
    Allen Jenkins vs. William W. Whitehead.
    W. leased to J. a tract of land for ninety-nine years, and placed J. in possession, J. being fully acquainted with the nature of W.’s title at the time ; J. afterwards refused to comply with his contract, and abandoned the possession of the premises; whereupon W. sued him, and recovered judgment at law for the consideration of the lease. J. then filed a bill to set aside the lease, recover back the money he paid on it, and to enjoin perpetually the judgment, on the ground of the statute of frauds and the defect of "WVs title ; it was shown that W. was wholly divested of title between the date of the lease and the filing of the bill, but that his title was perfect at the time the bill was filed; no fraud was proved against W. ; and the vice-chancellor dismissed the bill: Held, that J. showed no equitable grounds of relief, and his bill was therefore properly dismissed.
    On appeal from the vice-chancery court at Carrollton; Hon. Henry Dickinson, vice-chancellor.
    On the 18th day of April, 1844, Allen Jenkins filed his bill in the vice-chancery court, at Carrollton, against William W. Whitehead, charging that William W. Whitehead, as president of the board of trustees of the 16th section of school lands, of township 18, of range 5 east, leased to his brother, Edmund G. Whitehead, for ninety-nine years, to commence on the 21st day of November, 1836, a certain tract of land for the sum of $1403 20, to be paid in four equal annual instalments; that Edmund G. Whitehead assigned his interest in the lease to his brother William, who gave his own notes to the commissioners, for the consideration of the lease, and to whom they were to make a deed of lease when the notes were paid; that some time afterwards, William W. Whitehead sold to complainant, by a parol contract, the unexpired term in the lease, for which complainant was to give his three notes for the same amounts, and due at the same time of the three last notes given by William W. Whitehead to the commissioners, and Whitehead was to make him a deed of lease as soon as the commissioners should make a deed to Whitehead; that on the 28th day of June, 1838, he paid to Whitehead, as part of the purchase-money for the lease, the sum of three hundred and fifty-two dollars, for which Whitehead gave him a receipt, and expressed in the receipt, at length, the terms of the contract with complainant, which receipt was made exhibit A to the bill; and that the amount so paid by complainant discharged the first note given by Whitehead to the commissioners. The bill further charged, that soon after the payment was made, complainant made inquiry as to the mode in which the sale had been conducted by the board of trustees, and he became satisfied that their whole proceedings were null and void; that he therefore refused to give Whitehead his three notes, as above specified, and immediately abandoned the premises, and removed to the state of Louisiana; that as soon as he refused to give his notes, Whitehead instituted suit in the circuit court of Carroll county, on their parol contract, and recovered judgment thereon against him, for the sum of sixteen hundred and eighty dollars and twenty cents, on the 15th day of October, 1841 ; from which judgment complainant prosecuted a Avrit of error to the high court of errors and appeals, which court affirmed the judgment of the circuit court. The bill further charged, that in May, 1842, upon the petition of a majority of the citizens of the township, which petition William W. Whitehead Avas active in getting up, and procuring signatures to, the probate judge of the county, in pursuance of an act of the legislature of the state of Mississippi, passed on the 24th day of February, 1842, rescinded the sale made by William W. Whitehead, president, &c. as aforesaid ; and the notes given by Whitehead to the commissioners, as above-mentioned, were thereupon returned and given up to him ; Whitehead and he then surrendered his lease, which petition was made exhibit B to the bill; that after the notes and lease were surrendered up, the land Avas again leased, by an order of the probate judge of the county, for the term of ninety-nine years, to commence on the 1st clay of December, 1842, to Allen Gary and C. F. Hemingway, for the sum of one hundred and seventy-five dollars, who were then entitled to enter upon and enjoy possession of the same; that Whitehead was active in procuring a rescission of the sale made by him, as president, &c. that he might be able again to purchase in the land for a small price, and endeavor to reap some benefit from the fraud he practised upon complainant in making an assignment of his lease; that Whitehead was then endeavoring to collect his judgment, had ordered an execution thereon, and would proceed to levy and collect the same, unless enjoined, &c. The bill prayed that the contract between complainant and Whitehead be rescinded, and the lease annulled; that Whitehead be compelled to refund the money paid to him by complainant, with interest, and that he be perpetually enjoined from the collection of said judgment. The answer of Whitehead admitted, that on the 26th day of November, 1836, he was acting as the president of the board of trustees of school land, as stated in the bill of complainant; that intending to act in accordance with law, he leased out the same for ninety-nine years to his brother, Edmund G. Whitehead, and he with the other trustees executed and delivered a bond to his brother Edmund, conditioned to make a deed of lease to the land when the purchase-money was paid ; that he procured from his brother Edmund a transfer of the bond, and on the 26th day of June, 1838, he sold to complainant at his, complainant’s request, the unexpired term in the lease, at which time complainant paid him three hundred and fifty-two dollars, and promised to give his three notes for the residue of the purchase-money, payable at the same time his own notes fell due; that he gave complainant a receipt for the money so paid, and stated fully therein the terms of their contract, which was the same filed as an exhibit to the bill; that complainant did not execute his. notes at the time of their contract, because the only paper they then had was used in writing the receipt above-mentioned ; that at the time of the contract he informed complainant fully of the character of his title; he then placed complainant in possession of the land, and he used and' occupied it without molestation or disturbance by anybody. He denied that the original sale made by himself, as president of the board of trustees, was void, and if any irregularities existed in it, he denied that complainant could call them in question in that collateral manner; he stated that he was in good faith fulfilling his contract, and he never heard from complainant of any dissatisfaction or failure of title until shortly before the complainant left this state for Louisiana, when he called on complainant for his notes, according to their contract, and complainant refused to give them, on account of some alleged irregularity in the original sale; that he then caused suit to be instituted against the complainant, in the circuit court of Carroll county, which was defended by able counsel, who set up the alleged failure of title, relied upon the statute of frauds, and made every defence that could have been made, and upon a full and fair trial, he recovered judgment against the complainant for $1680 20, which judgment he admitted was affirmed by the high court of errors and appeals. Respondent admitted, that in May, 1842, a majority of the citizens of the township petitioned for and procured from the probate judge of the county, an order rescinding the original sale; but he denied that he was active in getting up the petition, and obtaining signatures thereto; he admitted he had no objection to the order, but denied that he either signed the petition himself, or requested anybody else to sign it; and he submitted whether such order of the probate judge was regular. He admitted that another sale was ordered, and Allen Gary and Collins F. Hemingway became the lessees of the land, though he stated that he procured from them an assignment of the lease, and a deed had been executed to him for the land, and he made the assignment and deed exhibits to his answer. Respondent denied that he ever made any misrepresentations to the complainant, or acted with any fraudulent intent, and insisted that he always acted in good faith; was then fully prepared and willing to comply with his contract with the complainant, and execute a good and valid lease to the land, and he asked leave to rely upon his answer as a demurrer to the bill. The parties then entered into the following agreement, to wit: “ It is admitted that the land described in the bill was leased to Edmund G. Whitehead, for the term of ninety-nine years from the 21st November, 1836, for the price stated in the bill; that E. G. Whitehead assigned his interest for the term of years in said land to his brother, the defendant; that about June, 26, 1838, W. W. Whitehead assigned his interest for the unexpired term set forth in complainant’s exhibit A, to Allen Jenkins, complainant; that under that assignment Jenkins went into possession, and used and occupied about twenty acres of the land for one year or more; that some time in 1840, Jenkins refused to perform the contract in exhibit A, and abandoned the possession of the land, and removed to Louisiana, where he has since resided. Just before the departure of Jenkins, Whitehead instituted his action of assumpsit on the exhibit A, in the Carroll circuit court; Jenkins in his defence insisted on the statute of frauds and defect of title; that judgment was rendered in favor of Whitehead on the 15th October, 1841, for $1680 20, as stated in the bill, from which judgment Jenkins prosecuted his appeal, and on hearing thereof, said judgment was affirmed;. that in May, 1842, a majority of the citizens of the township named in exhibit B, presented a petition, (of which said exhibit is a copy,-) and in pursuance of said petition, the sale of said 16th section was rescinded by the probate judge of Carroll county, under the act of the legislature approved February 24th, 1842; that the probate judge gave up to W. W. Whitehead the notes which he had given for the lease, and he surrendered the bond which was assigned him for a deed of lease; that after the contract had been thus rescinded, the probate judge, in pursuance of the statute of February 24th, 1842, ordered a sale of the land named in the bill, and on the 15th day of December, 1842, he leased the same for the term of ninety-nine years to Allen Gary and C. F. Hemingway, for one hundred and seventy-five dollars; that W. W. Whitehead, on the 30th October, 1843, purchased of Gary and Hemingway the term aforesaid, as set forth in the answer of defendant; and the probate judge, on the 4th day of June, 1844, made a deed of lease for said term to W. W. Whitehead, all of which shall be regarded as proof, and the cause set for hearing June 13th, 1844.” The cause was submitted to the vice-chancellor on the bill, answer, exhibits, and the foregoing agreed state of facts, and on the 19th day of June, 1845, he rendered a final decree, dismissing the bill, from which the complainant appealed to this court.
    
      Sheppard, for appellant.
    Two points are presented by the record in this cause, which I think will warrant a reversal of the decree entered in the vice-chancery court.
    1. That the rescission of the contract, under the act of 1842, did by the provisions and requirements of that law, defeat and rescind the assignment of the lease made to Jenkins.
    2. On general principles, independent of the particular provisions of the law of 1842, such surrender will entitle the assignee to the relief sought by his bill.
    The act of 1842 provides, that such rescission shall not be made or allowed unless all subsequent assignments are thereby surrendered up. Acts of 1842, p. 131, sec. 1. It would be against the positive enactment and policy of the law to allow the assignor to compel a performance of such contract.
    Whitehead surrendered the old lease, and has since accepted a new lease, which would in law amount to a surrender and abandonment of the first lease. Livingston v. Polls, 16 Johns. R. 28. The surrender of the lease, after Jenkins had disclaimed all interest, precludes the defendant from insisting on the contract of assignment. It would in law be an eviction under that title.
    The position taken on the part of defendant, that he can now make an assignment, will not avail him in bar of the relief sought. This position would be more plausible if the contract had been to make an assignment at a future day. The contract was made for an assignment of an existing estate, a subsisting term.
    In contracts in reference to a leasehold interest, words in pre-sentí, which pass a present interest, will be construed as passing the legal title, and giving the assignee or lessee a present right of entry. And the covenant for title will be construed as a covenant for a more formal assurance. 4 Cruise Dig. 59, cases cited in note.
    In the case at bar this question is placed beyond doubt, by the agreed facts, which admit that the contract was for an assignment of the term, accompanied with possession; Jenkins was only taking the place of Whitehead, in the contract made With the trustees.
    To allow the defendant to have execution, and coerce payment of the judgment, because he can make a new assignment of the second lease, would in effect change the agreement on which the judgment was recovered, and substituting a new consideration for which Jenkins had never contracted. The facts in which the equity of case arises here, occurred subsequent to the rendition of the judgment.
    The petition by the citizens of the township, seeking to have the sale rescinded, shows that there were great doubts, as to the validity of the sale, by the trustees. Such doubt caused the complainant to abandon the contract; and in this view the very great depreciation of the property in value, is material to be considered.
    The first lease, was purchased for about sixteen hundred dollars, and the last for one hundred and seventy-five.
    
      William G. Thompson, for appellee.
    Whitehead obtained his judgment for the purchase-money, not on the ground that he had title to the land, when he sold, but on the pround of his agreement to make title, and putting Jenkins in possession. Jenkins does not show here, nor did he show on the trial at law, that Whitehead could not make title. He could not abandon the land, and rescind the contract, without an offer to pay the purchase-money and a demand of title. Whitehead was entitled to judgment for the purchase-money, on the ground of his agreement to make title, not because he then had title under the school commissioner. He was entitled to judgment, although he then had not title under the commissioner. His contract with Jenkins was wholly independent of, and distinct from, his contract with E. G. Whitehead for title from the commissioner. How then could he lose his right in the judgment by releasing and giving up a color of title, held under the commissioner’s sale? He was still bound by his agreement to make title. And on the ground of that liability, he was entitled to the judgment for the purchase-money, at the time he obtained it. Jenkins can only go in equity for a rescission of the contract, on the grounds that Whitehead will not be able to make him a title, and that he is insolvent, and that therefore, his right of action on Whitehead’s agreement will not avail him anything. But there is no proof that Whitehead is insolvent, and it is not pretended that he cannot now make title. It is clearly manifest, from Whitehead’s answer, and the agreed facts, that Whitehead has perfected his title. How then can it be pretended, that he has practised a fraud on Jenkins? There is no proof whatever that he made any misrepresentations in regard to his title.
    
      William Thompson, on the same side.
   Mr. Justice Thacker

delivered the opinion of the court.

Allen Jenkins filed his bill of complaint in the vice-chancery court for the northern district, to set aside a contract of lease of land made by him with William W. Whitehead, to recover back an amount of money paid on said contract and to perpetually enjoin a judgment at law recovered against him in an action founded upon said contract. The facts were as follows: William W. Whitehead, as President of the Board of Trustees of the 16th section of school lands, leased certain lands to his brother, Edmund, for the term of ninety-nine years from the 23st day of November, 1836; Edmund assigned his interest in said lands to William, and about the 26th day of June, 1838, William assigned to Jenkins. Under this assignment Jenkins went into possession of the lands; but some time in 1840 he refused to perform his portion of the contract and abandoned-the possession of the land. William sued Jenkins at law upon his contract to pay the consideration for the assignment, and recovered. In this suit at law Jenkins set up, as defences, the statute of frauds and a defect of title. In May, 1842, upon a petition of citizens, the lease of the 16th section aforesaid was rescinded by the probate court of Carroll county, and William surrendered his bond which was assigned him for the deed of lease. After this rescission, the probate judge ordered a sale of the lands aforesaid, and they were purchased by Gary and Hemingway, at a price much less than the amount of the first lease by the President of the Trustees of school lands, and William Whitehead became the purchaser from Gary and Hemingway.

The only equitable ground upon which Jenkins can claim a rescission of the contract is that Whitehead cannot make a perfect title. This is not pretended. Although a period might have existed when Whitehead was divested of title, between the date of his contract wilh Jenkins and the filing of this bill, yet as he has since perfected his title, and was in that attitude at the time of the filing of this bill, the ground of complaint of Jenkins is unfounded. It does not appear that any specified time entered into the contract at which Whitehead should make title to Jenkins. The essence of the contract was, that Whitehead should make Jenkins a perfect title to the lands. There is no pretence that fraud or misrepresentations were practised by Whitehead, and all the circumstances surrounding Whitehead’s original title were known to Jenkins.

Decree affirmed.  