
    *Beale v. Seiveley and Others.
    August, 1837,
    Lewisburg.
    (Absent Brooke and Cabell, J.)
    Sale of Land with General Warranty — Where Vendee Relieved against Payment of Purchase Money.— Where a vendee Is in possession of land under a conveyance with general warranty, and the title has not been questioned by any suit prosecuted or threatened, such vendee has no claim to relief in equity against the payment of the purchase money, unless he can shew a defect of title respecting which the vendor was guilty of fraudulent misrepresentation or concealment, and which the vendee had at the time no means of discovering.
    Vendor and Vendee-Acceptance of Conveyance, — What shall he deemed an acceptance by a vendee, of the conveyance made to him by the vendor.
    Appeal from a decree of the circuit supe-riour court of law arid chancery for Augusta county.
    In July 1830, Charles Beale filed his bill in the superiour court of chancery for the Staunton district, setting forth, that in 1825 he purchased from, one Edward Wood a tract of land in Pocahontas county, described as part of lot number 5, in a survey said to contain 104,000 acres,- and known as the Sherwood survey; the tract so purchased adjoining the lands of Warwick Gatewood and James M. Wood. That for this land he was to pay Edward Wood S00 dollars in May or June 1825, 350 dollars in August 1825, and five subsequent instal-ments of 380 dollars each, making in all 2750 dollars; and Wood was to make him an undoubted title in fee simple to the land, as would appear by a title bond executed by Wood, and exhibited with the bill. That complainant’s object in making the purchase was to settle some of his children on the land, and he would not have purchased, if he had entertained any suspicions of the title. That previous to the contract with Wood, complainant had heard some rumours that Wood’s vendor, a certain Brown Jenks, had not a sufficient title; *but at the time of the purchase, Wood assured the complainant that Jenks had procured an undeniable title; and complainant, having great reliance on the integrity and fair dealing of Wood, made no examination into the title, and had since paid the two sums of 500 dollars and 350 dollars, and one of the bonds for 380 dollars. That Wood had at various times afterwards repeated his assurances that the title was unquestionable, and had promised to furnish the evidence of it, but had never done so. That in the fall of 1828, Wood sent to complainant a deed for the land (which was exhibited with' the bill); but complainant’s doubts of the sufficiency of the title being" now very strong, he never accepted that deed, or spread it on the record as evidence of title; and he had strong reason to believe that an insufficient title had been knowingly and fraudulently imposed on him. -That Wood had lately avowed that himself and Jenks were, and had always been, in partnership in selling the lands of the Sherwood survey. That according to information derived from Wood himself, the only title papers which Jenks had for the land sold to complainant, were a deed from Robert Penell and wife (exhibited with the bill) and a similar deed from Joseph Meredith and wife, each conveying to Jenks an undivided seventh of a tract of 18,000 acres, which, from anything in those deeds, was not ascertained to be part of the Sherwood survey at all; and if it should turn out to be in fact a part of that survey, yet it did not appear what part it was. That the deeds from Penell and Meredith had never been properly authenticated and recorded, and the right of dower of mrs. Penell had never been properly relinquished. That although these deeds were the only conveyances which Jenks and Wood had for land in the Sherwood tract, yet they had surveyed the whole tract of 104,000 acres (whereof they shewed to complainant a plat, at the time he was in treaty for the land sold to him) and they had offered to-sell to *complainant any part of the said Sherwood tract, except such parts of lots number 1 and 2, as had been previously sold. That the tract of 18,000-acres, of which two sevenths only were conveyed by Penell and Meredith, had never, as complainant believed, been divided : that by an order, purporting to be made at the instance of the heirs of Joseph Penell deceased, a division had indeed been directed by the county court of Randolph, but that order did not appear to have ever been executed, and complainant had heard of no other. That as the parties who sold to Jenks claimed as devisees of Joseph Pen-ell deceased, to whom' the land was patented, complainant was advised that the will, unless executed according to the statute of Virginia, could convey no title to the la>nd devised; and as it was executed in another state, he required proof that the forms necessary to constitute a good devise of Virginia lands had been observed; he had never seen the will, and believed it had never been recorded in this state. That complainant, trusting to Wood’s assurances, had expended large sums in improving the land sold him ; but he now believed that he had been deceived by Wood, and that no-title could be made for the land. That Wood had transferred two of the bonds for the purchase money to George Seiveley, who had instituted suits thereon against complainant, and recovered judgments, which he was threatening to enforce by execution. Wherefore the bill prayed that Seiveley, Wood, Jenks, and the devisees of Joseph Penell deceased might be made parties thereto : that Seiveley might be injoined from proceeding on his judgments: that Jenks and Wood might say whether they were partners in the sale of the land purchased by complainant, and what title they had thereto; whether the tract of 18,000 acres were part of .the survey of 104,000 acres, and if it were, where it was situated; and whether they and each of them had not offered to sell to complainant arid others *any part of the tract of 104,000 acres: that Wood might be decreed to make a good title to complainant for the land sold him; and if he could not do so, then that the contract might be rescinded, the purchase money refunded with interest, and Wood compelled to pay the complainant for his improvements : and general relief.
    The title bond referred to in the bill, and therewith exhibited, was dated the 3d day of August 1825. Wood thereby bound himself to Beale in the penalty of 5500 dollars, with condition reciting that he had sold to Beale a tract of laud in Pocahontas county, designated by the number 5, on the plat of a survey of 104,000 acres known as the Sherwood survey; the land sold being only the land in lot number 5, which lay south of the land of James. M. Wood, and not including the land lying within the lines of Warwick Gatewood’s survey: and providing that if Wood, when required, should make a good and sufficient title in fee simple to the said Beale, his heirs or assigns, then the obligation to be void.
    The deed executed bv Wood to Beale in pursuance of the foregoing bond, was a conveyance from Edward Wood and Sarah his wife, dated the 25th of November 1828, whereby the said Wood and wife, in consideration of 2250 dollars expressed to be paid them by Beale, granted, bargained and sold to him a certain tract of land in lot number 5, in the Sherwood survey, particularly described in the deed by metes and bounds, and appearing, from that description, to adjoin the land of James M. Wood. This tract was stated in the deed to contain 2000 acres more or less; and all the land within the lines of Warwick Gatewood’s survey, on which he then resided, was expressly excepled out of the conveyance. The deed further stated that the land thereby granted was surveyed in the name of Joseph Penell in the year 1786, and patented to him in 1787; and was conveyed, by the heirs of Penell, to Brown Jenks, who ^'conveyed it to Wood ; as would more fully appear by examining the offices of Pocahontas and Randolph counties, and the register’s office at Richmond. Wood and wife covenanted with Beale, and his heirs and assigns, to warrant ’ and defend the land against all and every person or persons whatsoever, claiming or to claim the same. The privy examination and acknowledgment of Sarah Wood, and the acknowledgment of Edward Wood, were duly certified by two justices of the peace.
    The deed from Robert Penell and wife to Brown Jenks, exhibited with the bill, was a conveyance dated the 25th of April 1825, whereby the said Penell and wife, of Delaware county in the state of Pennsylvania, in consideration of 1000 dollars expressed to be paid them by Jenks, bargained, sold and conveyed to him their right, title and interest (being one equal undivided seventh part) of and in a tract of land situate in Randolph county in Virginia, supposed to contain 18,680 acres, which Joseph Penell, who in his lifetime was seized thereof, devised by his last will to his sons Robert and Joseph Penell, his son in law Joseph Meredith, and his grandsons Penell Palmer, Penell Hammoa, Penell Churchman and Lewis Penell, to be divided among them part and share alike. This deed contained only a special warranty against Robert Penell and his heirs, and persons claiming by, from or under him or them. The acknowledgment of Robert Penell and his wife was certified by a single justice of the peace of the said county of Delaware ; and the certificate respecting mrs. Penell’s acknowledgment was not conformable in other respects to the requisitions of the Virginia statute of conveyances. But the deed appeared, by the certificate of the clerk of Randolph county court, to have been recorded in that court.
    The deed from Joseph Meredith and wife to Brown Jenks, referred to in the bill, though not exhibited therewith, was after-wards filed in the cause. It was in all *respects similar to the deed from Robert Penell and wife, conveying an undivided seventh of the tract of 18,680 acres, and exhibiting the same defects in the certificate of acknowledgment as appeared in the other deed. This deed also was recorded in Randolph county court.
    With the bill the complainant also exhibited an order of the county court of Randolph, dated in June 1825, purporting to be made on the motion of Robert Pencil arid others, the heirs of Joseph Penell senior deceased, by which the court appointed Thomas O. Williams and three others commissioners to make partition of the lands owned in Randolph county by the said heirs of Joseph Penell senior, and report the same to the court. No report appeared to have been made under this order.
    The injunction prayed in the bill was awarded.
    Seiveley put in an answer to the bill, in which he disclaimed all knowledge of the contract between the complainant and Wood, and alleged that he had acquired the bonds whereon his judgments were obtained against the complainant, for a valuable consideration.
    Jenks answered, that the county court of Randolph having admitted the deed of Robert Penell and Meredith to record, he had not been aware of any defect in the relinquishment of dower on the part of mrs. Penell or mrs. Meredith, and was confident that if any such defect existed, there would be no difficulty in procuring-relinquishments in due form. That respondent had not been aware, until recently, of the necessity of having the wilt of Joseph Penell senior recorded in Virginia ; but this had been lately done. That the commissioners appointed by the county court of Randolph to divide the lands devised by the said will, having failed to report the division which they made, respondent after-wards proceeded in the same court, in chancery, against the heirs of Joseph Penell senior, and procured other commissioners to be appointed, who had since reported, and assigned to respondent the land which he sold to his codefendant *Wood, and which was subsequently sold by Wood to the plaintiff; which land was a part of the 18,000 acre tract. That the plaintiff had always had peaceable possession of the land sold him, and was in no danger of being disturbed. Respondent denied that there was any partnership between himself and his codefendant Wood in the sale of lands in the Sherwood survey, or that he had ever pretended to own the whole of those lands, or offered to sell the whole to the plaintiff or any other person. He denied that the plaintiff was induced to purchase the land which he actually bought from Wood, by any representations of Wood respecting the title. On the contrary, he alleged that the plaintiff was anxious to purchase that very land from respondent, while the negotiation between the respondent and Wood was pending, and made a proposition to respondent to purchase the same on better terms than those offered by Wood, which proposition respondent felt himself bound to reject, and did reject. That at the period when Wood completed his purchase from respondent, the plaintiff accompanied him to respondent’s house in Randolph county, and there examined the title papers, which he pronounced to be regular and correct, and thereupon advised Wood that there was no danger in making the purchase.
    With his answer, Jenks exhibited the will of Joseph Penell senior, by which it appeared that the devise of the lands in Randolph county was correctly set forth in the deeds (already stated) from Robert Penell and Joseph Meredith to Jenks. He also exhibited the record of his suit in the county court of Randolph, against the devisees of Joseph Penell senior, for partition of the lands so devised; whereby it appeared that in December 1830, a decree was made for partition, according to the provisions of the will, and the deeds from Robert Penell and Meredith to Jenks, and commissioners were appointed to make such parti-fion and report the same to *the court: that in January following, the commissioners reported a division of the said lands, in which lot number 5, and another lot were assigned to Jenks: and that the court thereupon approved the said report, and awarded to Jenks possession of the lands so assigned him.
    Wood answered, that it was not true that the plaintiff’s confidence in the title of the land he had purchased from respondent, arose from any representations made by him. He alleged that the plaintiff applied to him to purchase the land, before Jenks had made any deed for the same; and that the plaintiff himself accompanied the respondent when he went to meet Jenks and consummate the purchase; whereupon, Jenks having exhibited the deeds from Robert Penell and Joseph Meredith, and respondent having proposed to defer the business until he could consult counsel as to the sufficiency of these papers, the plaintiff requested that the papers might be committed to him for examination, saying that he could judge of the title as well as a lawyer. That respondr ent, having great confidence in the judgment and intelligence of the plaintiff, gave him the papers for examination ; and the plaintiff, having examined them, declared that the title was good, and that if respondent would sell him the land, he would consent to take Jenks’s title directly to himself, without further enquiry. That respondent declined to sell the property at that time, but observed to plaintiff that if he considered Jenks’s title good, respondent would close the contract and accept a conveyance without further delay; which was accordingly done, the plaintiff aiding during the whole transaction with his advice. Respondent denied that he ever gave the plaintiff any assurance that the title was indisputable, the plaintiff being himself much better acquainted with it than respondent was. He denied that the deed executed by respondent to the plaintiff was sent to him, as alleged in the bill; *on the contrary, he said that the deed was delivered to the plaintiff by the respondent, and when it was delivered, he made no objection to the deed or to the title; and therefore he denied the allegation that the plaintiff never accepted the said deed. He denied the existence of any partnership between Jenks and himself, or that an insufficient title had been knowingly or fraudulently imposed on the plaintiff. And as the plaintiff held respondent’s deed with general warranty, and had never been disturbed in the enjoyment of the land, he insisted that he had no right to withhold the purchase money. He further stated, that the tract of 104,000 acres was called the Sherwood survey, because Sherwood made it for the Penells; that for his trouble in making it, a part was given to him; that the residue was patented to Thomas and Joseph Penell, the locators, separately; that they both sold out portions in their lifetime; and that Joseph Penell senior, at the time of his death, still owned the 18,000 acre tract, embracing the land sold to the plaintiff.
    With his answer Wood exhibited a deed from Jenks and wife to him, dated the 27th of May 1825, whereby Jenks and wife, in consideration of 1000 dollars expressed to be paid them by Wood, conveyed to him a tract of land in lot number 5, in the Sherwood survey, containing two thousand acres more or less. The land was described in the deed by metes and bounds in the same manner as in the conveyance from Wood to Beale; and 88 acres lying on the southwest side of the tract, which were stated to belong to Warwick Gatewood, and to be the land on which he then lived, were expressly excepted out of the conveyance. This deed contained a general warranty upon the part of Jenks and wife. The acknowledgment of Jenks, and the privy examination and acknowledgment of his wife, were duly certified by two justices of the peace, and the deed was thereupon recorded in Pocahontas county court.
    
      *As to the defendants other than Seiveley, Jenks and Wood, the bill was taken for confessed.
    In the progress of the cause, the defendants filed the record of another suit for partition, brought by Jenks in the circuit superiour court of law and chancery for ■Randolph county, against the devisees of Joseph Penell senior. This suit was instituted in August 1831. On the 26th of September 1832, the circuit court made an order appointing three commissioners to divide the lands in Randolph county, which were devised by the will of Joseph Penell senior, between the plaintiff and defendants in the suit, assigning to the plaintiff two sevenths, the shares of Robert Penell and Joseph Meredith. The commissioners (the same who had made the division in the suit brought by Jenks in the county court of Randolph) accordingly reported that they had made a partition of the said lands, and had assigned lot number S, and another lot, to the plaintiff Jenks. On the 26th of April 1833, the court confirmed the report of the commissioners, and decreed that the plaintiff and defendants hold in severalty the lands assigned to them respectively by the said report: allowing the defendants (all of who in appeared to be nonresidents) three years to shew cause against the decree. Beale objected to the admission of the record of this suit as evidence, 1. because he was no party therein; 2. because it was not conclusive of the rights of the nonresident defendants; and 3. because the suit was instituted after the commencement of Beale’s suit against Jenks and others, and in fraud of his rights.
    It appeared that while the suit was pending, the acknowledgments of mrs. Penell and mrs. Meredith, of the deeds executed by Robert Penell and Joseph Meredith respectively to Jenks, were taken anew before two justices of the peace. The justices certified the privy examination and acknowledgment of mrs. Meredith, in the form prescribed by the statute: but though mrs. *'Penell’s privy examination and acknowledgment were also certified, it appeared from the certificate itself that her husband was at that time dead. Both these certificates were admitted to record in the court of Randolph county.
    Many depositions were taken and filed by the parties. Those taken on behalf of the plaintiff Beale appeared to be chiefly intended to prove that Jenks and Wood were partners in the sale of lands in the Sherwood survey, that they were in possession ■of plats of those lands, and that they offered to sell the whole or any part which remained unsold. This court, however, considered the evidence relating to these points as unimportant in the cause. The depositions taken lor the defendants proved, that Beale was present when Jenks and Wood were engaged, in May 1825, in laying off lots in the Sherwood survey; that he examined the deeds from Robert Penell and Meredith to Jenks, and that from Jenks to Wood; that he expressed to Wood his opinion that Jenks’s title was a good and sufficient one; and that he had been in possession of the land purchased from Wood, ever since October 1825.
    The circuit court of Augusta county, at the hearing of the cause on the 29th of November 1833, decreed that the injunction be dissolved, without damages, and that the bill be dismissed with costs. From this decree, the plaintiff appealed.
    The attorney general, for the appellant.
    Johnson, Peyton and Baldwin, for the appellees.
    
      
      Sale of Land with General Warranty — When Vendee Relieved against Payment of Parchase Money.— Where a vendee is in possession of land under a conveyance with general warranty, and the title ha.s not been questioned by any suit prosecuted or threatened, such vendee has no claim to relief in equity against the payment of the purchase money, unless he can show a defect in title respecting which the vendor was guilty of fraudulent concealment or misrepresentation, and which the vendee had at the time no means ol discovering. As so holding the principal case is cited with approval in Peers v. Barnett, 13 Gratt. 416; Max Meadows, etc., Co. v. Brady, 92 Va. 81.82,83,84, 23 S. B. Rep. 845. In this last case, Keith, P., delivering the opinion of the court, said (p. 83): "We have quoted thus fully from the case of Beale t>. Seiveley because the principles of law are there laid down with clearness and precision and the authority of that case has, so far as we are informed, never been called in question." See also, foot-note toKoger v. Kane, 5 Leigh 606; foot-note to Faulkner v. Davis. 18 Gratt. 651.
      But in Wamsley v. Stalnaker. 24 W. Va. 320, in discussing the question as to the jurisdiction of a court of equity to enjoin or stay the collection of the purchase money of a tract of land by a vendor, where there are covenants of warranty, of good right to convey, etc., and the vendor has no title to the land or a part thereof, or where there are liens thereon, Judge Green, who delivered the opinion of the court, said that, if they were not bound by precedents, they should consider that the correct principles were laid down by Judge Tucker, in Beale v. Seiveley, 8 Leiah 673. He then quotes that part of Judge Tucker's opinion included in pages 073-875, and continues by saying; "These principles thus stated by Judge Tucker I would be disposed to adopt, if I did not feel constrained to depart from them by the decisions in Virginia both prior and subsequent to the rendition of this opinion, and also by the decisions in West Virginia. Judge Tucker admits, that these principles have been departed from In Virginia. He says on this subject, p. 675: ‘With us it cannot be denied that the practice has been morelax. But even with us relief is only given to a purchaser who has obtained his deed, when there has been an actual eviction, or where a suit is depending or threatened, or when the vendee placing himself in the attitude of the superior claimant can show a clear outstanding title or incumbrance. Ralston v. Miller, 8 Rand. 44; Yancey v. Lewis, 4 H. & M. 390; C-rantland v. Wight, 5 Munf. 205; Koger et al. v. Kane’s Adm’r, 5 Leigh 606; Richards v. Mercer, 1 Leigh 125. * * * But notwithstanding these relaxations I am aware of no case in which the rights of the party have been extended in equity beyond his covenants.’ In my judgment this conclusion drawn by Judge Tucker from this and other Virginia cases is inaccurate, and ‘the rights of the vendee have by the decisions both in Virginia and in west Virginia in numerous- cases been extended in equity beyond the covenants he has taken for his protection.’ But I must say I am indisposed to extend these rights of the vendee in equity, any further than I am compelled to do so by the decided cases, which are binding authorities on us or beyond such cases as come clearly within the meaning on which these cases must have been based.” He then says that, according to his understanding, the rule which has prevailed both in Virginia and West Virginia is, the one laid down in Ralston v. Miller, 8 Rand. 49,— that a court of chancery will not enjoin the payment of the purchase money after the purchaser has taken possession under a conveyance of general warranty unless the title has-been questioned by a suit either prosecuted or threatened, or unless the purchaser can show clearly that the title is defective.
      In Peers v. Barnett, 12 Gratt. 416, it is said that Ralston v. Miller, 8 Rand. 44, Koger v. Kane, 5 Leigh 606, and Clarke v. Hardgrove. 7 Gratt. 399. extended the relief to cases when the vendee, placing himself in the position of the superior claimant, can show clearly that the title is defective.
      See further, monographic note on "Injunctions” appended to Claytor v. Anthony-, 15 Gratt 518.
      The principal case is also” cited in Morgan v. Glendy, 92 Va. 90, 22 S. E. Rep. 854.
    
   PARKER, J.

If the appellant had not received his deed in the present case, containing a general warranty, it might somewhat vary his equitable rights. He admits in his bill that it was sent to him soon after its date, but says he never accepted it, or spread it upon the record as evidence of his title. Wood, in his answer, *swears that he delivered it to the appellant, and that he made no objection to it. It is precisely such a deed as, under the title bond, Wood was bound to make. It is dated in November 1828, and Beale was then in possession of the land, and had been in possession from October 1825. There is no evidence, or even averment, that he refused to accept the deed or offered to return it, or that he relinquished the possession of the land. It was near two years after he had received the deed (for the purpose, as he alleges, of examining the title) before he brought this suit; and under these circumstances, he must be considered as accepting and holding under it. Then he is a vendee in possession under a deed with general warranty, and his title has never been questioned by a suit either prosecuted or threatened, nor does he pretend that his warrantor is in insolvent or failing circumstances. The only ground left for entertaining him in a court of equity is that of fraudulent combination between his vendor and Jenks, from whom Wood purchased. To enable a court to relieve a vendee in possession under a deed with warranty, it must appear that the vendor knew of a defect in the title, which the purchaser had no means of discovering, and which the vendor fraudulently suppressed. See Edwards v. M’Leay, Coop. Ch. Ca. 308, affirmed by lord Eldon on appeal, 2 Swanst. 287. It seems that if the defects be such as might have been discovered by a vigilant man, the purchaser has no remedy bat such as his covenants afford; for to an improvident purchaser the ancient maxim applies, vigilantibus, non dormientibus, jura subveniunt. The doctrine applicable to the sellers and purchasers of land, and the kind of fraud which will induce a court of equity to relieve before eviction, is so fully, and in my judgment so accurately, stated by the president in the opinion he is about to deliver, that it is unnecessary for me to enlarge on it. I will only refer to some of the cases and authorities sustaining the *propositions I have just advanced. They are Abbott v. Allen, 2 Johns. Ch. Rep. 519; Edwards v. M’Leay, cited above; Grantland v. Wight, 5 Munf. 295; Urmston v. Pate, 4 Cruise’s Dig. tit. 32, ch. 25, § 90, p. 420; Sugden on Vendors, 9th London edi. 553, to the end of that section; and Koger et al. v. Kane’s adm’r &c., 5 Leigh 606.

To apply these doctrines to the case at bar.

If there are any defects in Beale’s title, there is no evidence in the cause outweighing Wood’s allegation, responsive to the bill, that he knew no 'more of them than Beale. If a partnership between Jenks and Wood had been established, it would avail nothing, except as a ground for inferring that Wood had fraudulently concealed an incumbrance or defect of title from Beale. But the other proof in the cause repels this inference. It is proved, I think, beyond reasonable doubt, that on the 27th of May 1825, when Jenks conveyed to Wood, Beale was present, and inspected the title deeds from Penell and Meredith to Jenks. He therefore knew that they conveyed no land in severalty, but only two sevenths of a large tract, supposed to contain more than 18,000 acres, which the grantors derived under the will of Joseph Penell senior. He also knew that there was a survey and plat of this land in existence; that some attempts had been made to divide it, either with or without an order of court; that it was part of a. larger survey, called by the settlers in that country the Sherwood survey ; and that it was a particular lot in that survey, which, with certain reservations, Jenks undertook to convey, and did convey, to Wood. He saw that the deed from Jenks located the land in lot number 5, in the Sherwood survey; that it set out metes and bounds, called for known and ascertained corners, excepted a tract of 88 acres lying on the southwest side, belonging to Warwick Gatewood, the position of which he was perfectly acquainted with, and stated that the survey had *been made by Sherwood in 1787 for Joseph Penell senior, from two of whose devisees Jenks derived his title. Thus Beale, before he bought, knew all that Wood is proved to have known about the title, and all that is yet known. 'He also knew the precise location of the tract sold to him. His title bond bound Wood to convey to him that very tract adjoining the lands of James M. Wood and Gatewood, and it was conveyed to him in the same words as Jenks conveyed to Wood. Soon afterwards he took possession, and has held it ever since, without any one’s asserting or threatening a claim. If he shall ever be evicted by supe-riour title, he has his covenant of warranty for his protection. Then what pretence has he to ask for a rescission of the contract, or that the purchase money shall be injoined? Suppose that the partition made under the direction of the circuit superiour court is irregular, and may by possibility be set aside; can a court of equity, upon the bare possibility of eviction, afford him relief? I think not; and am therefore for affirming the decree.

TUCKER, P.

Though the cause of the appellant has been sustained with very great ability, an attentive perusal of the record has satisfied me that there never was a plaintiff who had less title to come into equity. Of what does he complain? He has in possession the identical land that he purchased. He has a deed for it, with general warranty, from a vendor whose solvency he does not venture to question. He holds it (in point of fact at least)’ in severalty, without any contest for the possession. He has enjoyed it for twelve years without paying for it. He has never been evicted, or sued or threatened with a suit, by any other claimant. His title is traced accurately from the Penells, who were the owners of this poftion of the Sherwood tract. He has offered no evidence of superiour title in another, no proof of the want of title in the Penells, and no testimony *to assail the right of Jenks as claiming under them, though he has industriously searched out whatever he supposed might suffice to throw suspicion over the title; a title which, from his relation to his vendor, it was rather his duty to strengthen and clear up than to impugn and destroy. Lastly, though he had received and retained his deed for eighteen months, he most unreasonably calls upon his vendor to investigate his title ab ovo, and to vindicate it against all the technical objections which ingenious and diligent counsel can suggest.

I am persuaded that many cases of this description are brought before the court, for want of a due attention to the nature and character of the relations of vendor and vendee, and of the contracts entered into between them. I ask leave therefore to offer a few considerations on this subject.

On entering into a treaty for the purchase of land, the engagements and responsibilities assumed by the respective parties are important to be understood. The purchaser may be acquainted with the title in all its details, and for the consideration of an abatement of the price, may be willing to take upon himself the hazard of all defects and faults, and to exonerate the seller from all responsibility whatever. Where this is the character of the contract, he takes a deed with special warranty only; and then, no matter what may be the weakness of the title he procures, he must abide the issue. He can have no remedy against the vendor. The rule “caveat emptor” strictly applies. His agreeing to take a special warranty is an engagement to abide the hazard, and for that risque it will be intended that he has received compensation in the diminished price. Having taken no covenants for his security, he has no remedy at law. He has bought with his eyes open, and has taken a special warranty, which amounts to a negation of liability on the part of the vendor for any defect, *whatever. These principles prevail in equity as well as at law, with the single exception that where there is a fraudulent misrepresentation or a fraudulent concealment, on the part of the vendor, of a fact which the vendee had no means of knowing, the vendee may have relief, either at law by action for the deceit, or by bill in equity. For these principles, see Bree v. Holbech, Doug. 654; 6 T. R. 606; Sugden on Vendors 560, 564; Edwards v. M’Leay, Cooper’s Ch. Ca. 308, modified on appeal, by the lord chancellor; 2 Swanst. 287.

It may happen, however, that the vendee will not take the hazard of the title. The vendor on his part may be willing to assure it to a certain extent, but no farther. He may be very willing to encounter the hazard of eviction, taking the chances of his title being strengthened in its weak points by lapse of time, before a superiour title is enforced. He may therefore be willing to give a general warranty, which cannot be enforced until eviction, but not a covenant for good title which he may not have, and which covenant would of course be broken the instant it is entered into, if his title be defective. Thus, as in the case of special warranty he discharges himself of all responsibility, and only sells the chance of a good title, so, where he enters into a general warranty without other covenants, he makes himself only responsible for eviction, and secures to himself the advantage of every doubt which hung over his title being removed by lapse of time. It these cases, therefore, the vendee is confined to the covenant of general warranty. He has chosen, or at least has agreed upon, his remedy, and to that remedy he must be tied down. However bad his title, he cannot sue upon his warranty unless he be evicted; and if he cannot do so at law, upon what principle can equity make the vendor liable beyond the terms of his contract? A contract without other covenants than a warranty, is in effect an agreement between the vendor and vendee, *that the vendor is never to be responsible until the vendee is turned out by superiour title. How can equity make him responsible farther? “It cannot mend men’s bargains, though it sometimes mends their assurances.’’ Per lord Nottingham, in Maynard v. Moseley, 3 Swanst. 651. It cannot do so without making a new contract for the parties, or interpolating a new and substantive principle into that already made. Accordingly it is the established principle in the courts of equity in England, that if the conveyance has been actually executed, the purchaser can obtain no relief against the payment of the purchase money. He,must look to his covenants : he has contracted for his remedy, and to that remedy he must resort. He has no right, I take it, after such a purchase with warranty to call for the title of his vendor, to sift it to the very brand, and to injoin or recover back the purchase money upon its supposed defects. See Urmston v. Pate, 4 Cruise’s Dig. tit. 32, ch. 25, § 90, p. 420; Sugden on Vendors 558. So far from it, that if he knew of the defects and did not provide against them, he is without remedy. Co. Litt. 384; Butler’s note. For if there be no covenants for good title, it is, as I have said, equivalent to the declaration that the vendor is not to be responsible for defect of title, but only for eviction. Were it otherwise, an inducement would be held out to the vendee to hunt up defects and expose flaws in a title, which, but for his intermeddling, might in a few years have been removed and repaired by time: and thus he would be converted from an ally into an enemy and spy, engaged industriously in sapping the foundations of his vendor’s title, instead of supporting and strengthening it, as he is bound to do upon every principle of equity and good faith. Possessed of the title papers, and (if the vendor has acted fairly) possessed also of all his secrets; fully informed of all the weak points of the title, he makes the confidence reposed in him the means of betrayal, x'and seeks to get rid of a disadvantageous bargain by treachery towards one whom the law considers as conjunct in interest with himself, and from whom it rigorously enforces a disclosure of all the facts in relation to the subject of the contract.

Such, I take it, are the considerations, in part, which sustain the rule of the courts of England. To that rule there has recently been an admitted exception Where the seller is aware of a fact from which a defect of title arises, and which the vendee had no means of knowing, the purchaser may either maintain an action at law for the deceit, or have a rescission of the contract itseif, by an appeal to a court of equity. Such is the principle laid down in Edwards v. M’Leay, Cooper’s Ch. Ca. 308, as modified by lord Eldon on appeal in the same case, 2 Swanst. 287. See also Sugden’s Vend. 565; Co. Litt. 384, a.; Butler’s note, ad finem. The same principle has been followed in the courts of New York. Abbott v. Allen, 2 Johns. Ch. Rep. 519.

With us it cannot be denied that the practice has been more lax. But even with us, relief is only given to a purchaser who had obtained his deed, where there has been an actual eviction, or where a suit is depending or threatened, or where the vendee, placing himself in the attitude of the superiour claimant, can shew a clear outstanding title or incumbrance. Ralston v. Miller, 3 Rand. 44; Yancey v. Lewis, 4 Hen. & Munf. 390; Grantland v. Wight, 5 Munf. 295; Koger et al. v. Kane’s adm’r &c., 5 Leigh 606; Richards v. Mercer, 1 Leigh 125, 138. See, among the New York cases, Abbott v. Allen, 2 Johns. Ch. Rep. 519; Gouverneur v. Elmendorf, 5 Id. 79. See also Id. 29. A still greater liberality has prevailed, it is true, in injoining proceedings under deeds of trust; but this rests upon peculiar principles. Gay v. Hancock et al., 1 Rand. 72; Lane v. Tidball, Gilmer 130. The distinction is adverted to by Judge Cabell in Miller v. Argyle’s ex’or, 5 Leigh 460. But notwithstanding *these relaxations, I am aware of no case in which the rights of the party have been extended in equity beyond his covenants. Until the contract is complete indeed by the execution of deeds, it is full}’ within the power of the court, which will not decree execution where it would be unreasonable, or where the title is essentially defective. But after a deed has been made and accepted, though our courts have given relief in anticipation of an eviction which is impending, accompanied by the danger of insolvency, the}’ have never gone one jot beyond the covenants, except where the fraud of the vendor gives rise to a distinct cause of action independent of the covenants. Although, therefore, we may injoin a judgment or sale on the ground that the creditor is proceeding under his deed of trust, or that a suit is threatened and the vendor is in declining circumstances, yet we can never interfere unless the seller has made himself, by some covenant, responsible for the defect complained of, or by fraudulent concealment has subjected himself to an action at law for damages, or to relief in equity to rescind the contract for the fraud.

Having laid down these principles, they will be found of easy application to this case. It is obvious, that as Beale received and retained for 18 months, without objection, the title sent or delivered to him by Wood, and has enjoyed uninterrupted possession, he cannot succeed unless he shews a fraudulent misrepresentation or suppression on the part of Wood. For, no eviction having taken place, no suit being in progress, none being even threatened, and there being no pretence of Wood’s insolvency, he cannot come into equity, anticipating a probable eviction, and consequent title to recovery under the warranty of his vendor. His only ground of relief is the fraud; and hence his counsel has vigorously endeavoured to maintain that position.

*The fraud which will entitle a purchaser to ask a rescission of his contract inequity, whether the defects complained of are guarded against by covenants of title or not, is that which consists in misrepresentation of facts, or in the concealment of facts, from which a defect of title arises, which facts the vendee had no other means of knowing. 2 Swanst. 287. If then the vendor does not know of a defect, or, knowing it, does not conceal it, or if the vendee does know of it, there is no ground of relief. The vendee then must prove three things: 1st. the defect; 2dly, knowledge and suppression by the vendor; 3dly, ignorance on the part of the vendee. And as to the second matter, the scienter is essential, as the case of Bree v. Holbech, Doug. 654, most amply proves. So too in Urmston v. Pate, already quoted, where P. conceiving himself entitled to an estate, though he had no title at all, sold it, reciting the will under which he claimed, and warranting only against himself and his ancestors, it was decided that the purchaser had no remedy, though it appeared that the will conferred no title, and though the defect was overlooked by mistake, by the vendee’s-counsel. These cases shew how strict the rule has been held in England.

Ivet us see then whether Beale has exhibited anj' defect in the title here. The proof lies upon him: yet he has produced no evidence to question the existence of the patent of Penell the elder; and the will of Pencil, and the deeds from his son and son in law to Jenks, and from Jenks to Wood, and from Wood to Beale, are all regular. Moreover, Beale has possession of the identical land he bought; for luckily it was located between two well known tracts, with one of which it interlocked. Further, he is located in number S, of the 18,000 acre tract, and has enjoyed the possession ever since 1825. He has never questioned the title of the Penells, but only demanded that Wood should produce the deeds from Pencil’s devisees to Jenks. Now those deeds have *been duly recorded in Randolph county and are exhibited in the record. The title then seems to be complete. But then it is said that the true location of the 18,000 acres is not known; that the Sherwood survey is said to be for 104,000 acres, and it does not appear that it embraces this land. Beale should then have shewn that it did not; for the onus is on him, and in twelve years he might have ascertained it. But in fact the evidence is abundant for our purposes. Sherwood’s survey seems to have been for 104,000 acres. Each of the two Penells then would have 52,000; but' all of Joseph Penell’s share, except about 18,000 acres, appears to have been sold by him in his lifetime. This Sherwood tract was probably as familiarly known by the settlers around, as their own farms. The habits and interests of the people of that country bring them into intimate acquaintance with all the lines and locations around them. From their information, rather than from the patent, the identity of the tract was to be established. But the parties had also a survey of the 104,000 acres, as the plaintiff himself had taken pains to prove. With these means of information, the commissioners who laid off these lots cannot have been mistaken in laying down lot number 5, as part of Pen-ell’s 18,000 acres, and in considering the 18,000 acres as part of the survey patented to Penell.

But Beale complains that the title is not in severalty. This might indeed be an objection to specific performance of a contract, if it were promptlj' made; but it can be no reason for rescinding a contract, after the party has received his deed, and continued for years in undisturbed possession. He has, in point of fact, had possession in severalty. He was content to accept that possession. He was present when the lots were being laid off. He had seen the deeds of Penell and Meredith. He well knew then that the lands were yet undivided by regular partition, and it is not pretended that *Wood ever intimated the contrary. Admit, then, that this was a defect; yet was it one of which he was aware, and he ought either to have provided against it, or to have ascertained for himself the real state of the affair. Moreover, it is a defect not necessarily vital to the title. He might at any time have compelled a partition ; and upon such partition, if it appeared to the court that he was in possession of no more than a fair proportion, his possession under the circumstances would, according to the usual course of the court, have been respected. The lot on which he settled would have been assigned to him, and he would never have been disturbed. But suppose it otherwise; suppose him evicted: then he would have redress under his covenant of warranty. But surely a court of equity ought not to have granted him relief by rescission of the contract, upon the anticipation of an eviction, which was not only not threatened, but not even remotely probable. Still less should it have continued the injunction after a partition was actually made bj' the decree of the superiour court. That decree must be taken to be right. Its errors, if there be any, cannot be collaterally examined. It is unreversed and unannulled, and unless it has been set aside since the dissolution, it is now irrevocable.

Upon the whole, I see no ground for relief in this case. I have not thought it necessary to go into the allegations of fraudulent combinations on the part of- Jenks and Wood, to sell lands not their own. The question is not whether they have defrauded others, but whether they have defrauded Beale; and of this there is not the slightest evidence. He is in the enjoyment of what he bought, and his title is not questioned. It is but just however to say, that I think there is nothing fraudulent appearing in the transactions of Wood and Jenks. That Jenks should have purchased from Penell and Meredith for a valuable consideration, and have sold *with general warranty, upon a credit, when he knew he had no title, and that Wood, a man to whom insolvency is not imputed, should have done the same thing, is hard of belief; and it becomes utterly incredible, when we find that all their imputed combination and fraud, all their supposed machinery and contrivances of partnerships and agencies, have resulted in no extraordinary profit to themselves, and no loss to their vendee.

I am of opinion to affirm the decree.

BROCKENBROUGH, J., concurred.

Decree affirmed.  