.
    Samuel Ayres filed his bill in the Circuit court of Pittsylvania, in which he charged that in 1840 he purchased of a certain Byrd Smith a lot of ground in the town of Dan-ville for the sum of six hundred and seventy-five dollars, and for a balance of the purchase money he executed to Smith two bonds, one for fifty dollars and the other for one hundred and twenty dollars; and that these bonds had been assigned by Smith to Daniel Price, who had recovered judgments upon them. He further charged that at the time of his purchase, commissioners acting under the authority' of the corporate authorities of Danville, had altered the streets which bounded the lot so as to add thereto a corner which had been cut off as the street had been before located, and thus made the lot square or nearly so, in form. That he purchased the lot in this form upon the express assurance and representation of Smith that the street had been so altered and wquld be permitted to remain by the corporate authorities: But that soon after his purchase the said authorities rescinded their order, and reinstated the street in its former location, and thus cut off one corner of the lot, *greatly diminishing the value thereof; and that the ground thus cut off is no part of the lot in his possession, and conveyed to him by Paul ID. Woodward and wife who sold the lot to Smith, and at his request conveyed to the plaintiff. And making Smith and Price parties defendants, he asked for an injunction to the judgments, that the damages he had sustained might be set off against the judgments, and for general relief. The injunction was granted.
    Smith in his answer said, that Woodward being indebted to him, proposed to pay him by selling him this lot. That in this state of things defendant proposed to sell it to the plaintiff, who said he was willing to purchase. That defendant referred him to Woodward for the terms of sale, with the assurance that if they agreed Woodward should convey the title, the defendant pay Woodward, and the plaintiff become responsible to him for the purchase money. That plaintiff was better acquainted with the lot than was the defendant, and made the contract with Woodward for the purchase of the lot, and took Woodward’s deed for it. That defendant accounted with Woodward for the purchase money, and upon a settlement of accounts with the plaintiff, took his bonds for the balance of the purchase money. He denied that he made the representations stated in the bill, that the lot was in a square form or any particular form.
    Price answered, saying that he had purchased the bonds and paid value for them, without notice of any equity or equitable defence which could be set up against them; and that he had no personal knowledge of the facts connected with the sale of the lot, and does not admit them.
    Woodward was afterwards made a defendant by an amended bill, which was taken for Confessed as to him. And Price dying, the suit was revived against his executors.
    *The deed from Woodward and wife to Ayres conveys the lot with general warranty. Woodward was twice examined as a witness. He says he sold the lot to Smith, and that Smith afterwards sold it to Ayres; and that Woodward conveyed to Ayres by Smith’s direction. He states that the street ran at the time of the sale as the plaintiff states in his bill, and that it was afterwards altered. Other witnesses estimated the injury to the lot by the change at forty per cent. Both Smith and Woodward -were insolvent.
    When the cause came on to be heard the Circuit court perpetuated the injunction with costs; and gave the executors of Price a decree over against Smith, for the amount of the judgments and costs. From this decree Price’s executors applied to this court for an appeal, which was allowed.
    Grattan, for the appellant.
    Day, for the appellee.
    
      
      See monographic note on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.
    
   DANIEL, J.

The main allegation, in the bill, on which the appellee sought to found an equity against Smith and his assignee Price, is explicitly denied by Smith in his answer; and Woodward, the only witness examined in reference to the contract between the appellee and Smith, is silent as to any assurances or representations made by Smith in reference to the shape of the lot. It is true the witness says that he sold the lot to Smith and by his direction conveyed it to the appellee; and that in the sale and conveyance it was his design to sell and convey the lot as being nearly in a square form, and as bounded by Wilson street, according to its new course as directed by the corporate authorities of Dan-ville ; but he does not state that Smith made any representation to the appellee with respect to the form of the lot, the course of Wilson street, or the action of the common ^Council of Danville, past or prospective, in regaid to the alteration of said street.

There is thus an entire absence of all proof of fraud or misrepresentation on the part of Smith; and the case made as to the bargaining and contracting between the parties seems to be nothing more than this : that Smith having agreed verbally with Woodward his debtor to take from him a lot in discharge of his debt, agreed with the appellee to sell it to him, with an understanding between the parties that Ayres should become bound to Smith for the purchase money, that Smith should become paymaster to Woodward, and that the latter, who held the title to the lot, should make the deed for it to Ayres.

In a sale of real estate no warranty of title is implied; and in the absence of fraud or concealment by the vendor, he cannot be visited -with losses arising from defects of title, except so far as he has bound himself by covenant or warranty to protect his vendee against them. Commonwealth v. McClanachan’s ex’ors, 4 Rand. 482.

Smith made no warranty, entered into no covenant. He has failed in no engagement with Ayres. He bound himself to nothing more than that Woodward should convey the lot to Ayres. That has been done. Woodward has made a deed with general warranty to Ayres, and he has accepted it.

If therefore the appellee had succeeded in establishing a clear defect of title in a portion of the lot, he would have shown no equity to enjoin the collection of the purchase money he agreed to pay Smith; but his recourse would have been against Woodward upon his warranty: Holman v. Maupin, 3 Monr. R. 380; Koger v. Kane, 5 Leigh 606.

The language employed by Tucker, judge, in delivering the opinion of the court in the case last cited, (with a mere change of the names of the parties,) ^describes forcibly the position of the parties here. As to Smith, the ap-pellee has no claim against him for any defect of title, as we have shown: And as to Woodward, he could have no claim till eviction, in as much as Woodward is asserting' no demand, taking no steps which could be enjoined.

In the view I have taken of the case, there is nothing upon which the jurisdiction of a court of equity can be founded. The remedy of Ayres, if any, is at law by suit on Woodward’s warranty. Whether he could probably make a case at law, is a matter about which we do not deem it necessary to express an opinion. We think he has failed to make any case calling for the interference of a court of equity, and that the chancellor, instead of perpetuating the injunction, ought to have dissolved it, and dismissed the bill, with costs, without prejudice to any suit at law that the appellee might be advised to institute against Woodward on his warranty.

The other judges concurred in the opinion of Daniel, J.

Decree reversed.  