
    Green, Appellant, v. Finucane et al.
    
    Where the vendee at the time of his purchase knew that the vendor had only an equitable title, and took a bond for titles, and executed his notes in instalments for the purchase money; and it appeared that the vendor would be able to make title, and had used diligence to do so, but had-been necessarily delayed in procuring some orders of the Probate Court for that purpose, the Chancellor refused to enjoin the collection of the notes.
    APPEAL from Chancery.
    This was an appeal from an order of the Chancellor, dissolving an injunction which had been granted to the appellant, to restrain and enjoin further proceedings at law by Henry B. McDonald, one of the appellees, to recover the amount of a promissory note, which had been made by the appellant.
    The grounds of the application for the injunction as stated in the bill which was exhibited by the appellant in the court below, were, that he gave the note which was sued on by McDonald, together with another for the same sum, amounting altogether to the sum of two thousand dollars, to George Finucane and Joseph W. Barnes, to secure the payment of the - purchase money for a lot in the town of Jackson, which was sold to him by them. That they executed to him at the time of the purchase a penal bond conditioned to make to him a title in fee simple, with general warranty, when the last payment should be made, according to the terms of the contract. That he went into possession of the lot and made valuable improvements on the same. That at the time of said purchase, Finucane represented that he and Barnes could make him a good and indisputable title to the lot, and that he made the purchase on the faith of that representation. That he had tendered the whole purchase money and demanded a title, which Finucane refused to receive, stating that he and Barnes had no title and could make none. He then stated an outstanding title in the heirs of Dickson and Caldwell.
    Finucane in his answer denied the representation charged in the bill as to the title, but stated that he did represent that he and Barnes could procure a good title. The lot was originally purchased of the state by Dickson and Caldwell, who, as he believed, have paid the price agreed to be given for it. That Dickson transferred his interest to Caldwell, who sold the same to Finucane and Barnes, and gave them a bond for a title. That he had instituted proceedings to procure the title from the representatives of Caldwell, who did not object to his title, when under a proper proceeding it can be properly made, and that he is ready to make and deliver a deed with full covenants, according to the condition of the title bond. And that the appellant was fully informed of the condition of the title at the time he made the purchase. Pie also stated that appellant was put in possession, and has continued in peaceable possession of the lot.
    ■ The answer of McDonald stated, that he was a purchaser of the note on which he commenced suit for a valuable consideration, and without any notice of the grounds of defence relied on by the appellant, who, as the answer alledges, informed him that it was a good note, before he purchased it. cThat Finucane is solvent, but Barnes is not.
    Complainant also alledged, that he held an account on Barnes, which he agreed to credit on the note, and that Barnes is insolvent.
    Work, for appellant.
    As the injunction was retained by the chancellor as to Finu-cane, and dissolved as to the demand of McDonald, it is supposed that decision was produced by the allegations in the answer of McDonald, which attempted to create the impression that Green, the complainant below, had waived all equity against the note in his hands, by a promise to pay the same. The answer is far from making the direct allegation that Green promised to pay the note, or waived all equity against it. There is an attempt at an indirect statement of the kind, which is evidently labored and insincere. But if the direct allegation had been made in the answer, it would not have been availing to McDonald, either on a motion to dissolve, or on trial without proof of its truth. The statements of the answer are an attempt to introduce new and affirmative matter not in response to any of the allegations of the bill; but by way of avoidance to counteract the equity Green had against the notes in the hands of Finucane and Barnes.
    The case of Hoit v. Ten Eyck, 2 Johnson’s Ch. Rep. 87, lays down the doctrine explicitly, and shows what is avoidance, and that it must be proved by the defendant. Vide 3 Mon. 186.
    It is alledged in the bill, and not denied in any answer, that Barnes is insolvent, and that he agreed to allow an account of one hundred and eighty-two dollars, &c. as a set-off against so much of one of the notes. McDonald attempts to controvert the right to the set-off, by insisting that the note was his, and known to be his, before the creation of the account; but this is a statement in avoidance, and not proved. Though the special prayer of the bill is for a set-off against the judgment of Finucane, the general prayer of thé complainant, Green, may insist on an offset against the note in the hands of McDonald, 2 Atkyns, 141. 1 Bibb, 469.
    Where there is an allegation of insolvency, or an agreement to set-off, equity has jurisdiction to do so, and will effect it. 4 Lit-tell, 155.
    Shelton, for appellees.
   Mr. Justice Teottee

stated the case, and delivered the opinion of the court.

The facts in the record bring this case completely within the rule laid down by this court in the case of Philip Coleman v. Matthew Rowe, decided at the present .term. The purchase money is here payable by instalments as in that case, and partial payments were made on the note first payable, circumstances which we deem conclusive evidence of the intention of the appellant to pay the money at all events, and to rely upon his remedy at law upon the covenants in the bond. The tender of the purchase money by the vendee, and the demand of the title are the only circumstances which distinguish the present case from that of Coleman and Rowe.

When the payment is to precede the conveyance, or when the covenant to pay and that to make title are mutual and depen-dant, it would seem that the vendor was bound to convey at the time stipulated, upon payment of, or an offer to pay the purchase money, or the vendee may elect to sue upon' the covenant, or to claim a rescisión of the contract. This is stated to be the rule by the supreme court of New York, in Robb v. Montgomery, 20 J. R. 16; and by the Supreme Court of the United States, in the case of the Bank of Columbia v. Hagner, 1 Peters, 465. In the last case, time is said to be of the essence of the contract, and many authorities are referred to by the judge in delivering the opinion, to sustain the doctrine. This, however, is no where stated to be the universal rule, and the time may be enlarged in equity, and it has frequently been done, and the agreement carried into execution, notwithstanding , the action at law was lost by the default or neglect of the vendor. Courts of equity in such cases examine the causes of delay, and ascertain how far the day named was deemed material by the parties. This was so considered in the case of the Bank v. Hagner, and is expressly recognized as the rule by Lord Redesdale, in Davies v. Horne, 2 Sch. & Lef. 347 ; and also in Lennox v. Napper, ibid. 684.

In the case before us, the vendee is not seeking to rescind the contract, but to enforce it, and is asking to have the collection of the purchase money restrained. The answer of Finucane expressly states, that at the time of the contract, the title to the lot was in Dickson and Caldwell, from whom he and Barnes had purchased, and that fact was well known at the time to Greene. The title is in no worse condition now than it was at the date of the contract, and the only reason why it has not been procured, is the delay in obtaining the necessary orders of the probate court, which are rendered necessary by the death of both Caldwell and Dickson. The title bond from Caldwell to Finucane and Barnes, shows an equitable title in them which can be enforced. Under these circumstances, there is good reason for the delay in conveying the title; and from the fact that Green was -put into possession, and has been continued in it without disturbance, we do not incline to think the precise day fixed in the contract for making the deed, was deemed important by the parties. In this predicament of the case, Green has no right to complain of the delay. It is well settled, that if the purchaser is aware of the condition of the title at the time of the contract, equity will not relieve him. This has been so ruled in a variety of cases by the most respectable courts of judicature.. Indeed, it is a principle of universal application. In Craddock v. Shirley, 3 A. K Marshall, 289, the purchaser of slaves applied to a court of equity to be relieved from the payment of the purchase money, on the ground of a failure of title, which fact as the bill alledged, was concealed by the vendor. The answer denied the fraud, and stated that the purchaser was fully acquainted with the condition of the title at the time of the sale, and purchased relying on the warranty of the vendor, and his ability to prevent the success of the adverse claim. In view of these facts, the court say they ha.ve seldom seen a case where there was less pretext for relief in equity. In Miller v. Long, 3 A. K. Marshall, 335, the same principle is recognized, and applied to the case of a contract for a sale of land. This is also the doctrine of the case of Greenleaf v. Cook, 2 Wheat. 13. 13 Sarg. and Rawle, 386.

The record in this case fully establishes the fact that Green must have been acquainted with the state of the title, and the contingencies of procuring the proper conveyance from the represent tatives of Caldwell and Dickson. The proper means have been resorted to by Finucane to obtain the title from the hens of Caldwell, in whom it now resides in consequence of the transfer to Caldwell by Dickson of his interest in the lot. Caldwell’s representatives have never asserted any adverse claim to the lot; but on the contrary are willing to make a title so soon as they may become authorized, by the decree of the probate court. The delay in procuring the title has arisen, then, from the forms of the law, which upon the death of Caldwell rendered it necessary to obtain a decree of the probate court. Under these circumstances the proper inquiry is, not whether Finucane was able, at the time of the contract, to convey the title, but whether he is able to do so, or will be able in a reasonable time. If he is, or will be, the purchaser, Green, ought not to insist upon being discharged from his contract, or to resist the payment of the money on the mere ground of a defect of title. This is laid down as the true rule by the court of Appeals in Kentucky in the case of Colton v. Ward, 3 Munroe, 313. 1 Maddock’s Ch. 349.

We do not deem it necessary to notice the points raised in regard to the equities between Green and M’Donald, for the latter is protected by the failure of Green’s equity as against Finucane and Barnes under whom M’Donald claims title. The decree of the chancellor dissolving the injunction as to M’Donald, must be affirmed. The decree as to Finucane and Barnes, is not before us, and therefore we cannot notice it. They might have appealed from the decree, but did not see proper to do it, and it is not therefore open to the observation of this court.  