
    Davidson, Appellant, v. Moss.
    Where property at the time of the sale was incumbered, which fact the vendor did not make known to the vendee, who on the ground of fraud filed his bill to be relieved from the contract, but the vendor before decree removed the incumbrance by procuring deeds of sale thereof, which in all respects placed the parties in the situation contemplated by the contract, and it did not appear that the vendee had in any way been damnified by the incumbrance, nor molested in the enjoyment of the property, a recission of the contract was denied.
    
      [Semble.] If the vendee has sustained no injury by fraud practised by the vendor at the time of the sale, a Court of Chancery will not interpose.
    APPEAL from an order in Chancery, overruling a motion to dissolve an injunction and appoint a receiver.
    The bill filed in this case, stated that Moss, the complainant, on the 89th of February, 1836, purchased of Davidson, a plantation and negroes; paid the purchase money down, except forty-six thousand five hundred and eighty-nine dollars and sixty-eight cents, for which sum he gave his two bills of exchange, drawn on jByrn, Herman & Co., one for six thousand dollars, and one for five thousand six hundred and forty-seven dollars and fifty cents, the first payable the 1st day of January, 1837, the other on the 1st day of March, 1837; and three promissory notes payable to Davidson on the first days of March, 1838, 1839, and 1840, Loach for eleven thousand six hundred and forty-seven dollars and forty cents. And that to secure the payment of the aforesaid bills of exchange and promissory notes, made a deed of trust to Wm. H. Shelton, James Y. McNabb and Etheldred May, on the plantation and negroes aforesaid. Bill charged that said deed was never signed and executed by said Davidson and said May, and that said May never gave his assent to take under said deed, and that said deed was acknowledged by Moss, his wife, and Shelton, but no acknowledgment had taken place as to the other trustees, and that on this probate alone the said deed was recorded. And that said Davidson agreed in express terms, before the sale of said ne-groes, to warrant them sound. And the. bill avers that if said warranty was not inserted, the deed did not carry out the agreement of the parties; and that if said warranty was not inserted it was omitted by mistake.
    Complainant averred, that after the execution of the agreement for the purchase, he took'possession of the plantation and negroes, and from time to time paid sums of money on said agreement. That now there is but one payment of eleven thousand six hundred and forty-seven dollars and forty cents due, which fell due 1st March, 1840, and is yet unpaid except as is hereafter mentioned, and that after taking possession of the negroes, he first discovered the warranty to be false as to two of the negroes, Lewis and Rose, who were both unsound at the time of the sale, and that neither of them ever did any material service and were not worth their support. That Lewis died crazy, and that Rose was at the time of the sale unsound, and is still so; and that said Davidson, before he required more money to be paid on said note, should allow him a credit on said note for the prices and expenses of said unsound negroes. And that Davidson has no right to enforce said deed of trust. That said deed was incomplete in its execution. That said Davidson has attempted to sell under said deed, and has inserted an advertisement in the Mississippian, a newspaper printed in the town of Jackson, for the sale of a portion of the negroes, to be sold on the 25th of April, 1840, and that said advertisement purports to be made and signed by all the grantees in the deed of trust, and that he believes, from an inspection of the manuscript, that it was not signed by said trustees, but by said Davidson’s counsel, and that Etheldred May never gave said Davidson any right to sign his name to any such manuscript, or to make said advertisement in his name. And aliedged, that as there was no authority from one of the trustees, a sale cannot be made by the others. And that there is no authority to sell any of the slaves, under said deed, in the event of default; and that in the event it should be necessary to sell any part of the estate, that they could only advertise and sell the land, as the term used in the deed was “ premises,” which can only apply to the land. And that if this court does not interfere, that said Davidson will sell, without giving him credit for the unsound negroes. And further prays that said Davidson, Shelton, and McNabb, may be made defendants, and that a decree may be rendered to ascertain the value of the negroes, or such damages as he has sustained by the false warranty, and the amount deducted from the balance due on the note aforesaid, and that said Davidson be restrained from selling under the deed of trust, until all the grantees join in the same; and if it is only necessary that part of the property be sold, that the trustees be confined to the land as provided in the deed of trust, and if he is mistaken in the relief and decree asked, that such other relief as the nature of the case requires may be granted.
    The answer admitted, that on the 29th of February, 1836, Moss and his wife made a deed of trust on certain land and negroes as stated in the bill, to secure the payment of certain moneys in it mentioned, and that all said moneys have been paid, except the last instalment for eleven thousand six hundred and forty-seven dollars and forty cents, with interest from 1st March, 1S40, when it fell due, but it is wholly unpaid. That the deed of trust and notice of sale are believed to be correctly exhibited with the bill, and the statements of the bill are substantially correct, but that the bill does not state that when.the sale was made the respondent gave to the complainant a statement, in writing, of the qualities and conditions of the negroes sold, to the best of the knowledge he then had, nor has he ascertained any mistake therein, and that of the two negroes particularly complained of, Lewis and Rose, that ■he had owned them but a short time, when he sold them, and was not able to judge of them, as he was of the others; and that as well as he recollects he represented that Lewis was not of a good disposition, though sound in mind and body; that Rose appeared delicate, and caused some doubt whether she was healthy, and that as to these two negroes, nor any other portion of the property was any fraud practised, but that he took great care to make a full exposition, so as to preclude all cause for subsequent complaint, nor had he ever heard any complaint, of the said negroes or any other part of the property, until the filing of the said bill, either directly or indirectly. And that although a hope was expressed in the bill that defendant would not press collection until this matter was settled, yet he never had any intimations of it, or opportunity for such settlement, but that from the tenor of the complainant’s conduct, he was led to believe that no cause of complaint existed. As proof, ho filed a letter from complainant, after he had used the property for two crops, in which he says he would not sell the negroes, and intimates no objection to any of them. And in further negation of this part of the bill, respondent shows that complainant proposed a sale of the same property to William H. Shelton, and furnished a list of the negroes with their estimated value, in which he valued said Lewis at fifteen hundred dollars, and Rose at one thousand dollars, and this was late in the second year after the purchase of the said property, which appears in the list itself, which was filed, with the affidavit of said Shelton attached; that soon after this Shelton made inquiries of respondent as to the valuation, and that thus he obtained knowledge of its existence, and further shows that the trustees named all indicated a willingness to act in the trust, and that none of their names are used without authority to justify it; that said May is now at a distance, but long ago approved of the use of his name as trustee, and no doubt would now attend to this matter if specially called on; that the other two trustees reside near complainant and are ready and willing to act, having given express consent for the advertisement exhibited with the bill. Respondent further showed that, on or about the 10th day of March last, complainant applied to him, not to advertise the property till the 30th of April, 1840, by which time he would be able to pay the money, and that if he did not obtain this indulgence he could get an injunction and might take the case to the Court of Errors and Appeals, and obtain much time; that upon these considerations he granted the indulgence, and did not advertise till the 24th of April, 1840, when it was made as exhibited in the bill; that this was in the presence of the counsellor, now one of the solicitors of the respondent; and that he had hoped, in consideration of time granted in the new indulgence, and even after the advertisement, that the money would be paid without a sale ; and that if a sale was necessary it would not be prevented by complainant; and that complainant had pursued an evasive course of conduct till the day before the sale, when he is informed application was made to one of the judges of the circuit court, and obtained an injunction; that he had delayed giving an answer to one of the trustees, as to whether he would give up the negroes for sale, as he is informed by said trustee, McNabb; that the indulgence given and assurance of paying at the necessary time for advertising, postponed the day of sale, so that opportunity was afforded for getting this injunction at so late a day of chancery court, that it could not be dissolved during that term; and that since the commencement of this term he has threatened a supplemental bill, pretending to doubt- the title of part of the negroes sold him, which doubt is raised on a marriage contract between this respondent and his present wife; and that on receiving this information he obtained a certified copy, (not knowing where the original was,) of said marriage contract from Jefferson county, where the contract is recorded; and that your respondent and his wife executed and acknowledged a deed of sale of such negroes embraced in that contract, and of such as were embraced in that sale to complainant, and that he procured a deed for the same purpose, confirming the sale of said negroes to complainant, from his only children who are over twenty-one years old, and these deeds being from the only persons living in whom any present or contingent interest could be, he caused to be tendered to complainant, .who would not accept them.
    ■ And respondent further prayed that this may be taken as a cross bill, and afterwards as an original to secure the property and insure the final execution of the trust, and that some one of the trustees or other proper person be appointed a receiver, to manage said property, subject to sale under said deed of trust, according to the terms of it, or of such as the court may make, &c.; and that said Moss be enjoined from removing any of the personal property from Rankin county, where it now is; and that he with his agents be enjoined from interfering with said property to prevent said trustees or any of them from taking possession under the deed of trust to be held subject thereto.
    The complainant filed an amended bill, which stated that after ■ the filing of the original bill the complainant discovered that defendant Davidson, when he sold the land and slaves mentioned in the original bill, had no right or title, nor any power to sell a large number of the slaves purchased by complainant, the number amounting to eighteen, which were valued at the time of the. contract at eleven thousand dollars, but that he held said slaves by virtue of a marriage contract between himself and his wife, prior to their marriage; that they were held in trust by him for the purposes of said marriage contract; that by virtue of said contract the slaves were held by Davidson in trust for the use of Isabella, his wife, during her life, and then for the purposes mentioned in the deed; that under no circumstances had he any right or title in the said slaves; that he could have acquired no right in them which he could have sold, unless the said Isabella had died in his lifetime without children alive at that time; further, that at the time of the sale, of said slaves the said Isabella was alive and is still so ; and that there were four children of said Davidson, — • Sarah, who married Etheldred May, Caroline, Felix G, and Samuel F. Davidson, by another wife; that said Davidson, when making this contract and after it was made, concealed the existence of the marriage contract, and represented himself as the owner of said slaves; that he would not have purchased them if he had known of the marriage contract, as Davidson was in ill health, and is so still; further, that the concealing of the marriage contract and the claiming the slaves as his own was fraud; that he had no knowledge of the marriage contract till he had filed his bill; and further, that one of the negro women died, and two children have been born out of the slaves mentioned in the marriage contract, since the sale; that said Davidson has within a few weeks, tendered deeds of himself and his wife and of his children for said slaves, which he has declined receiving, as he considers himself entitled to a recission of the contract as to tire said eighteen slaves, on account of the fraud and concealment.
    The answer to the amended bill stated: that it adopts and reasserts the allegations made in the answer to the original bill; that the respondent discovers no mistake in the names, description, or condition of the negroes, and denies that he was guilty of fraud in not disclosing the marriage contract, as he had been informed that the marriage contract was inoperative as to the right of said property; that he regarded it as a matter of indifference; that no thought of it was in his mind during the contracting for said property with said Moss; that he has never since regarded it as any difficulty in the title; and that, to quiet all complaint^ he has procured and tendered the deeds exhibited with his answer and cross bill, which, with the warranty in the bill of sale, he is advised, preclude all controversy as to the title; that he thinks the aggregate estimate price was eleven thousand five hundred dollars, instead' of eleven thousand, as stated in the amendment ; that he regards this as unimportant, and prays that the answer and cross bill heretofore filed, together with this answer, be taken as a complete answer to complainant’s original and amended bill, and is a cross bill thereto, with all the parties named in the pleading, and prays that the contract may be specifically executed according to its terms; and that the injunction be dissolved, and the property placed in the hands of the trustees, or if necessary that a receiver be appointed.
    -'Amended bill stated: that since Moss has owned the land and slaves mentioned in the original bill he has greatly improved it, and added to its value; and he asks a recission of the whole contract, and account of the improvements; and that said contract may be cancelled and rescinded entirely, unless he can have a re-cission for the value of the slaves included in the marriage contract.
    Upon these facts defendant moved to dissolve the injunction, and for the appointment of a receiver; which motions the chancellor overruled; and from this interlocutory order an appeal was prayed and granted.
    Thompson, for appellant.
    , As a general rule courts of Equity do not interfere and rescind contracts for personal property on the ground of fraud; and although in some cases it may have been done, yet if a contract for land and slaves be entire, as in the case under consideration, the court would be very reluctant to interpose and rescind, where the title of a portion of the slaves only was defective, but would put the party to his action of covenant for the recovery of damages. Story’s Equity, page 194 and notes.
    The appellee has not been injured by the alledged defect of title in some of the slaves, and cannot be injured; and therefore cannot complain. See 1 vol. Story’s Equity, page 204. The party complaining must-have been «actually mislead to his injury.” Ibid, and cases cited. What injury has or can the ap-pellee suffer ? There must be both a fraud and damage resulting therefrom, to entitle the party complaining to a relief. See 1 vol. Story’s Equity, page 212-13. 12 East, 637-38. 7 John. Ch. Rep. 201. Simon’s Rep. 63.
    Lea, on the same side.
    W. Yerger, for appellee.
    1. The rule of law is well settled, that if a vendor misrepresents a material fact, in relation to' the title or quantity of an estate, though innocently and under a belief of its truth, or if he conceals any material circumstance, which may be calculated to enhance or depress the value of the property in the eye of a purchaser, a court of equity will rescind the agreement; and if encumbrances exist upon property, and are not communicated to the purchaser, he must suppose himself to be purchasing an unin-cumbered title. 1 Yesey, Jr. 224. 1 Dev. Equity, 18. Cooper, 308. 6 Call, 368. 1 Dev. 411. 3 Peters’Rep. 210. 2 Paige, 390. 2 Amer. Equity Dig. 529. 1 Story’s Equity, 393. 3 How. Rep. 114. 13 Peters, 26. 4 How. Rep. 449. 1 Story’s Equity, 218.
    Fraud vitiates every contract; and it is no answer to a charge of fraud, and admission of a concealment of a material fact, to say the party did not recollect it. 10 Yesey’s Rep. 475.
    The admission of concealment is not avoided by the statement, that the party deemed it immaterial to give the information; nor is it an answer to say, that the party had been advised that his title was good, and therefore he did not give information in relation to the cloud which covered it. Though if this last statement would constitute such an excuse for the concealment as would obviate the fraud, inasmuch as it is matter in avoidance, it is necessary for the defendant to prove it by evidence aliundi. 2 Stewart, 280. 1 Bibb, 195. 8 Cowen, 387. 14 Johns. Rep. 63. 1 Gill. & Johns. 272. 1 Dev. Equity Rep. 429. 6 Yerger, 108.
    The contract being fraudulent in its inception, the subsequent tender of the deeds from the wife and children will not wipe away the fraud. 3 Peters’Reports, 210. 2 Vesey, Jr. 155. Gasquet v. Johnson, 2 Louisiana Rep. 517. 1 Wilson, 320. Pralle v. Peele, 
      3 Louisiana Reports, 282. 4 Johns. Rep. 536. Newland on Contracts, 497. An allegation in a bill not denied by the answer, is taken as admitted to be true, especially on motion to dissolve an injunction. 1 How. Rep. 600. 5 Paige Rep. 85. 6 Cranch, 51. 2 Cond. P. Rep. 300.
    ■ The chancellor compelled complainant to seek an entire recission of the contract, as a condition of continuing the injunction. This was asking more of the complainant than he was bound to consent to, as he had a right to a recission of the contract pro tanto at his election, it being a contract capable of division. Decided repeatedly in Kentucky, in reference to sale of lands, where there have been fraudulent misrepresentations. The continuing of an injunction is a question addressed to the discretion of the chancellor, and he is not bound to dissolve, when all the allegations in the bill are denied by the answer. 1 Dev..Equity Rep. 429. 2 J ohns. Chan. Rep. 204.
    It is no answer to the allegation of fraud, to say that the marriage contract was upon record. 4 How. Rep. 449. Morgan v. Elam, 6 Yerger, 108.
   Mr. Justice Trottee.

delivered the opinion of the court.

TLiis is an appeal from a decision of the chancellor, overruling a motion to dissolve the injunction which had been granted. The motion was made upon the facts in the bill, answer and exhibits. In considering this case, we do not think it necessary to notice any thing which appears upon the pleadings prior to the amended bill. For the matters contained in that bill, and the answer to it, raise the only questions which were discussed by the counsel in the argument, or are material to the decision. These facts are, that since the original bill was filed by the complainant, he has discovered that Davidson, the defendant below, had no title to eighteen of the slaves included in the purchase from him, and that they rvere held by Davidson as trustee merely, for his wife and children, according to the terms of a marriage contract between him and his wife anterior to their intermarriage. This contract is referred to and made a part of the bill. This defect of title was concealed from the complainant by Davidson, who represented that he had at the time of the sale a good title to these slaves. For this fraud in the sale, the bill prays a recession of the contract, an injunction to restrain the trustees from selling under the trust deed, &c.

The answer admits the execution and existence of the ante-nuptial agreement, as stated in the amended bill, but denies all fraud. The respondent states that as he had been so advised by counsel, he thought the contract of no efficacy, and its existence did not occur to him at the time he made the sale. And as evidence of the honesty of his intention and the good faith in which he acted, shows that so soon as he learned that the complainant was dissatisfied, and intended to make that contract an objection to carrying the contract of purchase into execution, by paying the residue of the purchase money, he, the respondent, procured a valid deed of release and confirmation from his wife and his four children, the only persons that are or can by possibility become beneficially interested in the slaves, to be made to said complainant, which he tendered to him, but which was refused. The deed is made an exhibit in the answer, and is admitted to be an extinguishment of the only adverse title to the property. These are the material features of this case, and the simple question which they present for the consideration of the court is, whether they furnish a ground for rescinding the contract either in whole or in part. It is assumed in the argument of the counsel for the appellee, that the allegations of the amended bill which charge a fraudulent representation as to the title of the slaves, and also a fraudulent concealment of the outstanding incumbrance, are not denied in the answer, and must therefore be taken as confessed. The answer denies all fraud, and states as a reason for not mentioning the outstanding title, that he did not deem it of any importance, having been advised that it did not affect his title. The reason stated for the omission to disclose this fact is certainly no excuse in law. For whether it be true or false, is a question which can never be decided by any human tribunal in the present imperfect condition of mankind. It is impossible to explore the recesses of the human heart, and detect the motives by which it acts. Such being the case, the laws of the country have laid down the best practicable criterion in such cases, which is perhaps within the reach of human adoption, by referring to the conduct of the party, and determining the intention by that standard. 10 Vesey, 475.

The effect of the admission in the answer of the appellant, that he concealed the defect in his title which is complained of, is not at' all obviated by the reason given, that it escaped his memory. In this view, therefore, of the bill and answer, the proposition contended for is unquestionably correct. For no principle is better established, than that fraud vitiates every contract, and so renders it void both at law and in equity. And in the application of this maxim to the transactions of men and their dealings with one another, no difference is taken ordinarily between a false and deceitful representation of a fact, and the fraudulent concealment of a material circumstance, either in regard to the quality or the title of the subject matter of the contract. And hence, when the subject of the representation or concealment is not equally open to the observation of both parties, or the vendee has not equal means of knowledge with the vendor, the latter is bound by the principles of good faith and common honesty, to state nothing but what is true, and to conceal'no material fact connected with the condition of the article. And hence, if there be an intentional concealment of such material fact in cases where both parties have not equal access to information, it will be deemed fraudulent and avoid the contract. 2 Kent’s Com. 2 ed. 482. And hence, if a vendor sell an estate knowing that he has no title, or that there are incumbrances on it of which the vendee is ignorant, and he suppress such a material fact, there is no doubt the vendee may compel a recission of the contract; 8 Story’s Equity, 818-19. For the purchaser necessarily reposes a trust and confidence in the vendor, that no such defect exists. These views regard the transaction as a fraud in fact, and point to the consequences which the law affixes.

It is urged, however, for the appellant, that there are collateral and subsequent facts in the case which explain the mere omission to.communicate the existence of the marriage contract, and fully reconcile the conduct of the appellant with the claims of good faith. They repel the imputation of a fraudulent intent. Amongst others, the circumstances, that the appellee has never been disturbed in the enjoyment of the property; that appellant proposed to re-purchase the slaves, and that he has since procured a release and confirmation of the title from all those, who are, or can by possibility derive any title- from, the deed- of marriage settlement It is not necessary, however, to constitute a fraud, that there be an evil intention^ For though it be true, that to constitute a fraud in fact there must ¡be a fraudulent intent, yet the law has determined that certain acts may amount to a fraud, however innocent - may be the motive. Thus it has been decided, that if a representation is made as to the quality or condition of an article to induce the vendee to buy, and it turns out to be false, in such case though the false representation is innocently made it will not excuse the vendor, who ought not to make a representation to one going to deal on the credit of it, without knowing that it is true. This is a fraud in law, as well as morals. And hence, notwithstanding that the several parts of this transaction go very far to redeem the vendor from the imputation of any evil or corrupt design in his conduct at the sale, yet we cannot for that reason alone feel authorized to exempt him from liability.

There is another point of view in which, however, these facts may have an important influence upon the present case. We allude more especially to the deed of release and confirmation from Mrs. Davidson, the wife of the appellant, and the four children. This deed relieves the title from all difficulty, and in effect does all which it was the intention of the parties ever to do, that is, to - transfer to, and vest in, the appellee the complete unincumbered title to’ the slaves. This would seem to leave him no ground for complaint. But he insists that by the fraud stated in the bill he. acquired a right to insist on the recission of the bargain, and that - he cannot be estopped by this after transaction. It is admitted, that there1 are cases in-which this could not be done, more especially-where the vendee had been prejudiced by the cloud over his title, or where he had evidently sustained an injury if the con-' tract should-be enforced.- Nothing of that kind appears in .this case, however., The appellee was put into possession at the date of the contract, and has continued in peaceable possession ever since, unmolested by the outstanding incumbrance, of which it seems he never heard until after he had commenced this suit, and filed his original bill. If this1 were a proceeding to compel a performance of the contract, supposing it to have been executory, would the deed here tendered be held .sufficient? 'We think it would. . For though the day fixed for making the. title had ■elapsed, it would in eqdity at least be held a fulfilment of the covenant for title. For though at law time is. considered to be of the e'ssence of the contract, yet in equity it is .not ordinarily so regarded. And therefore we find that in the court of chancery the time for completing the contract is always enlarged, unless it appears that the parties deemed it of importance, or that the non- "■ compliance has produced an injury to the party against whom it is sought to be enforced. 2 Sch. & Lefroy, 347, 684. This is also most dearly the opinion of the very able jurist who decided the case of Garnett v. Macon, 6 Call. That case was similar to the present, except that it was an executory contract for the .purchase of land, which at the time of the sale was equitably charged with payment of debts, of which notice came to the purchaser between the date of the contract and the time when it was to be executed. The rule stated by Judge Marshall is, that a specific performance will not be decreed,en the application ofithe vendor, unless his ability to make such a title as he agreed to make is unquestionable. {The ground taken against completing the contract by the vendee was, the. existence of the outstanding incumbrance, .of which he had no notice. ■ There the incumbrance was removed, but net at the time specified for conveying the title. The ■pourt then proceeds to observe, that “ courts of equity compel the performance of contracts, because it is the intention of the parties that they shall be performed. But the- person, who demands it must be in a condition to do substantially all that he has promised. But kt what time this capacity must exist;-whether it must be at - the date of the contract, at the time it is to be executed, or at the. time' of the decree, depends upon circumstances which may vary with every case.-” In such case -the inquiry must be, whether the vendor could at the time have conveyed such title as the vendee had a right to demand; if he, could not, then, whether he can now, and if he can, whether there has been such a change of circumstances that a court of equity ought not to compel a vendee to take it. In that case the court refused to decree performance, because a material change had taken place in regard to the land, after the period fixed for making the title, which resulted greatly to the prejudice of the vendee. And yet it is quite evident that if the circumstances of the case had not shown that the time fixed for the execution of the agreement was deemed of importance by the parties, so as to produce an injury to the vendee, the decision would have been different.

The case of Hepburn & Dundass v. Auld, 5 Cranch, 262, was determined on the same ground. The case of Brashier v. Gratz et al. 6 Wheat. 528, arose on a contract for the sale of lands, for the title to which suits were then pending in Kentucky. The sale was in March, 1807. Brashier gave his notes for the purchase money and agreed to attend to the prosecution of the suits. He gave twenty-two dollars and fifty cents an acre. The suits were not pressed to a decision. In 1811, the fees were demanded of Gratz, who paid them. Brashier about this time went to Philadelphia, and his notes being protested for non-payment, Gratz requested him either to pay them or that the contract should be rescinded, Brashier would do neither. He became insolvent, and Gratz took the suits into his own hands, which were decided in his favor in 1813. About this time lands rose suddenly in value, when Brashier tendered payment of his notes, and demanded a conveyance of the land. And under these circumstances, the court held that he was not entitled to a specific execution of the contract. The rule that in equity time is not of the essence of the contract, is not of universal application. Circumstances may be so changed, that the object of the party can be no longer accomplished, and he who is injured by the failure of the other contracting party, cannot be placed in the situation he would have stood if the contract had been performed. Upon the analogy of these cases, we think there is no difficulty in determining the present question. In this case the contract was executed, but that makes no difference so far as the principle is concerned. The contract is fulfilled in this case, and the covenant of title fully kept by the tender of the deed, showing a capacity to convey at any time before a decree. Here there has been no change of circumstances ; uo evidence that the object of the appellee in the purchase has been defeated, or hindered, or embarrassed by the existence of the incumbrance complained of. He is placed by it in the situation he desired by the purchase, the cloud is removed from his title, and he has sustained no injury. There is no proof of any loss or damage .by the appellee in consequence of the defect alledged. And in the case of Boyce’s Executors v. Grundy, 3 Peters, 210, at was held, that in the absence of such proof, if the party is able to make title when the bill to rescind the contract is filed, and so answers and duly sets out the title to be tendered, it may be- a good .answer do the bill. That is virtually the case here. There the grounds for setting aside the contract were, defect of title' in the Vendor, and false and fraudulent representations ih regard to the condition, as well as the title of the lands sold. That case so far as the principle goes, decides this. Hence we conclude, that though there may have been a fraud practised by the vendor at the time of the' contract, the vendee has not sustained any injury, arid therefore has no claim to the relief which he seeks. íraud without a consequent damage,can give no ground for an action, or to be relieved from the contract. It is stated by Judge Story in his Equity, vol. 1. p. 212, that Courts of Equity do not-sit, any more than courts of law, to enforce moral obligations, or correct unconscientious acts which are followed by no loss or damage.” And in Bacon v. Brown, 7 J. Ch. Rep, 201, it is said that fraud accompanied by a damage, will entitle'the injured party to relief in any court of justice. It is therefore quite evident to us, that in any point of view in which this case can be considered, there is no ground for -setting' aside the contract. • ,

The decree of the chancellor must be reversed, and the injunction • dissolved. ’ . ;  