
    William Garvin vs. Sheldon Cohen. Same vs. George Rhodes.
    
      Vendor and Vendee — Rescission.
    As long as the vendee is in possession of the land, he cannot rescind the contract of sale, or defeat the vendor’s action to recover the purchase-money, by showing that the title was warranted, and that there is a valid, outstanding title in a third person.
    If he were to surrender the possession to such third person, he would be required to show, not only that the title of such third person was good, but also that he, the vendee, acted in entire good faith.
    The proper course of the vendee is to surrender the possession to the vendor, or to stand suit and vouch the vendor to defend the title.
    The law on this subject is to be found in Van Lew vs. Parr, 1 Rich. Eq. 321, and Kébler vs. Owelon, Rich. Eq. 143.
    BEFORE MUNRO, J., AT BEAUFORT, JUNE TERM, 1860.
    The report of his Honor, the presiding Judge, is as follows:
    “ These were separate actions upon a promissory note, in which Oohen was the principal, and Ehodes the surety.
    
      “ The note in question, together with some others, had been given for a tract of land which Oohen had purchased from the plaintiff with warranty.
    " The defence was a paramount outstanding title in one Kemmy Smith. To sustain the defence, a regular chain of title was deduced from the grantee, Isaac Tuten, to Smith.
    "At the time Smith acquired title to the land, the defendant, Oohen, was in possession. Shortly afterwards, however, he surrendered up the possession to Smith, so that the only question that was made on circuit is that which is stated in plaintiff’s grounds of appeal.
    
      “ In conformity with my ruling, verdicts have been rendered in both cases for the defendants,
    
      
      “ The abstract of Smith’s title, which was furnished me on circuit, accompanies this report, which the plaintiff’s counsel may print if he sees proper.”
    The plaintiff appealed, and now moved this Court for a new trial, on the ground:
    Because it is respectfully submitted, that his Honor erred in ruling, that paramount outstanding title in another, without ouster, is a sufficient defence, by the vendee with warranty, to an action against him, by the vendor, on a note given for the purchase-money of land.
    
      Fielding, for appellant,
    cited: Davis vs. Woodward, 2 Mill Con. R. 56; Wade vs. Dawson, lb. 435; Garter vs. Garter, 1 Bail. 217; Pryor vs. Coulter, lb. 517; Bordeaux vs. Gave, lb. 250 ; Westbrook vs. McMillan, lb. 259; Van Lew vs. Parr, 2 Rich. Eq. 329; Gillam vs. Briggs, Rich. Eq. 432; Byers vs. Bostick, 2 Mill Con. R. 75; Moore vs. Lanham, 3 Hill, 304; Jeter vs. Glenn, 9 Rich. 374; Martin vs. Bobo, 1 Spear, 25, note ; Breithaupt vs. Thurnond, 3 Rich. 220.
   The' opinion of the Court was delivered by

O’Neall, C. J.

In these cases, I have always understood the rule to be, where the vendee was in possession, he could not set up the defect in his title so as to rescind the contract; but that he might show a failure of title to part of the land, not as a ground for the recission of the contract, but as a ground for compensation pro tanto. So, too, I have no doubt, if he could show an entire bona fide failure, and that he had given up the possession to avoid a law suit, and not to favor an insidious claim of title, that in such a case he might be allowed the defence.

In this case, the defendant showed title in Kemmy Smith, and soon after he surrendered to him, and thereupon rested his defence, which the Judge allowed. It was, however, necessary for Mm to have gone on and shown that he did not surrender-possession, in fraud of the plaintiff. Generally, I should say, he was bound to deliver possession to his grantor, or that he should vouch him. to defend. In either of these cases, his defence might be good; for, in the first case, he put the plaintiff, in statu quo, and, in the second case, he gave him the opportunity of defending his title.

But if neither of these opportunities be presented by the defendant, then his possession places him. in the position that he must pay the purchase-money, or in some other way show Ms perfect fairness.

In these cases there is nothing which goes to show that the defendant did not examine the title, and, finding some defect in it, that he thereupon surrendered to Kemmy Smith.

In the absence of all proof, as to what was the true reason of defendant’s surrender, we think it better that the cases should go back for further investigation.

The whole law applicable to cases of this kind will be found in Van Lew vs. Parr, 2 Rich. Eq. 321, and in Kebler vs. Cureton, Rich. Eq. Cas. 143. The motion for new trials is granted.

Johnstone and Wardlaw, J. J., concurred.

Motion granted.  