
    Yancey v. Lewis.
    November, 1809.
    Equity Practice-Conveyance of Land — Defect in Tille— Relief. — Where a purchaser comes into a Court of Kquity for relief against a judgment at law, on the ground of a defect in the vendor’s title to part of the tract of land purchased, it is not enough for him to allege such defect or want of title: he must prove an actual eviction, or superior title in some other person.
    This was an appeal from a decree of the Superior Court of Chancery for the Staun-ton district, reversing a decree of the County Court of Rockingham.
    Layton Yancey obtained an injunction from the County Court of Rockingham, to-be relieved from a judgment *at law, recovered against him in that Court, by Lewis. The material facts were these: Lewis sold to Yancey a tract of land, with general warranty, by certain metes and bounds, which were thought to be the true boundaries by both parties. They had long been in treaty for the land; a considerable degree of anxiety was manifested by Yancey to possess it; Lewis always wishing to sell by the acre, and Yancey to purchase in gross. At length a bargain was concluded, by which Yancey was to pay Lewis 5001. for the land included with certain specified lines, without mentioning the quantity, or the price, per acre. All the payments were made except the last; when Yancey filed a bill to be relieved from a judgment recovered for the sum due, on the ground, that about one hundred acres of the land within the specified boundaries, were waste and unappropriated ; that an entry had been made by John Yancey, a brother of the complainant and a grant obtained; but that grant was not produced, neither was there any proof of an actual eviction, nor of a superior title to that of Lewis, in any other person, though it was alleged that it existed.
    It is neither charged in the bill, nor is there an3 evidence of fraud or concealment on the part of Lewis. He appears to have been ignorant that the title was incomplete; the papers concerning which were returned to the register’s office before his father’s death, though the time for the emanation of a patent had not elapsed. Yancey had married his sister, was left executor of his father’s estate, and guardian to the infant children, of whom Lewis was one. The land in controversy was devised to Lewis, by the will of his father; and, as he states in his answer, Yancey, from his relation to the family, and his agency in the affairs of the estate, was better acquainted with the title papers than he was, and actually commenced the treaty for the purchase of it, before he was of age. Yancey’s anxiety to possess the land was so great, that *when Lewis was only about seventeen or eighteen years old, he made application to him, to promise and engage to sell him the land when he should attain his full age, using many .powerful arguments to induce him to do it; such as having lent him (Lewis) money during his minority, which would have been lost had he died under age; and, finally, that unless he (Yancey) could get the land, he should be compelled to remove, with the sister of Lewis, to some other part of the country; his tract of land being too small for the accommodation of his family.
    Various circumstances were relied on by the appellee, (to prove that Yancey had, or ought to have had, a more accurate knowledge of the situation and boundaries of the land than the appellee himself possessed,) which are minutely detailed in the opinion of Judge Tucker, and therefore need not be repeated.
    The County Court of Rockingham perpetuated the injunction; but on an appeal taken by Lewis, to the Superior Court of Chancery for the Staunton district, it was dissolved, and the bill dismissed: whereupon Yancey appealed to this Court.
    Call, for the appellant, argued, that as the language of the deed from Lewis to Yancey was explicit, in conveying the land by certain metes and bounds, Lewis ought not to be received to say, that he meant to sell any less quantity. This would, in effect, be to substitute parol testimony to contradict the plain words of a deed.
    There is no circumstance, said Mr. Call, from which fraud on the part of Yancey could even be inferred; much less is there any proof of it. The allegations of the answer not being responsive to the bill, are not evidence; and they are not supported by a single deposition. '^Randolph and Wirt, for the appel-lee, contended, that Yancey, being a plaintiff in Chancery, was bound to shew every thing stated in his bill, or it should be dismissed. The gist of Yancey’s complaint was, that by a paramount title, he had lost 130 acres of the land bought of Lewis. This is alleged to be in 130 acres acquired by John Yancey; but there is no proof of the existence of a superior title in John Yancey, or in any other person. Nothing but actual eviction should entitle the appellant to the final relief which he now asks.
    Suppose this Court should act on the principle that Layton Yancey had lost the land by John Yancey’s paramount title, and af-terwards John Yancey’s title should be tested and found against him, will not Lay-ton Yancey thus get his injunction perpetuated, and the land also? But, if the Court would not require a sentence of actual eviction, surely they will require some proof of John Yancey’s title; which has not been shewn. But, in fact, the defective title complained of does not exist.
    On the circumstances, they contended, Layton Yancey was not entitled to relief. In three months after the works were returned to the register’s office, he became proprietor of all the papers, by being executor of the appellee’s father, and guardian to the infant children, of whom the appel-lee was one. If, then, there were any neglect in perfecting the title,‘it was imputable to the appellant alone.
    Again, the deed from Lewis to Yancey, was founded on the statement of Yancey himself, who had all the title papers, and the best opportunity of knowing the situation of the land.
    Another circumstance ought to have great weight. The location on part of this tract, was made by John Yancey, a brother of the appellant, partly by a warrant furnished by the appellant himself, who appears to have *been officious in taking the papers from the surveyor, and carrying them to the office, in order to perfect the title.
    
      
      Equity Practice — Conveyance of Land — Defect in Title — Relief.—On this question the principal caséis cited in foot-note to Eichaids v. Mercer, I Leigh 125; Beale v. Seiveley, 8 Leigh 675, and foot-note; Koger v. Kane, 5 Leigh 607; Wamsley v. Stalnaker, 24 W. Va. 222; lleavner v. Morgan, 30 W. Va. 842, 342, 4 S. E. Rep. 410; Smith v. Parsons, 88 W. Va. 646, 11 S. E. Rep. 69.
    
   JUDGE) TUCKER.

The object of the appellant’s bill of injunction, was to be relieved against a judgment at law on a bond given in part of the purchase of a tract of land sold to him by the appellee, with warranty, by certain metes and bounds in the deed expressed, within which there was a deficiency of about one hundred acres, of which the appellee had not obtained a patent, though apparently entitled to one under the will of his father, whose title to a patent for the same, as far as appears to the contrary, was, as far as depended upon him, complete at the time of his death, though the six months required by law for a survey to remain in the office, had not then elapsed.

The father of the appellee, in his will, makes mention of his leaving both patented and unpatented lands, constitutes the appellant his executor, and expresses his peculiar confidence in him in the management of the trust reposed in him, and in the peculiar care he hopes he will take of his younger children, to whom he most earnestly recommends them.

There is no charge, neither is there any proof of fraud, imposition, or concealment, at the time of the bargain, (which appears to have been many years in contemplation of the appellant,) at least, on the part of the appellee. The desire of the latter to sell by the acre, and the former to purchase in gross, are circumstances which tend to confirm the idea, that the transaction on the part of the appellee was perfectly fair and unimpeachable; and that he was perfectly ignorant that he had not a legal title to that part of the lands for which his father had taken all necessary steps to obtain a patent in his life-time, and probably was prevented from so doing, only by his death. Whether the appellant *was equally ignorant, is not altogether so clear to my mind. The trust reposed in him creates a presumption that he might, perhaps ought, to have informed himself of circumstances which regarded the interest of his testator’s estate, and his children committed to his care. The contiguity of his own land to that which he sought to purchase, and his having been present at a survey thereof, made by his testator’s direction in his life-time, strengthen this presumption. His locating the spot; then withdrawing his location, and suffering it to run out of date; succeeded by the location of his brother on the part of his own warrant, connected with this bill of injunction, are all circumstances which bear a suspicious aspect at the least. The rejection of the appellee’s offer to rescind the contract upon being paid the money he had received, is by no means calculated to dissipate or repel these grounds of suspicion. And if he did indeed declare that he would not take more than double the money he was to give for the whole, at the very time he was complaining of the deficiency, it must be admitted that he was more willing to ask, than to do equity. It is unnecessary to decide whether all these circumstances taken together, ought not to preponderate against his claim for relief; because he has, in fact, shewn no eviction, nor any superior title in any other person. The appellee’s title against the Commonwealth, for any thing appearing on this record, is indisputable, and requires nothing but the actual emanation of a patent to render it complete, both at law, and in equity. No entry or location made subsequent to the death of his father, can affect it, unless for some cause for which a caveat might have been entered. Nothing of the kind is even alleged, much less proved. John Yancey’s location, if actually made, (which certainly does not appear in such manner in the record as to be available, ) does not appear to have been perfected or proceeded upon. I therefore *think the Chancellor’s decree, dismissing the bill of injunction, ought to be affirmed.

JUDGE ROANE} concurred in affirming the decree of the Superior Court of Chancery.

JUDGE) FLEMING

also concurred.

By the whole Court, the decree of the Superior Court of Chancery for the Staun-ton district affirmed.  