
    Abr. Johnson v. John Purvis.
    
      Tried before Mr-. Justice Martin, at Chesterfield, Spring Term, 1838.
    aSmX to the land sold, biot?bf ejected’ he has31 ñTveí twsnSndkoes Crotec“edf tahü possession,aluio’ «tíeis not iñTho1 fm“!°whereheth¿ etle, put the session, ZiZt tained a decree from the Conn fug-'SesTo bo and.clthdvendee S : that vemior was Bey-
    This was an action of assumpsit, on a note given for the purchase money of a tract of land, sold by the defendant, under the following contract :
    is to certify, that I, Abram Johnson, have my land, on Thomson’s creek, to John Purvis, sum f°ur hundred and sixty-five dollars, payable 1st January, 1824, with interest from 1st January, 1823 — Johnson to pay all law expenses, and wife to renounce her dower, and if she does not, ke will make a proportionable reduction in the price, according to his claim in the land. In case the said Johnson do agree to pay John Purvis rent for this land, if any claim should come, and said land be ta-awayif taken before the purchase money becomes due. [Signed,]
    Bec’r. 5th, 1822. JOHN PURVIS.”
    . i • i •» .,t The defence was, that the plaintiff had no title, and, therefore, the note was without consideration.
    It was admitted, that since the sale of the land, to defendant, the plaintiff filed a bilk against the heirs at law of Thomas Dixon, (from whom he al-he had purchased the land,] the object of was, to perfect the defendant’s title; andón the hearing of the case, the heirs of Dixon were ordered to execute a title to the complainant, the present plaintiff. But there was no evidence, that such title had ever been executed, or that the plaintiff had executed, or procured one to be executed, to the defendant. When the defendant purchased, he entered and took possession of the premises. After he had been there for some time, Bishop Dixon, the brother of Thomas Dixon, claimed the land, on behalf of his brother’s heirs at law, and the defendant abandoned it. Bishop Dixon occupied it for two or three years, and then sold it to one Maynard, who has kept possession ever since.
    
      The presiding Judge charged the jury, that the plaintiff had no legal title to the land, when he sold to the defendant — That the title to him had not been executed, or, if it had, none had been executed to-the defendant — That the defendant was not bound to abide by his contract, when the plaintiff had not, and, perhaps, could not, execute a title, which would be valid — That it was immaterial, whether he had abandoned the possession, or had been ejected; and that, finally, on the law of the case, as the defendant was out of possession, the jury might rescind the contract, and should do so; and in support of this opinion, he relied on the case of Breithaupt v. Thurmond (Columbia, May 1832.) .
    The jury found for the defendant, and the plaintiff moves for a new trial on the grounds, 1. That the defendant was permitted to set up a defence, which is not available at law; 2. That the presiding Judge erred in charging the jury, that the defendant could avail himself of thedefence, whether he had abandoned the land, or had been ejected.
    
      
       The case of Breithaupt v. Thurmond, (Court of Appeals, May, 1832) was as follows: Breithaupt, as trustee, sold to Thurmond, several tracts of land. The contract was, " The said Thurmond agrees to pay said Breithaupt fifteen hundred dollars, for said land, (describing it.J Payments as follows: Two hundred dollars cash — three hundred dollars in negro-property, at valuation — The balance, of one thousand dollars, to be paid in one, two and three years, bearing interest from the time of possession; and giving personal security, with a morlgage, to secure the payment of the one thousand dollars.” Thurmond entered, and after occupying the land for a year, abandoned it. The action was brought to recover five hundred dollars, the first payment: and the defence was, that titles had not been executed, or tendered to the defendant. The presiding Judge charged the jury, that, as to the first, or cash payment, it was due, presently after signing the agreement — That its pay- ^ ment was an undertaking, on the part of the defendant, wholly distinct' and independent of the other parts of the contract; and that, therefore, in this action, the plaintiff was not bound to have tendered titles, however necessary such a tender might be, to the recovery of the other in-stalments. On a motion fora new trial, it was held, that the true construction of this agreement was, that no part of the purchase money was payable, until titles were delivered or tendered; and the Court adopted the opinion of the Supreme Court, 1 Peters, 467, viz: “From these authorities, it may be laid down, as a settled rnle, that, at law, to entitle the vendor to recover the purchase money, he must aver in his declaration, a performance of the contract (tender of titles) on his part, or an offer to perform, at the day specified for the performance. And this averment must be sustained, by proof, unless the tender has been waived by the pip-chaser.”
    
   Johnson J.

The defence to this action is a species of quia timet proceeding, which crept into our Courts of law, at a time when the Courts of Equity were in some degree inaccessible to the people of the interior of the State. In Grey v. Handkinson, 1 Bay 278, it is said to be an equitable defence, and jurisdiction of it is claimed fox* the law Courts, on the ground of a supposed fraud in the vendor in concealing the defect of his title. In Hood v. Huff, 2 Const. Rep. 162 by Mills, and Bond v. Quattlebaum, 1 M’Cord 588, the policy of allowing it is seriously questioned, and its inconvenience has I believe, been felt by every member of the profession; and whilst we feel bound by the long and uninterrupted decisions that have given currency to the rule, it ought not to be extended beyond its letter. The principle is that when the vendor has no title to the land sold, the vendee is constantly exposed to be ejected by him having the title, and therefore it is concluded, that the vendee ought not to be compelled to pay for the. land, although he has never been disturbed in the possession. But the principle cannot apply where the vendee is certain of being protected in his title, although a technical legal estate is not in the vendor. Equity will sometimes aid a defective title, by presuming that to be done, which ought to have been done, and will always compel a specific performance, when it is necessary to perfect a clearly equitable title.

When the plaintiff sold to the defendant, he put him in possession of the land; that of itself, is a sufficient title until it shall appear that there is a better in some one else; it is at least prima facie evidence of title. The evidence shows, that the legal estate so far as the title has been investigated is in the heirs of Thomas Dixon, against whom the plaintiff has a decree of the Court of chancery, ordering them to execute titles to him; that title when executed will enure to the benefit of the defendant, if the plaintiff has or does convey to him. It is not probable then, that the heirs of .Dixon will ever question the defendant’s right to the land. It is unreasonable to conclude that any one would be guilty of such a folly. If they should, .the sale by the plaintiff to the defendant, has transferred the equities, and the Court of Equity is always ready to protect him, and to afford the necessary relief. He vías therefore as secure in his possession, as the law. can make him.

The report does not state, whether there was or was not a conveyance from the plaintiff to the defendant, and I am led to conclude from the entire silence of the report on that subject, that the writing copied into the report, is either the only evidence of the contract between these parties, or a counterpart of one entered into by the plaintiff; for it purports on its face to be intended to be made by him, which the defendant has kept out of view. If this be true, it furnishes I think another objection to this defence. In that writing there is an express agreement on the part of the plaintiff, “to pay all law expenses,” and it contains also a provision that “if any claim should come, and said land be taken away, if taken away before the purchase money becomes due,” the defendant should pay rent to the plaintiff. Now the necessary inference from this contract, is that a difficulty about this title, was anticipated by the parties, and the possibility of the defendant loosing the land is provided for; and in the absence of any other claim it is a reasonable conclusion, that the very difficulty which has been developed in this defence, is that against which this contract was intended to provide. There has therefore, been no fraud or concealment on the part of the plaintiff; the defendant purchased with a full knowledge of all the circumstances. The plaintiff has gone on to perform his part of the contract, by taking the necessary measure at bis own expense to perfect the title, and according to this view, there is no foundation for this de-fence.

The defendant’s abandonment of the possession, or his expulsion from it by Bishop Dixon, (if in truth he was disseized by him,) cannot help the defence; in the first case, it is merely voluntary; and there is nothing in this contract, or in the usual covenants of a conveyance, which subjects the grantor to responsibility on account of the unlawful entry of a stranger; no man in his senses would bind himself by such a covenant.

The first ground of this motion is founded on a misconception of the cases of Carter v. Carter, 1 Bailey 217. Bordeaux v. Cave, Ibid, 250, and Hext ads. Morgan (decided in 1829,) and from what has occasionally fallen from the bar in reference to these cases, I am led to conclude, that the impression is not unusual, that want of title in the vendor of land, either in whole or in part, is not a good defence to an action brought at law to recover the purchase money. But these cases inculcate no such rule; they maintain however,, that a Court of law cannot rescind a contract for the sale of land, on account of a partial failure of consideration, on the ground principally, that a Court of law has not the power to do full and adequate j ustice to the parties. It has no authority for example to order a re-conveyance of the land, to which the vendee has title, and the case of Grey v. Handkinson, was an interpolation unknown to the common law. In Morris v. Phelps, 5 Johnson 54, the Ch. J. says, that he was not aware that even a Court of Equity in England had ever undertaken to rescind a sale, because a title to a part of the property failed, except in the case of an exchange of lands. The doctrine of a recission of a contract on account of a partial failure of consideration, is from the civil law, and I see no reasonable objection to it in the abstract, when applied to cases where the objectofthe purchase has been defeated, as in the case of Grey v. Hankinson before cited, and the State v. Gaillard, 2 Bay. 11, and some others of the same class. But. the impracticability of giving it effect in a Court of law, is I think a sufficient justification, for referring it to the chancery jurisdiction. In cases where the vendor has no title, the conveyance to the vendee passed no interest to the vendee, and a re-conveyance is unnecessary ; as a mere trespasser on t'he land, the vendee is not accountable to the vendor for rents and profits, so that a Court of law can supply all the relief that is wanted; and so in the ease where the vendee desires a deduction from the price on account of the vendor’s want of title to a part of the land sold, a discount pro tanto, does all that the vendee-desires, as well as justice to the vendor.

Motion granted.

Johnson'& Harper Js. concurred.  