
    Ingram vs. Morgan, Garrett, et al.
    
    1. Morgan conveyed, witli covenants of seizin, ancl right to convey, a certain tract of land, to which he had only a bond for title. At the lime of sale and conveyance he djd not communicate this fact to the vendee: Held, that good faith required that he should have informed the vendee of this fact, and the suppression of it amounted to a fraud on the vendee. •
    2. A covenant of seizin made by one who has no title, gives a right of action so soon as the covenant is made, and no eviction as in covenants of warranty is necessary; where the vendor is insolvent, a court of Chancery will enjoin the collection of the purchase money. * .... . .
    3. Where a note was delivered over without cndorseiqentin discharge of a pre-existing debt, a promise made to the holder to pay it, made in ignorance of the failure of the consideration thereof, does not bind the maker. ...
    This bill was filed in the Chancery Court at Sommerville, by Ingram against H. & J. H. Morgan and Garrett, to obtain a perpetual injunction against the enforcement of a judgment.
    One Rivers, as administrator of Tyree Rhodes, deceased, sold a tract of land to H. & J. H. Morgan, and gave- them a bond for title when the purchase money should be paid. The Morgans paid a portion, leaving the sum of $1000 unpaid. In this state of the title and of the progress of payments, they sold the land to complainant. They gave him a deed which con-tamed covenants of seizin, of right to convey, and of general warranty, and he took possession of the land. The Morgans did not communicate to Ingram the fact, that they had nothing but a bond for title,'or that there was a balance of $1000 of the purchase money unpaid; nor does it appear that Ingram was aware of these facts. The Morgans being indebted to Garrett, delivered to. him one of the notes, without endorsement, in discharge of the debt. Ingram was notified by Garrett, that he had taken the note. Ingram in ignorance still of the state of the title, and of the non-payment of part of the purchase money, paid a portion of the note to Garrett, and promised to pay the balance: subsequently ascertaining the facts, he refused to pay the balance. The Morgans had become totally insolvent. Garrett, thereupon, "instituted a suit in 'the Circuit Court of Hardeman county against Ingram in the name of H. & J. H. Morgan, for his use. • -A judgment was rendered against Ingram for the sum of $800, sxif.fi. fa. issued.
    Ingram filed this bill in February, 1839, against Garrett and Morgans. It was answered by J. H. Morgan and Garrett. Replications were filed and proof taken. In addition to the above stated facts, it appeared that the land belonged to Tyree Rhodes, and that he dying intestate the land descended to his heirs; that Rivers married one of the daughters of Rhodes, and had sold the land to the Morgans and taken the notes payable to the administrators of Rhodes; that the administrators of Rhodes had obtained judgment on one of the notes against the Morgans, and execution having been returned unsatisfied, a bill was filed by them to subject the land to sale for the satisfaction of the unpaid balance of the purchase money, and offering a deed when the money should be paid.
    The cause came on to be heard before Chancellor McCam-bell, at the November term, 1842. He perpetuated the injunction which had been previously ordered. The defendant Garrett appealed.
    
      H. G. Smith, for complainant.
    
      W. T. Brown, for defendant.
   Reese, J.

delivered the opinion of the court.

Ingram purchased of Morgan a tract of land, and took from him a deed of conveyance, with covenants of seizin, title to convey, and general warranty, and he went into possession. At the time of the sale Morgan had no' title, except a bond from one Rivers, whose wife was one of the heirs of one Rhodes, (these heirs being owners of the land,) and Morgan did not communicate to complainant, that he had no title, or a title so defective as almost to amount to no title. Rivers is dead, and more than a thousand dollars of the consideration from Morgan to the administrators is unpaid, and legal proceedings to subject the land to the payment ofit havebeen commenced. Morgan is utterly insolvent. The last of the price or consideration to be paid by Ingram to Morgan is a note, which Morgan passed by delivery, and without endorsement, to Garrett, in payment of a precedent debt. Upon this note Morgan, for the use of Garrett, has obtained a judgment at law, and this bill is filed to enjoin that judgment. And the first enquiry is, whether complainant, as against Morgan, is entitled to relief in equity? and we think he is; 1st. The confidence between vendor and vendee requires where such defects of title as those of the case before us existed at the time of the sale, that they should be stated by the vendor to the vendee, and the suppression of them amounts to fraud. 2ndly. Upon the covenants of seizin and title to convey, Ingram has a present and active right of action at law against Morgan for breaches of those covenants of the deed, and he could not fail to recover to the extent of the unpaid consideration due to the ad ministrators. This indeed would repel him from a Court of Chancery, but that Morgan is admitted to be utterly insolvent, and a judgment against him would be worthless. This differs from a covenant of warranty, where there is no present right of action, and can never be till eviction, which may never take place; and where, therefore, a Court of Chancery will grant no relief against the payment of the consideration, on the joint grounds of a defect of title, and the insolvency of the vendor. Does Garrett stand in a better situation than Morgan in the present case? We are of opinion that he does not; he received the note in payment of a pre-existing debt, and without endorsement. He has not the legal title to the note, and did not receive it in the due course of trade. There is no principle of public commercial policy to come in aid of his claim, and the circumstances under which he took the note are not identical with those set forth in the case of Ingram vs. Vaden, (3d Hump. 51.) so as to repel the complainant from setting up his equity as against him. The promises he made to pay, in ignorance of his condition with regard to title, will not prevent him from resisting the payment of the note. So far as Garrett has any equity, it is founded upon the satisfaction of his pre-existing debt against Morgan, and he has no legal title. Ingram’s equity is prior in point of time, and must prevail in point of right. Let the decree of the Chancellor be affirmed.  