
    Richard J. Wilty vs. Joshua Hightower.
    It is a general rule that if there be a mere failure of consideration, arising from the sale of a defective legal title, unmingled with fraud or bad faith, the vendee will be left to the covenants and warranty in his deed.
    M. W. entered a tract of land, and in January, 1837, assigned the certificate of entry to D. In October, 1838, a judgment was rendered against M. W.. under which the land was sold, and bought by H. in September, 1840, who sold by deed of warranty to W., in December, 1840; W. having in 1839 bought the same land from D., to whom a patent issued for it in December, 1841, and who conveyed it by deed to W. in May, 1844; W. filed a bill against H.., alleging that H. misrepresented the nature of his title at the time of sale, and that he (W.) had been evicted under a paramount title, and prayed a rescission of the contract of sale from H. to W. H. denied the misrepresentation, and there was no proof of eviction : Held, that the sale could not be rescinded, as the complainant had not made out a case of fraud or of plain and palpable mistake affecting the substance of the subject-matter of the contract ; and that the bill must be dismissed without prejudice to W.’s remedies at law.
    Possession is notice to the purchaser at execution sale of the title of the party in possession; though he have no deed to the property or other title of record.
    On appeal from the vice chancery court at Carrollton; Hon. Henry Dickinson, vice chancellor.
    Richard J. Wilty states in his bill that on the 21st of December, 1840, he purchased of Joshua Hightower a tract of land in Choctaw county, for the price of three hundred dollars; for which Hightower on that day executed and delivered to him a deed in fee simple with full covenants of warranty ; that High-tower, at or before the purchase, assured him that he had a good title and was fully empowered to sell; that Hightower, in fact, had no title and no right to sell; and that he had abandoned the possession derived under Hightower’s deed, and had been evicted in an action of ejectment in the Choctaw circuit court. That Hightower claims title to the land through a sheriff’s deed, under a judgment in the Lowndes circuit court, rendered on the 7th October, 1838, in favor of Rugby, Harrison and Blair against Madison Walthall and others; the sale under which, and the sheriff’s deed to Hightower, were made on the 21st of September, A. D. 1840. That at the period of the rendition of that judgment none of the defendants therein had any interest in the land; but the same was the property of one John H. Davis, to whom the government of the United States had, on the 12th day of December, A. D. 1841, issued a patent for it. The bill prayed a rescission of the contract, and that Hightower might be compelled to refund and pay back the money he had received from the complainant.
    Hightower in his answer admitted the sale, but denied that he had misrepresented his title, or had declared it to be good, or that the complainant had abandoned the possession under his deed or been evicted and called for proof. That Wilty knew all about the nature of the defendant’s title, which he admitted he derived from the sheriff’s deed, as alleged by Wilty. That Wilty was in possession of the land, claiming it as his own when the sheriff’s sale took place ; was present at the sale and bid for the land, but the defendant out-bid and became the purchaser. That afterwards Wilty came to the defendant and sought to buy his title, which he sold to him at his urgent solicitation, and at less than the value of the land, and gave the deed as stated in the bill. That Wilty owed’Davis for the land, and refused to pay Davis on the ground of the purchase from the defendant. That Wilty had been in possession of the land from prior to the sale to defendant until a recent sale by Wilty to one William R. Aldridge, who was then in possession. The defendant insisted on the validity of the title he had passed to Wilty by his deed.
    The proof in the cause was an assignment by title bond on the 18th day of January, 1837, from Madison Walthall to John H. Davis, of the land in controversy; John H. Davis’s assignment, by similar bond, to Richard J. Wilty of the same land, dated 19th day of August, 1839; a patent from the United States government, of date December 1, 1841, to Davis, to the land ; a deed from Davis and wife to Wilty, dated May 14, 1844, to the same land; the deed from Hightower and wife to Wilty, referred to in the bill; and the deed from the sheriff of Lowndes county to Hightower, also referred to in the bill.
    On this state of pleading and proof the chancellor dismissed the bill, and the.complainant appealed.
    Sheppard, for appellant.
    The pleadings show that complainant purchased the land under the impression and belief that the judgment was an incumbrance upon his title.
    The sheriff’s deed accepted by Hightower, recites that it conveys the title which Walthall had on 9th of October, 1838 ; but the title deeds, filed in the cause, show that W althall had sold this land to Davis, January 18, 1837.
    Possession of vendee will protect his title against judgment lien, though his bond or deed be not recorded. Lacoste v. Dixon Sp StoJcey, 1 S. & M. 70.
    Wilty was in possession and claiming the land at time of sheriff’s sale, under his purchase from Davis, made August 19, 1839. This is admitted by answer. If the judgment had been a lien on the land, it was the duty of Wilty to protect the title of his vendor, and purchase or pay off such incumbrance and deduct the amount so expended from the purchase-money due his vendor.
    Davis holds the patent for the land, which relates back to the time of his purchase from W althall, to cut off mesne incumbrances.
    The acceptance by Wilty of a deed from Davis in 1844, shows an abandonment of the title derived from Hightower.
    The bill charges misrepresentations as to title at and before the sale, and the court will observe that this charge is denied in a qualified manner. The manner of the denial in effect admits that the vendor represented that Davis had obtained his title after the judgment against Walthall.
    This misrepresentation will warrant relief; for whether Highfirwer knew it to be false or was mistaken, he is equally responsible, for it operated to deceive and mislead his vendee. The statements of the answer as to the lien are negatived by proof filed. The existence of the judgment lien was a most material fact, for the whole title and right of Hightower hinged on it. Ignorance or mistake of facts material to the contract, and the main and efficient cause of its concoction, will warrant relief in equity. Story’s Eq. vol. i. 155, and case cited there to sustain the text.
    This case is not within the rule settled in case of Bumpus v. Plainer, Johns. Ch. R. The title could not be tried at law, as both the conflicting claims are vested in Wilty, who is in possession.
    The remedy at law on the covenants in the deed would be embarrassed and doubtful, and in such case equity will interfere.
    
      Waul, for appellee.
    There was no error in the decree of the vice chancellor.
    1. Wilty had possession of the land under a purchase from John H. Davis, and should have been conversant with his own title; and if the title of Hightower was defective, Wilty was conversant with the defects, and could not afterwards avail himself of them. Williamson v. Ranney Sp Gerault, 1 Free. Ch. R. 114; Allen v. Hopson, 1 Ibid. 114.
    2. Wilty was himself a bidder at the sale, and induced High-tower to purchase, and could not afterwards set up his title procured or held adverse to Hightower. 1 Bar. & Har. Digest, 564, 567, § 42-67; Higginbottom v. Bennett, 5 Johns. Ch. R. 184; Morrison v. Law, 2 Dana, 15; 1 Story’s Equity, 375, § 385, n.
    3. If he has a remedy, it is clear at law upon the covenants in the deed from Hightower, and he therefore is not entitled to relief in equity. Bumpus v. Plainer, 1 Johns. Ch. R.
   Mr. Justice Clayton

delivered the opinion of the court.

The record shows that Madison Walthall entered a tract of land in the office ^t Columbus, and in January, 1837, sold it, and assigned the certificate of the register of the land office to John H. Davis. In October, 1838, a judgment was rendered in the circuit court of Lowndes county against Walthall, under which an execution issued, and the land sold to the defendant, Hightower, in September, 1840, who sold to the complainant, Wilty, in December, 1840, and made conveyance by deed, with general warranty. The complainant had previously, in August, 1839, purchased the same land ofDavis, the assignee of Walthall. A patent was issued by the government to Davis, in December, 1841, who conveyed by deed to Wilty, in May, 1844.

The bill states that Hightower misrepresented the nature of his title at the time of his sale; that the complainant has been evicted under paramount title, and prays that the contract may be rescinded, the deed cancelled, and Hightower decreed to repay the money with interest. There was no proof of eviction, nor any evidence in the cause, except the several title papers referred to.

It hence appears that the complainant had purchased the land of Davis, and was in possession at the time of the sale by the sheriff to Hightower. All the parties derive their title from Walthall. After the sale by Walthall to Davis, and the purchase and possession of Wilty, Walthall had no interest which could be sold under execution. See Money v. Dorsey, MS. His only evidence of title at any time was the certificate of the register of the land office; that certificate had been transferred prior to the judgment. Neither he nor Davis had any title upon the records of the probate court of the county in which the land was situated. The possession of Wilty, at the time of the sale under execution, was notice of his title to the judgment creditor, and the purchaser, according to the decision of the majority of this court, in Dixon & Starkey v. Lacoste, 1 S. & M. 107. It would seem therefore to follow, that at the time of the sheriff’s sale, Walthall had no title, and consequently that Hightower got none.

But the title was embarrassed, and in the estimation of the parties involved in doubt. We cannot say that Wilty had not a right to buy his peace, or to purchase up all the conflicting claims. The charge of misrepresentation is denied, and there is no proof of it. The bill alleges an eviction, but there is no testimony to sustain it. Indeed, it is difficult to see how there could have been an eviction, when all the titles and claims were concentrated in the complainant’s own hands.

If the agreement in this case had not been executed, and Hightower had filed a bill for specific performance, we might not perhaps have made a decree in his favor. Neither do we think the complainant has made out such a case of fraud or of plain and palpable mistake, affecting the substance of the subject-matter of the contract, as will justify the rescinding of the contract. It is a general rule, “ that if there be a mere failure of consideration, arising from the sale of a defective legal title, unmingled with fraud or bad faith, the vendee will be left to the covenants and warranty in his deed.” Thompson v. Jackson, 3 Rand. 507; Osgood v. Franklin, 2 Johns. Ch. R. 23. Oases are numerous in which a bill and cross-bill, the one for specific performance, the other for rescission, have been both dismissed, and the parties left to their legal remedies.

A vendor is in general only liable to the extent of his covenants ; but there may be such misrepresentation as will give a purchaser a right to relief, to which the Covenants do not extend. Nor is an eviction necessary to entitle the complainant to relief in equity, from the consequences of a fraud practised upon him. Edwards v. McLeary et al. Cooper’s Eq. R. 318. But in the case before us, the charge of misrepresentation has not been made out.

We think the decree of the vice chancellor was correct, and affirm it, without prejudice to any legal remedy of the complainant.

Decree affirmed.  