
    Brock v. Southwick.
    where the vendee gives his note for the purchase-money and takes a deed with general warranty, and there is no fraud on the part of the vendor, nor ignorance on the part of the vendee as to a defect in the title, the vendee cannot successfully resist the payment of the note for the purchase-money, unless he has been evicted — proof of a paramount title outstanding in a third person is no defense. (Note 11.)
    Error from Galveston. The defendant in error sued the plaintiff in error on -a note not negotiable for two hundred dollars, payable to one Ilasbrook, and by him assigned'to the plaintiff.
    
      The ih-í '¡i>1 int resisted the payment on the ground that the note, was given .lor the pur 'h.ue-mouey oí a lot iu the city oí Galveston, purchased by tile defendant o£ J lusbrook, who contracted to procure through Swctt, and to make .to the defendant a good and sufficient warranty title, Init who had failed to do so, Ilashrook having no title, and Swett a title to an undivided moiety only of the lot.
    The note hove date on the 24th day of May, 184G. On that day Swe.tt executed to Brock a conveyance, with a covenant to “warrant anti defend the “ title and possession ” of the lot to the grantee, his heirs, &c. A subscribing witness to the deed testified that at the time of malting the contract a question arose as to the title to the lot; that Brock was referred to Parish to ascertain the state <.i the. title., and was told that Slwett could not give him a good title. Parish, who was the clerk of the County Court, testified Unit about Üie time of mailing t!ie contract Brock applied to hint for information in respect to the title, and tila! tie told him he could not get a .goodtitle. Brock went into possession and had kepi, possession. lie had a controversy with one Hall iu respect to the possession, bul finally kept possession. The alleged defect of title was proved by the d-vu'dant. lie also gave in evidence a deed to the lot from Swett and Ilasbroi.k in himself, purporting to have been made on the fourth day of May, 1810, ami which waslilod for recording on the eleventh day of June, 1840, reciting that, the lot had been purchased by Ilashrook of Swett, and by Broelc of Ilashrook, and that by the terms of the. purchase Brock “was to have a deed ■“of general warranty for said property.” The deed contained a covenant to warrant and defend the premises “free from the claims of all persons claiming “or to claim any part thereof.”
    It was in proof that two hundred dollars of the pnrehase-money was paid at the time of the making of the contract, and the note in question was given for •the residue.
    The court, instructed the jury, in effect, that unless the defendant had been dispossessed ho could not successfully resist the payment of the note; that proof of a valid outstanding title was not a good defense to the action. Títere was a verdict anti judgment for the plaintiff, and the defendant brought a writ of error.
    
      Slienoood Goddard, for plaintiff in error.
    As to the second question — the necessity of actual eviction — it is said, where a purchaser is entitled to relief on the ground of the concealment of a fact establishing the invalidity of the title, it is'not important that he has not been evicted. Though the rightful owner may never assert his right of possession, yet the purchaser cannot be kept in a .state of hazar-1 and uncertainty. (Sug. on Vend., vol. 1, p. 388; Edwards v. McLeay, Coop., 30S; Tarpley v. Poage’s Adm’r, 2 Tex. R., 139.) The case last cited is conclusive, both as to possession and eviction; for it is there expressly declared 1 hat the “vendee most, by competent and sufficient evidence, “establish tire existence and validity of the outstanding title; hut when that “is done1 there is no reason why his remedy should bo delayed until disturbed ■“in the. enjoyment of the laud, and this even when the defendant is in posses-“siou, for tlie. court has authority adequate to the adjustment of all the matters “arising out of the controversy between the parties.”
    At common law, it is true, the vendee was left to his action of covenant ■ as ins remedy in eases of this kind, the reluctance of courts of common law to relieve the vendee iu the first instauce compelling him to resort to a secoud suit, and thereby producing- unnecessary litigation; bnt. courts of equity, con-■sttlling the merits of each ease, have always relieved the innocent purchaser without remitting him to his remedy by action of covenant.
    If necessary, wo may fortify the rational and equitable position assumed by the Supreme Court in the case of Tarpley v. Poage’s Adm’r, by reference to ■ether decisions. In Johnson v. Heed, 9 Mass. B.,'S1, the conrt say it is manifestly “unjust that a man, who has bargained for a thing, shall be obliged to “pay for it, when he may never get the thing he pays for.” In Eisliback v. 
      ■Williams, 3 Bibb, 342, it is held that “if the vendor is unable to convey, it is “micoiisoioiitious in him to enforce the payment of the, purchase-money until “he is able to convey, and such inability is good ground for rlu: vendee to “apply to chancery to enjoin the vendor from enforcing' payment.” Cer-taiuly, then, if chancery will enjoin the vendor from enforcing payment in a court of law, it will not enforce payment in its own courts, 'this is a ease precisely in point. The appellee, standing jn the situation (by statutory enactment) of the vendor of land to which he had failed to makegood title, sought to enforce payment of the purchase-money without showing liis ability to make title at the time of bringing the suit and offering to do so.
    Again, it is said that chancery does not relieve a purchaser from the payment of purchase-money, except on the ground of fraud or upon failure of title duly ascertained. (Bar. & Har. Dig., vol. 2, p. 550 ; Abbott v. Allen, 2 John. Olían., 623.)
    Tlie plain and unavoidable inference is that in cither event, where there is fraud or where failure of title is duly ascertained, the purchaser will be relieved in chancery from the payment of the purchase-money.
    That the purchase-money unpaid is due on a note makes no difference; it is purchase-money, nevertheless, and is governed by all the principles and authorities adduced. If tlie note had been paid, and the whole of tlie purchase-money thus obtained, still the purchaser, if tlie seller failed to make title to the whole estate, could have recovered pro tanto remuneration from the vendor, or had the whole contract rescinded and the purchase-money refunded.
    The strictness and precision of the common-law forms of action did not permit that to he pleaded by way of defense in one action which was recognized as a sufficient ground to support another. But here, whore all forms of action are done away with, and courts exorcise their powers without any distinction between law and equity, the same formalities should not be adhered to. Whatever forms a substantial defense or ground of relief should be duly considered and allowed to be pleaded as such, for “chancery looks at the merits and substantial justice of each case,” and grants relief accordingly.
    
      Jones Sf Ballinger, for defendant in error.
   Wheeleb, J.

The proof shows a contract of purchase, and a conveyance subsequently executed with warranty of title and possession. The defendant accepted the conveyance with a knowledge of the defect of title. He was put upon inquiry, and was informed that the title was defective. He nevertheless made the purchase and accepted the conveyance without, objection; relying, doubtless, upon his chances to perfect the title, or upon the security afforded by the covenants in his deeds of conveyance. It is fair to conclude that he considered his purchase worth, or that he was willing to give, the stipulated price, notwithstanding- the defect of title; or that lie chose to take the chances as to the title, and have his recourse upon the covenants in his deeds in case of eviction. There is no evidence of misrepresentation or fraud practiced upon him. He took and has retained possession under his purchase.

Can he under these circumstances withhold the payment of the purchase-money? We think clearly not. Had tlie defendant been deceived as to the title he acquired by the fraud of the vendor, or had he been ignorant of the defect of title, a very different ease would have been presented'! But when he made the purchase and accepted the conveyance with a knowledge of that defect, lie must, we think, he deemed to have waived the objection.

In its application to the evidence in tlie case there was, we think, no error in the instructions given; and we are of opinion that the judgment be affirmed.

Judgment affirmed.

Note 11. — Claiborn u. Goeman, IS T, 44; Fortson v, Caldwell, 17 T., 027; Cooper v. Singleton, 19 T., 260; see Perry v. Rice, post 3(57.

Where a party purchased land to which there is a superior outstanding title, the reasonable inference, in Mío absence of anything to tho contrary, is that he was led to believe the right was in hi* vender. And in an action on a note *«iven for the purchase money of such land, when tho doiVn.iant proved liis purchase, and a superior outstanding title of which he could not have had knowledge, and when there can be no inference from the evidence that lie had knowledge <>t outstanding title, or the want of title in liis vendor, he is entitled to his defense of a total failure of consideration, and upon rescoring posse?.; ion and the deed to have the contract and the money he had'paid refunded. (Sniilh v. Nolen, ¿1 T.,490; Deinaret v. Bennetl, 29 T., 202; Bryan v. Johnson, 89 T., 81; Herron r. Do Bard, 2-1 T., 181; Johnson v. XiOn27 T., -1; May v. Taylor, 27 T.. 120; Tooke r. Bonds, 29 T. no.) .Tho vendee m an execu-tory contract may sot up the defocts of tibio as a defense against tho recovery of the purchase money, and is not bound to allege liis ignorance of these delects at the time of sale. It is for the plainíiíí’to reply and prove knowledge of the condition of the title by the defendant. (Taul v. Bradford, 20 T., 201; Hurt v. M. Reynolds, 20 T„ G95; Littlefield v. Tinsley, 22 T., 259: (dreen v. Chandler, 25 1\, 148; Baldridge u. Cook, 27 T., GG5; Littlefield v. Tinsley, 26 T., 353.  