
    Howell Westbrook v. John M'Millan.
    Columbia,
    May, 1829.
    Where a purchaser of laud has gone into possession, and been in receipt of the rents and profits, he cannot set up a defect in the title of the vendor ás a defence to an action upon a note for the purchase money; although it be such as to affect the whole title, and to intitle the purchaser to a rescission of the contract. As a Court of Law cannot do equal justice to both parties, nor place them in statu quo, it will not interfere, but leave the purchaser to his remedy in Equity. Vide, Carter ». Carter, ante, p. 217, and Bordeaux i>. Cave, ante, p. 249.
    Tried before Mr. Justice O’Neall, at Columbia, Spring Term, 1829.
    This was an action upon two promissory notes, given in' part payment of the purchase money of a tract of land, sold by the plaintiff to the defendant. The defendant had been in possession, under his purchase, for ten years, and had paid somewhat more than one half of the price agreed on; but resisted payment of the residue, on the ground, that the plaintiff could not make a good title to the land. The land in question formed part of a tract which belonged to Jane Harbeson, who joined her husband, Patrick Harbeson, in conveying a moiety of it in fee to her son James Harbeson ; but did not renounce her inheritance, in the form prescribed by the act of 1795, although she had renounced her right of dower upon the conveyance. James Harbeson afterwards sold and conveyed to plaintiff the land in question, being about a moiety of the part conveyed to him by Patrick and Jane Harbeson ; and after the sale to defendant, the plaintiff had filed a bill in Equity, to have the renunciation of dower established as a valid renunciation of Jane Harbeson’s inheritance, which bill was dismissed. .Vide Westbrook v. Har-beson, 2 M‘C. Ch. 112.
    Jane Harbeson died, leaving her husband and four children, including James Harbeson, surviving her: and it was conceded, that on the death of his mother, James Harbeson became intitled to a full undivided moiety of the whole tract; to wit, one third under the conveyance from Patrick Harbeson, and one fourth of two thirds, in his own right, as one of the heirs at law of Jane Harbeson. And it was also admitted, that one half of the whole value of the tract exceeded the value of that portion, which had been sold to the plaintiff, and by him to the defendant.
    The presiding Judge was of opinion, that the defect in the title was sufficient to rescind the whole contract; inasmuch as it affected the defendant’s title thoroughly. It was possible, that on a partition he might not get a single foot of the land which he had purchased. Some other part of the tract might be laid off to him; or the whole might be sold, and instead of land he might be compelled to receive a compensation in money. His Houor held the rule to be, that where the defect destroyed the plaintiff’s title, and did not go to a part only, the purchaser was at liberty to regard the consideration as having entirely failed, and to insist upon a rescission of the contract.
    The jury, under the charge, of the Court, found for the defendant; .and the plaintiff moved to set aside their verdict, and for a new trial on the ground of misdirection.
    Gregg, for the motion.
    Where a purchaser has gone into possession, and derived a benefit from the contract, he cannot afterwards disaffirm it; for a contract can only be rescinded ah initio, where both parties can be put in the same situation in which they stood before. Chitty on Contracts, 188, 276. Hunt v. Silk, 5 East. 449.
    Here the defendant has been in possession for ten years ; and the Court cannot compel him to reconvey. Neither can it compel him to account for the rents and profits. The parties cannot be placed in statu quo ; and to permit the defendant to set up this defence, is to leave him the full benefit of his contract, and at the same time to exonerate him from all its reciprocal obligations.
    It is true, that in the Courts of this State, a purchaser has been allowed to set up a defect in the title of the vendor as a defence to an action for the purchase money, even whilst he remained in possession. But that was only where the vendor had no sort of title in law or in equity; and therefore could have no right either to the possession, or to an account for rents and profits. This certainly is not the case here, and to allow the defence must obviously work gross injustice to the plaintiff. This species of defence is not now regarded by the Courts with great favour. A disposition has more than once been exhibited to restrict its allowance, in a Court of Law, to cases where no injustice is done to the one party, by the endeavour to do full justice to the other. Such is the case of Hood v. Huff, 2 Mill, 159 ; which though not in its circumstances precisely analagous to this case, on principle must exclude the defence now relied on.
    Blanding, contra.
    
    The heirs of an intestate have but an inchoate right-before partition. Rabb v. Aiken, 2 M‘C. Ch. 118. And as no partition has ever been made among the heirs of Jane Harbeson, it is clear that the plaintiff has never, up to this time, acquired such a title, as would render the defendant secure in his possession. The latter agreed to pay his money for a good title; and unless a good title is made to him he has a right to refuse the payment, and to rescind the contract.
    Whether such a defence should be allowed in a Court of Law, or the parties be referred to Equity, is a question on which much may be said on both sides. But it is sufficient that in this State it has been over and over again ruled, that it is within the jurisdiction of the Courts of Law. The case of Hood v. Huff, is neither analagous to this case, nor does it furnish -any principle to restrain the application of the rule. The decision in that case was, that it is not sufficient for the purchaser to impeach the title of the vendor, but he must show a better title in some one else. All this has been fully done here, and the verdict is strictly conformable to law.
   Nott, J.

delivered the opinion of the Court.

This case, in all its essential circumstances, corresponds with that of Bordeaux v. Cave, which has just been disposed of. The defendant has paid about half of the purchase money; he has been in possession of the land about ten years; and yet his title is thought to be insecure. To what extent, however, it is impossible to ascertain. Whether he ought to receive back the money he has paid, or pay up the balance ; whether he must give up the land, and pay the value off the rents and profits, or whether he can be made secure in his title and possession, have not, and cannot be tried in this Court. I do not differ with the presiding Judge, nor with the counsel for the defendant, with regard to the principles of law applicable to the case, but merely as to the mode of redress. It is in vain to attempt to limp on in the dark in this lame and imperfect manner. The rules of law must be adhéred to, and the rules of equity resorted to, where justice cannot otherwise be done.

The line of demarkation between the two Courts must be observed, and if it cannot be marked out with exact precision, it is sufficiently distinct for all practical purposes, and as well defined in this, as in most other cases. I am of opinion, therefore, that the defence cannot be sustained, and that a new trial must be granted.

Motion granted.  