
    Williams’s Ex’rs. vs. The Mayor, &c. of Annapolis.
    from M&A.fovM vcavi* renewable ovíT, a lot of , fcioinn] at a fixed rent, and. covenanted in tl»' lease to pay the rent ÍTe entered upon ’ho property, and pant the reotuntj'. W03* T!¡.‘ liase was not leirally aekn'Av(eff;y« d or tU In 1813, M &■ A hr »ut*;ht ■>'n D'tf.cn Df eowir-nt at Inv against TV «o iv-cover ihe v n%Mid fined, because of the d 'ft etive execution and a»-^ knowlcdsfincnt of the lease. JV, and tho^o cktniii*|Y under him, mnaiuod in u «disturb d ,«f.scsiion of the pro-pen y. In’diS, ilí & A ftVd their bill in chancery a« gainst W) 'o compel Isim ton Culiot for the routs fioru 1803, and to accept a now If» ■>** formally executed TV.iitevvvavds lYetl, and the suit w<- l-evived as); ii«««f lus executor— - hat thf co o[»h<uiants M't-re i'ntir! i d to ve« oo’iv the rents, with inte-ost. and duit neither the jiul-yo.ent at law, V.ov tin s^atur ■ of limiiatiom, coo’d affect their c!aiuu But hat the executors of W were not bound to accept a new lease ¿ jj !’■ e * ¡, ” jj ^ l ! ¡ 1 ■
    1 i * ¶ r * I 1 ^ ’ Apfkal from a decree of the court of chancery. The bill was filed against the testator of the defendants, (now appellants,) on the 23d of November 1815, to compel him to take from the complainants, (now appellees,) a lease for a lot of ground in the city of Annapolis, which in 1705 fhey contracted to lease to the original defendant; and also to compel him to pay rent for the said lot. Williams, pending the suit, died, and a bill of revivor was filed against his executors. The statement in the bill is, that the city of Annapolis heretofore was seized and possessed of a nnmber of lots in said city, and being anxious to lease out the same, Williams applied to the Mayor, &c. to lease, and on the 29th of September 1785, a lease was executed to Wil Ilians for certain property, particularly described in said lease, for 99 years renewable for ever, commencing on the 15ih of April then past, paying the annual rent of £36 6 Q. Williams entered upon the premises described in said lease, and ever since has Used, occupied, and enjoyed the. same, and still does, and paid the rent to the 15t.b of April I8j43*5 After that time he neglected or refused to pay rent, and for recovery of i1 suit was instituted in Anne Arunid county court, to April term 1812. The Fase was not acknowledged or recorded in the manner or place, required bylaw, and IPHlia'rin, although he held the premises leased, or intended to be leased, under the said lease, and paid the rats aforesaid, took advantage of the legal defects in the lease,1 and the county court, upon an admission of facts, gave judging s' > in favour of Williams, in 1815. Besides being required to account and pay over the amount of said rents, and that a new lease may be executed, he was called on to answer, among other things, whether he did not make, the agreement, and execute the lease referred to; whether he did not enter upon the premises by virtue thereof• and who her he did not still hold the same. The answer of Williams states, that he does not admit that the Mayor, &c. of city of Annapolis, were seized anti possessed of a number of lots, and especially denies all title in the said corporation to the lots which they pretended to lease to Mm, and leaves it to the complainants to establish their title thereto. He leges that this lot, a part of five and a half acres of vacant land, was taken up by Patrick Creigh on the 6th of bruary 1748; and from the time of the grant thereof lids been in ‘he quiet possession of the grantee, his heirs or assigns. The title to this land became vested in Richard Mackubiiz, of whom the defendant purchased, and to whom he gave an extravagant price, and has expended considerable sums of money in its improvement. After this purchase and these improvements, the corporation set up a claim to the ground, and the defendant, being unwilling to be disturbed in his improvements, entered into a contract with them to lease the s-rne. He afterwards became satisfied that they had no title to the nroperty, and then refused to pay any rent, and would have applied to the court of chancery to vacate the contract, but it was discovered to be void; He admits the suit at law, and the decision in his favour, but be is advised that the court did not decide that nothing could be recovered at law from the defendant for the use and occupation; and he is advised., if the com’plainanfs could have proved that the defendant occupied the lot as the tenant and by permission of complainants, they must have recovered at. law in a proper form of action, «id the defendant could only have been relieved in equity. e insists Uiat the relief sought by the complainants, -if they 'are entitled to any, is exclusively at law; and he pleads and relies upon tl\e judgment at law, and Hie act of limitations. fie expressly denies that he entered on the premises in virtue of the lease; that he claims the fee simple,and again denies all title which the complainants may set up. The coui^lainants exhibited the proceedings in two suits in chancery, John Welch against Benjamin Welch and James Williams, and Robert Welch against Jamés Williams and John Ross. Thesé suits have no relation to the present, and can only be introduced into the case becáusé or a part of the answer of James Williams in the latter suit; in which he states, “that some time in the year 1785, there being a dispute between Richard Ihackubin and the Corporation of the city of Annapolis, as to the right of some water loti, this defendant wished to purchase, and in order to secure á good title, this defendant had to purchase or lease of both parties, for which he paid equal to one dollar per foot per ánrutm.” Testimony was taken, and surveys were made, &c. An application waS made to the chancellor by the complainants, to order the defendant to produce the original lease, which order being granted, the original lease was produced by the defendant, certified to have teen recorded in the recoids of the general court, on the 3d of January 1786.
    Johnson, Chancellor, (July term 1822.) It being understood, that this cause, let the final decree be as it may, is. to go to the court of appeals, for the ultimate determina»; tion of that tribunal, it is thought most advisable, before a determination is made on the merits of the cause, to direct* that the sum due to the corporation, (¡1 it is entitled to recover,) should be ascertained; that the decree, ««k made, on the merits of the cause, should be lina., so far as regards this court. For if the complainant;' re entiled to recover, then the decree would be for a spccii.c sum; and on the appeal, the couit of appeals w „\'d hi-vo die whole subject before them; that is, the right iuieci.vei, and the extent of the recovery, ft the decree, at ter the aocountia made by the auditor, is in, favour of tht defendants, then oil an appeal should the decree be revuued, the court of appeals ■ would have every thing before them, to enable that court to give a final decree. — Itecreed, that the auditor state an account between the parlies, so as to ascertain, the sum due from James Williams, deceased, on account of the properly leased to him by the corporation of the city of Jlnnapolis on the 29th of September 1785, from the evidence ill the cause, or frclin such evidence as shall be laid before him, and report the same, subject to further order* reserving all equity at the final hearing.
    The auditor, by his report, stated that there was due from fFiliiams to the complainants the sum of S4,495 8Ti, with interest on S3,850, a part thereof, from the SOth of November 1822. To this report the defendants made, sundry exceptions»
    Joiinsoj:, Chancellor, (March term 1823.) On the 29th of September 1785, the complainants leased to James Williams a lot of ground, situated in the city of Jlnnapolis, for tie term of ninety-nine years renewable for ever, on the annual rent of T56 5s. current money; the lease contains the u,-ma¡ covenants, amongst which is the covenant for the payment of the rent; (he lease is tinder the seal of the corporation, and is also signed and sealed bj James IViltiams, but it was not acknowledged and recorded agreeably to. law. Williams entered on the lot, and paid the rents, up. to the.15th of April 1803, when discovering (as it is presumed,) the defective execution of the lease, from that time he refused to pay; and on the 10th of March 1812,, an action of covenant was brought against him by the corporation, in Anne Arundel county court, to recover the rents then claimed as due. The cause was tried on a case stated, in which it is admitted that the lease was executed “in the manner stated in and endorsed upon the aforesaid,, copy of the said lease, and the original lease recorded ia the manner endorsed upon the aforesaid copy, and that the said lease never has been executed, acknowledged or re» corded, otherwise than as appears upon the copy of the said lease .filed in this cause by the plaintiffs.” The copy of the record of Anne Arundel.county courtis filed asan exhibit in this canse, and by it, it also is admitted, that Williams “entered upon the said property, and the rent for-seven years has been unpaid.” Judgment on the case, stated was given in favour of the defendant. The reasons for the decision do not appear, but it is to be supposed, th? judgment of the coui-t'was in favour of the defendant,, because the. legal estate in the property did not pass by the. lease. ... 1 , ‘
    From the period of the lease, to the present time. Wil-. Hams, and those claiming under him, have had the undisturbed possession. Foiled by the judgment of the court to recover the rents, on account of some legal informality of the. lease, on the 23d of November 1815, the present bill was filed against 'James Williams, to compel him to account for and pay the rents then due, and to accept a new lease formally executed. In this hill the entering of Williams on the property, and his continuing to occupy and possess the same, is set forth.
    On the 18th of May 1816, Jarees Williams, answered^ and .by his answer he denies “all. title, in the, said corporation to the, lots which they pretended, to.lease, to this defendant.” The lots stated'to have be.en leased, the, answer asserts, “were a part of five and a half acres of vacant land, not within the plat or survey of the said city? that the same was taken up,” and patented to Patrick Creigh,, about the 16th of February 174.8; the title, to which, by inheritance, was transmitted to Mich aril MackuMn, from whom the defendant purchased; and after he had purchased, finding that the corporation “did pretend to set tip a claim to the ground, and this defendant, unwilling to be disturbed or hindered in his improvements, entered into, a contract with them for leasing the same.” But after-wards, finding that the corporation had no title, he refused, to pay rents. The institution of the suit at law, and the. judgment on the case, stated, are admitted. The defendant insists, if the complainants have any right, the remedy should have been an ejectment for the property,, or an action on the case for use and occupation; and he also relies on the act of limitations as a bar to the claim. The defendant, James Williams, having answered, died, when a bill of revivor and suj plemental bill was filed against the present defendants, James H dliams and Lewis Neth, junior, the executors, who the bill alleges have assets, winch ig admitted to be true.
    As between the landlord and tenant, the title of the former is not to be called in question; if, therefore, the instrument of writing had been formally executed, acknowledged, and recorded, the rents at law could certainly have been recovered, and the tenant would not have been permitted to controvert the title. B,ut as the instrument was informal, and incapable to pass the title of the corporation, (supposing if to exist,) a court of law competent to determine, have deeided that the action of covenant could not be sustained. As the complainants failed to give a valid subsisting lease, they come into, this court, founding their claim on the,contract to lease, and the corresponding engagement, to payment, offering to remove all the defects m the title intended to be passed, by executing formally a new lease on the terms of the engagement between the parties, and claiming the payment oí the rents due, according to the stipulations of the parties,
    One of the most ordinary grounds of the jurisdiction of this court is that of curing the defective execution of contracts, and of compelling the parties, by a decree of the court, specifically to comply with thei^ engagements fairly and bona fill e executed; and although a. partial relief under the contract might be obtained at law, by tlje recovery of damages for a breach of the contract, yet the party having that remedy was not, and is not deprived of resorting to this tribunal, to carry the whole engagements into full and complete effect. If, therefore, the complainants could-have maintained an action of ejectment to recover the property itself at law, or could there have sustained a suit for use and. occupation, it by no means follows as a necessary consequence, that the jurisdiction of this court extends not to give a more ample and full relief to the parties. Had-the ejectment been brought and sustained, although by it the complainants' might have obtained the possession of the property, yet it would be held subject to the contract, and the possession regained by a decree carrying the contract inte, complete execution. Had the suit for the use and occupation been brought and sustained, yet thq legal title to the. property would have remained, at the termination of that cause, as at its commencement; and, (except by the voluntary acts of the parties it should be obviated,) before the legal estate in the property could have been obtained, resort must have been had to an equitable tribunal possessing the. jurisdiction, and full and ample power, specifically, to car-, ry the contract into execution.
    But although this court will carry contracts into execution when bona fide made, yet, ño person will-be compelled-to accept a conveyance, and forced to pay a consideration» when the title is clearly not in the person contracting tá sell or lease, or when well founded doubts are entertained of its validity. In the case before the court, since the year 3785, when- the lease was executed, to the present time, the possession, and undisturbed, has remained, and still remains with the lessee and those claiming under him. The, lessee alone, thinks proper to call the title in question, and sets up no other foundation, to impeach the right of the complainants, than was known to him at the time he leased. At the period of his answer to the present bill, it does not appear that he acquired any new information on the subject. In the answer by Williams to the present bill he denies “that he entered on the premises by virtue of any lease of the corporation;” and yet in an answer filed by him» on the 22d of May 1S06,. to a bill filed by Hubert ft-elch, touching the same property, and which case is made a part of this cause, he states, “that sometime in the year 1785» there being a dispute between Mr. Richard Mackubin and the corporation of the city of Jhmapolis, as to the right of some water lots this defendant wished to purchase, and in, order to secure a good title, this defendant had to purchase or lease of both parties,” thereby admitting all his know» Tfedge on the subject, and of course that the possession by him was acquired under the united title. In the case stated for the judgment of the court of law, it is expressly admitted, tint James J^Vliams leased from the corporation, according to the copy of the lease filed in that case, which «corresponds with the original lease itself, filed and admitted in this cause; and that he “entered upon the said property, and that the rent for seven years has been unpaid.” These admissions are abundantly sufficient to defeat the ground now assumed in regard'to the entry on the property.
    I do not perceive the necessity of going into the examination of the title to the property, but, so far as I have examined, I have no reason to doubt that it belonged to the corporation; but as James Williams leased from them, with a perfect knowledge of all the circumstances connected with it, equally as well then as at the time he answered the present bill, and as he and those claiming under him have remained, and still remain undisturbed and unmolested, the raising of doubts now in regard to the title, ought not, it appears to me, to prevent the contract from being enforced.
    In order that the whole case might at once be presented to the court of appeals, where it is only to terminate, lét the decree of this court be as it may, I thought it advisable on the 2d of September 1822, to pass an interlocutory decree; and on the 20th of November 1822, the auditor in pursuance thereof made his report, by which the complainants appear to be entitled to the sum of 34495 87s on that day, with interest on §2850, part thereof, from the same time; ami as the defendants, the executors, admit assets' — « Decreed that the defendants pay to the complainants, or bring into this court to be paid to them, the said sum of $4495 871 with interest on $2050, a part thereof, from the •20th of November 1822, until paid or brought in, together with the costs of this suit.
    As ihe original lessee is now dead, a new lease to him canmt be decreed, nor can it be conceived, that his executors ought to be compelled to accept one. But, on the payment of the money above mentioned — Decreed further, that ill the event of the executors claiming a lease, that the complainants, before the money paid into court is received by them, shall in due form of law, duly execute and acknowledge another lease in conformity with the terms and stipulations of the one which is the foundation of this causo.
    
      From which decree the defendants appealed to this Court,''
    Thé cause was argued before Earle; Martin and Archer; J:
    
      Magmder, for thé Appellants'.
    1. The chancellor decides, that the court could entertain jurisdiction of the whole case, because it can give a more ample and full relief to the parties- 2. Although -no person will be compelled to accept a conveyance and to pay a consideration, when the title is clearly not in thé party contracting to sell or lease, or when well founded doubts are entertained of its validity; yet as Williams leased front them with á perfect knowledge of all the circumstances connected with it, equally as well then as at the time he answered the present bill, and as he, and those claiming under him, have remained, and still remaih undisturbed and unmolested, the raising of doiibis now in regard to the title ought hot to prevent the contract from being enforced, and accordingly the chancellor does not perceive the necessity of going into an examination Of the title. 8. The chancellor, without 1'Sgarding the plea of limitations, or the judgment at law against the claim of the complainants, to rent up to the 15th of April 1811, decrees that the defendants pay the rent which has accrued since 15th of April 1803. 4. That the original lessee being dead, a new lease cannot be decreed unless his exécufors claim. All these points, (with the exception of the latter,) the appellants controvert, and contend,
    ■ 1. That if the chancellor could not decreé the specific execution of the contract, he could not enforce the payment of (he rent, or entertain a suit in which the complainants could only recover what, if they were entitled to at all, could be recovered by them only in ati action at law grounded upon the instrument executed, or in an action for use and occupation.
    2. That at no period of time could the court of chancery compel the original defendant to take a lease; unless the somplainants could prove their title to the property which they undertook to lease, that being expressly put in issue by the parties.
    3. That if the complainants were entitled to recover rent for the occupation of the property, and their remedy was not exclusively at law; yet the judgment of the county court is a conclusive bar to the recovery of the rent claimed iti that suit. And further, that the plea of limitations, relied on i»v the defendant, is a bar to the recovery of a considerable part of the rent decreed by the chancellor; and if the rent could be recovered, no interest can.
    4. The chancellor, in relying upon what he supposes to be the circumstances connected with the title, and Wilfiumrs supposed knowledge of them, as furnishing a reason for sustaining the contract, without examining the title, Slot only disregards the proof in the cause, but undertakes to decide matters which neither party designed nor attempted to put in issue, and to furnish the complainants with a case which they had not brought into court. It is not alleged, and therefore the chancellor had no right to decide, -that the original defendant was bound by his contract to take a lease of the property, the title to which was doubtful, or was precluded by the terms of the contract from insisting that a clear title should be shown to exist in the complainants before the defendant was obliged to pay rent for the property-.
    The ground of the judgment in the county court in the action there brought, was that the lease had not been recorded in the proper oifice; this is not true in tact, for the lease was recorded in the office of the genera! court, within the, time prescribed by law. The defendant was not bound to take so doubtful a title as has been proved in this case. Sugd. 206, 207, 208, 210. Roake vs. Kidd, 5 Ves. 647. If the purchaser’s defence to a bill for a specific performance rests merely on the want of title in the vendor, he ought to depend on his answer, and not to file a cross bill to have the agreement delivered up; because the vendor can make no use of the contract if he has no title. Sugd. 156. Hilton vs. Barrow, 1 Ves. jr. 284. By the act of June 1777, eh. 3, leases by the corporation need not be acknowledged. The chancellor, in his decree, says that the defendant, having entered into the lease, the onus prdhandi lies on him to prove that there, was not a good title in the lessors. Where a party contracts to take a doubtful title, then it may be enforced; but it must appear in the contract itself. Sugd. 205, 296. Here the title is put in issue; yet there is no proof of title. The complainants by their bill, set out their title, stating that they are seized in fee, Sic. they cannot therefore rely on any other title than that under which they claim; The relief granted must be agreeably to the case made out by the bill," and cannot be different from it. Cooper’s Plead. 6, 7, 13. At law, it is admitted, the defendant could not controvert the title of the lessors. The complainants had remedy at law for the rent due; and as the contract can-hot be enforced against the present defendants, they not being bound to take a new lease, there was no case for the interposition of the court of chancery. There are teases where the party may go into chancery to recover rents due; but this is not one of those cases; Since the death of the original defendant; this suit is nothing more' than for use and occupation. The chancellor did not regard the judgment at law, or the plea of limitations. The judgment at law was a bar to all rent claimed to that time; and the plea of limitations was a bar to all rent accruing for three years before the bill was filed. The chancellor not only decreed payment of all rent claimed, but also interest from April 1803 to 1822. If the complainants had á right to come into chancery for the rent; they had no right to interest;
    
      Brewer, jun. for the Appellees.
    Tó show a title in thé Appellees to the property in question, he referred to thé testimony in the cause, and the acts of assembly 1683, ch. 5; 1684, ch. 2; 1694 ch. 8; 1695, ch. 7, s. 2, 4; 1718, ch. 19; 1719, ch. 5; 1723, ch. 26; 1753, ch. 25; and June 1777, ch. 3. Under the act of 1718, ch. 19, .a new plat of the city was directed to be made, the former plat having been destroyed by fire. The plat thus made has also been lost, or at least no record of it appears; but the complainants exhibited a plat which they contend, and which the proof establishes to be, if not the original, á true copy of that made under the last mentioned act» To show that this plat, being aii ancient one, of a copy of the original, which is lost, of cannot be found, is evidence, he referred to Butler vs Craig, 2 Harr. & M‘Hen. 219. Smith’s Lessee vs Steele, 1 Harr. & M‘Hen. 419. Scott’s Lessee vs Ollabaugh, 3 Harr. & M‘Hen. 511. Ridgely’s Lessee vs Ogle & Leonard, 4 Harr. & M‘Hen. 126, (note.) Atkins vs Hatlon, Anstr. 387. Miller vs Foster, Ibid 607. Peake’s Evid 90; and Bull. N. P. 248. If the title of the com-, plainants has not been sufficiently established, yet the de; femí;mts’ testator made the contract with a fall knowledge of the situation of the property, and of tiie claims set up to it; he is therefore bound by it, and it may be enforced. Gibbons vs Caunt, 4 Ves. 849. Stapleton vs Stapleton, 1 Atk. 1. Cann vs Cann, 1 P. Wms. 723. The judgment In the action at law is conclusive that the complainants could not recover the tents due uneer the lease. The lease, though recorded in the iccords of the general court, is not a valid one. By the act of June 1777, ch. 3, it is said, the lease need not be acknowledged; but by the act of 1715, ch. 47, all transfers ol real enjale, for above seven, years, are required to be acknowledged, so as to admit them to record. A ccrpoiatiou may do a number of acts under their common seal; but they must at knowledge deeds, which they can do by letter of attorney.
    
      Mayer, on the same side.
    The testator of the defendants acquired not only the title of Mackubin, but also that of the complainants, and having these titles, and the possession of the property, he has attempted to shield him» self under some imaginary defects. Standing, as lie did, lie was bound by his contract, which he entered into with full knowledge of the facts. He has not shown that his title is superior to that of the complainants, and it was at least incumbent on him to do that. ' A tenant cannot dispute the title of his landlord. Co. Litt. 47. The owner of ground may take a lease from a stranger, and he is bound by such lease. Ibid. “Where a purchaser takes possession of the estate, it is in most cases a waiver of the title of the vendor. Sudg. 9. Calcraft vs. Roebuck, 1 Ves. jr. 226. Fludyer vs. Cocker, 12 Ves. 27. Colton vs. Wilson, 3 P. Wms. 193; and White vs. Foljambe, 11 Ves. 348. The court will not disturb contracts entered into by the parties with a full knowledge of their respective rights 2 Pow. on Contr. 213. Pullen vs. Ready, 2 Atk. 592. Here the complainants cannot be restored to the situation they were in before the contract was made. The defendants cannot say that the lease has been regularly recorded, and is valid. Nor can they say the complainants’ remedy is at law. They are bound by the admissions of their testator; in the suit at law» Where there are difficulties to a re» covery at law, the party may be relieved in equity. If the complainants had proceeded de novo at law, the defeiidants’ testator, says in his answer, that he would have brought them into chancery. The complainants did right, therefore, to come directly into chancery, since the defendant would himself have eventually brought them there. The lease is not a valid deed, if it did not need acknowledgment, there being no place designated by law where such an instrument should be recorded. It having been recorded where it was, is the same as if it had not been recorded at all. The clerk of the general court had no authority to record a deed which had not been acknowledged. The act of June 1777, ch. 8, did not mean to make any alteration as to the manner of acknowledging deeds, ft empowers the corporation to transfer their pro-, perty under their common seal, but does not say the deed, need not be acknowledge^. Defective deeds may be, perfected on application to chancery. Hunsden vs. Cheney, 2 Vern. 150. Finch vs. Winchelsea, 1 P. Wms. 279. The, pomplainants having rightfully come into court, the court Will go on and give relief for the rent, although it be com» petent for a court of law to do so. On an application for discovery, the court will proceed with the cáse and grant Relief. Francis’s Maxims, 42. A court of equity may. decree for mesne profits. Coventry vs. Hall, 2 Chan. Ca. 134. Dormer vs. Fortescue, 3 Atk. 129, 130. Campbell vs. French, 2 Cox’s Rep. 366. Pultney vs. Warren. 6 Ves. 89. Curtis vs. Curtis, 2 Bro. Chan. Ca. 620. Weymouth vs. Boyer, 1 Ves. jr. 417. Coventry vs. Thinn, 2 Chan. Ca. 71, 72. Thorndike vs. Collington, 1 Chan. Ca. 79. Collett vs. Jacques, Ibid 120. Underwood vs. Staney, Ibid 78. Ratcliffe vs. Graves, 1 Vern. 196. Livingston vs. Livingston, 4 Johns. Chan. Rep. 217; and Langley vs. Brown, 2 Atk. 198. If the complainants might have succeeded in ejectment at law, they could nevertheless apply to equity for a specific performance. An action for use and occupation could not be brought at law, for the contract here was under seal. But if it could, then an action of debt might have been brought; and where debt is brought for use and occupation, the act of limitations will not bar a recovery; at all events, our statute of limitations does not bar an action of covenant, for rent, and- this proceeding in. equity, the court will consider upon the same footing with such an action, in order to preclude the plea of limitations here set up. A 
      plea of that kind is not favoured either at law or in equity. Wilkins vs. Wingate, 6. T. R. 62. This then is sit imiar to such an action, Collett vs. Jacques, 1 Cha. Ca. 120. As a general principle,, interest is not recoverable for rent, but that is where it is owing to the negligence ot the landlord. VVhere the default is on the part of the tenant, interest is recovered. 6 Binney’s Rep. 159. Interest is always recoverable, unless it is inequitable to ask. it. Clark vs. Barlow, 4 Johns. Rep. 183.
    
      Jones, also for the Appellees.
    Here is a consummate, contract — a lease executed with covenants — Possession and holding by the lessee for a number of years — Payment of rents for several yeai», and refusal to.pay further. He thereby compelled a suit to be brought at law, in which he defended himself upon a technical objection, not upon the ground that no rent was due. There was a final judgment on a forma] objection against the complainants’ recovery, and recourse is had to equity to enforce the contract. The defence, among others,' is the want of title to that property, which the lessee had enjoyed without interruption. The bill so is out a lease for 99 years. This is not denied in the answer, nor is its execution denied. The burthen of impeaching the title rests on the defendant. He has not done so. He charges a defect of title, and he must shew it, and his answer is not sufficient for that purpose. This is similar to debt on bond, where the defence set up is duress, which throws the burthen of proof on the defendant. The complainants were not bound to show title; but they have deduced their title by proof, which the defendant has not disproved. Now he alleges that the title is at least doubtful. There can be no better title for a corporation in a city than that shown by the evidence before the court. The act of June 1777, ch. S, recognizes this property as being under the control of the corporation, and whether they have a fee simple in it or not, m oí no sort of consequence. Upon the ordinary doctrine of presumption, the title will be deemed to be sufficient Here, was a possession in the corporation for more than a century, and-the property used for public purposes; the defendant, for ?>5 years, enjoying undisturbed possession under the corporation. This is .prima facie, if not conclusive evidence, oí title in the corporation. Shall such a right as this be uprooted now, and by him whs. had no occasion to do so, and from whom no such objectic® should come? Until this bill was filed, nothing was said about the title; nothin'5: w as said at law about the delect ot title. To defeat such a title there must be the strongest possible evidence of its defect. Suppose a delect of title is established, and a better paramount title is set up by the defendant, is such a defence allowable in him? Can he take advantage of the defect of title? Ibis is not an ordinary case between vendor and vendee in relation to a defective title. If a ven? dee makes a contract, with a knowledge of a defect of title, he cannot afterwards dispute the vendor’s want of title — He took it for better or for worse; it amounts to a waver, and binds the‘vendee. Sugd. 1, 2. If the vendee could have ascertained the nature of the tille, he, is bound by the con» tract. Ibid 9. As to the objection between the quality and quantity of the estate sold. Ibid 192, 195, 197. 2 Com. Dig. tit. Chancery, (2 C 1.) If a purchaser enters on part of the premises, he is compelled to go on and complete the purchase. In Liddal vs. Weston, 2 Atk. 19, there was an apparent defect of title, and it was not probable that the superior title would ever be enforced — -That is similar to the case before the court, where an outstanding title is set up. In Kingsley vs. Young, 17 Ves. 469, there was no legal title, but only an authority to sell. It was presumed the purchaser took the estate with full knowledge; this is a strong case in point. In Thomas vs. Powell, 2 Cox, 394, the purchaser accepted the title. Fane vs Spencer, 2 Madd. Rep, 438. The mere circumstance of the nonproduction of a good title on the part of the vendor, will not pi event the vendee being bound to go on to show title in another to absolve himself from the contract. The defendant, by his own showing, cannot take advantage of the title if It be a defective one. He admits he took the lease to fortify his title, which was a defective one. It amounts to a compromise; and take it in the strongest terms, he is shut out from ever disputing that title he contracted for. Cann vs. Cann, 1 P. Wms. 723. Stapleton vs Stapleton, 1 Atk. 10. 2 Com. Dig. tit. Chancery, (2 C 1.) Goilmere vs. Batteson, 1 Vern. 48. Here the defendant wishes to keep the rents and profits, and the property too. Shall lie be in a better situation than other vendees? Fludyer vs Cocker, 12 Ves. 27. If possession is 'taken and the contract remains executory, the vender way be relieved, if the title is defective, but be must give up the property. Gibson vs Clarke, 1 Ves. & Beames, 500. An objfi-iion has been taken to the jurisdiction of the court of chancery, on the ground that remedy may be had at Law. The act of June 1777, ch. 3, did not point out where the deed should be recorded. Rut ad nit the deed to be properly recorde'd; yet ill the suit at law the defendant said the deed was not recorded any where, except in the mayor’s court; and on that admission the court at law decided. That decision was either right or wrong. But the chancellor could not look into the decision to see whether it be right or wrong; it was a decision conclusive that relief could not be had at law, so as to let in the jurisdiction of chancery. A new fact has been since disclosed, to show the decision should not have beeu what it was. Who was in possession of this new fact? The defendant; and he now wishes to take advantage of the false statement submitted to the court at law to defeat the claim in equity. Having defeated the complainants at law, by a falsehood, the defendant now sets up the truth by disclosing the fact,' so as to turn the complainants oat of a court of equity. If it shall appear that the complainants have remedy at law, shall they be sent back to that tribunal, and by doing so be defeated of all the rent, but for three years preceding the suit. This will be such glaring injustice as this court will not sanction. It has been said that the complainants might have sued Tor use and occupation. If they had sued for use and occupation, then the defendant would set up the lease. If he had not, no more than three years rent could be recovered, besides being subject to a plea of nil hahuit in tenemeniis; and although the complainants may, in part, recover at law, they are not bound to go there, when full and complete remedy may be had in equity. The act of limitations is pleaded. To what is it pleaded? It cannot be pleaded in this suit for enforcing a contract, and claiming rents as a consequence thereof; the complain* ants by fraud, were defeated at law; will limitations bar ¡n such a case? But it is said the bill sets out a good title, when it was a defective one. There is no authority to defeat the bill, and to show that it does not set out all that is materiai,and for which they can claim full and complete remedy. Admit the complainants cannot claim relief different from that they ask for by their bill; yet if the particular relief asked for is not inconsistent with the general relief prayed, it may granted.
    
      Pitney, in reply.
    The complainants cannot allege fraud, unless it is charged in the bill. The defendant is charged with having concealed a récord. How could he conceal a record? The records of the general court were open to the inspection of all persons'; The defendant was not 'bound to let the complainants know thát the deed was recorded. - He was not bound to aid them with information bf their title; k case stated., like a bill of exceptions, is nothing more than what is alleged as proved by both parties. Neither party is-bound to point out any defect in the title or statement of the other. The deed was not a private pap'er in the possession of the defendant only. The ’agreement to the case*, stated by the defendant, did not es-top him from denying any fact alleged in the casé stated. The lease was decided to be defective;' To estop the defendant,, it must be a complete instrument. An agreement never operates by way of dstoppeb It is a contradiction to say, a paper which is void operates as an estoppel. The chancellor decreed that the executors may claim á lease, but he Would not compel them to take one. Rut the complainants allege that this is erroneous, and that this court may correct that érror. They havénot appealed, and cannot claim a reversal on that ground. By not appealing, they have acquiesced in the decree;. One question is, whether a complainant is bound to prove a title in order to entitle him to enforce a contract where the issue before the court was whether he had a title or not? Here the complainants aver a seisin in the property; this is denied, and it must be proved. Upon this rests the whole equity of thecas.e. Will this court enforce a contract Unless a title in the party is made appear? A lease is a permission to the tenant to enjoy the property, and is an equivalent for the rent. Suppose they had not alleged a seisin, the consideration would have been out of the bill-, and there could be no pro-» tence for relief. They allege a seisin; and attempt to prove a compromise — not the consideration alleged in the bill. This might be a good consideration, but it must be ' alleged and proved. But you cannot prove a fact not put-in issue. The allegata and probata must agree. In Cooper's Plead. 6, 7, it is said, the party must put ift issue in the usii what is intended to be proved; and Clarke vs. Turion, 11 Ves. 240, is cited, where, as the fact was not in Issue, . the deposition was not permitted to be read. Suppose the compromise had been proved, what is the ground of equity claimed? IKot on the ground of title. The corporation Were bound to prove a title; it is the only equity in the bill, upon the basis of which they can recover — It is on their part to prove their title; they are bound to prove their case. The defendant was not bound to prove any title, until the complainants had proved their title. He denied the title of the complainants, and alleged a different one. lie need not prove a title ill any one, where the complainants show aone. The answer of the defendant is proof in the cause that the complainants had no title, it being responsive to the bill. What is the title of the corporation? They show none from the grantee to them; but they claim under certain acts of assembly. Instead of proving a title in themselves; they have showed one out of themselves. The whole property in controversy is covered by the act of assembly, which reserved it For public purposes, (not for the benefit of the corporation.) The first act, Í719, ch. 5, vested the property in Robert Johnson, with a proviso. The grant emanates from the province; and the corporation were vested with power to re-enter, if the ground rent oF 5s. was not paid. There is ño power given to the corporation to rent, lease, &c. The government bad appropriated the ground to public purposes, and they vested it in Johnson. If it had been in the corporation, they could have leased or sold to Johnson; but they were constituted the agents of the public, to see that Johnson complied. By the act of 1723, ch. 26, the same title is vested la Gordon, in the same manner and upon the same conditions, Johnson not having complied, &c. By the act of i 7 35, the same property is vested in Middleton on the same conditions, &c. These acts ail assert the property to be in the provinces The corporation, by accepting the ground rent of os. acknowledge the right of the public. The act of June 1777, ch. 3, gives power to. the corporation to sell or lease the property, under their common seal; so much of the money aiid rent reserved, to be applied to the purchase of one or more places for building ships, and the overplus to be applied to the benefit of the city. Does Abe act vest a fee In the corporation? They are the constituted agents of the public. What wa's given to the corporation was the overplus of the money. It is not shown that any place or places were purchased for ship-building» It appears that the corporation have received a large sum of money, and appropriated it to their own use. How can they claim of the defendant for violating his contract, when they have violated the sacred trust reposed in them by the public? Under the authority of the act of 1777-, they make the lease; and so far from recovering from the defendant, they owe a large sum of money to the state. By the third section of the act of 1777; it may seem that the property to be purchased was to belong to the city. Admit-this, they did not purchase, but if they had, it related only to the property to be purchased; and they would only hold for the benefit of the public. But no sort of title was vested in them to be sold or leased by them. They were solely trustees of the state. This being for the benefit of the state, the state should be a party in this cause. But putting aside the want of'parties. Has any title been proved in the corporation? Their long possession, or the possession of any under them, cannot bar the right of the state. This is assuming that they leased as owners; but that was not the fact, they leased as agents-, and the defendant held under the state, and under the state’s title. He held under the lease of the corporation, but under the title of the state. The corporation do not profess to lease under their own title, but only to act as the representatives of the state. The possession of the defendant, if under the lease-, was a possession under the title of the state; and is evidence of title out of the corporation. What would be the effect if the state was a party, is a different question. But what is the proof of the possession, as against the state? The answér of the defendant is responsive to the bill, and it Says hé agreed to purchase to avoid dispute, but he was then in possession, and though it is admitted in the case stated, that he did enter under the lease, yet a case stated is no evidence against either party, A bill of answer in chancery is no evidence, unless sworn to. A case stated is merely to bring a question of law before thé court. It is similar to a demurrer,; and it has never been supposed that a demurrer, which admits all the facts, would be evidence against the party demurring. It cannot be distinguished from a bill in chancery, which is con«Mured a mere statement of counsel. To show that the ship carpenters lot includes the whole of the ground hi controversy, the plat is referred to; and it is admitted that ancient surreys are evidence. The plat offered by the defendant L; ike origina'- -plot made out by Studded, the surveyor appointed under the act 1718, ch. 19. The plat offered by the complainants is stated to bq a copy. Upon the doctrine of title, how litr a vendor is bound to accept it, and how far a disputed title may be enforced in a court of equity, it may be said that when a vendee, after having been in possession, comes into a court of equity to be relieved against the contract, his situation is very different from that of a vendor, who comes in to enforce it. Here the vendors come in, and claim the aid of the court, to enforce a contract against the vendee. Whose fault is it:' Was it not the duty of the vendor to see that his deed was a good one. From 1801 to 1813, there has been an acquiescence by the corporation in the defendant’s refusal to pay rent. Then they went into a court of law; and claiming under a defective lease, because they would not resort to the record for proof, a judgment at law was had against them.. The rule between vendor and vendee is laid down in Sugdcn 210, and.it is, that a vendee is not compelled to accept a defective title. There h no evidence that the defendant too!: possession under the lease, from the corporation. In most of the cases cited, the vendees had taken possession under their purchases, and then went into equity to be released from their contracts. In Kingsley vs Young, 17 Ves. 463, the principle is not at war with that laid down in Sugden, 210. It does not stand upon the ground of a disputed title. In the purchase) of a disputed title, the parly sells the right he has. But between lessor and lessee, it is for permission of the lessee: to enjov, and is the consideration by which he is to,enjoy. This is different from the case of the vendor and vendee, A vendee gets the right, but not permission to enjoy. In White vs Foljambe, 11 Ves. 343, 344, the lessee was not bound to take a lease of a doubtful title. Thera is a wide difference between forcing the lessee to take a lease, and relieving; a lessor, who took possession. Mere the lessors come to enforce a contract to lake a lease of a doubtful title. But even were there no difference, yet hero the lessee was Hot in possession under the lease, or iho contrast for tiw lease. The defendant has not denied that the lease was not recorded, it is therefore not in issue whether it was recorded or not. But it must be taken as not recorded. The complainants had remedy at law. They might have brought their action for use and occupation. But it has been said, that in such an action the defendant might plead nil habuit in tenementis. This is not so. A tenant cannot contest the plaintiff’s title. 6 Bac. Ab. 44. Here the complainants were guilty of laches before they brought their suit at law, and before they came into equity. The loss is by their own negligence. The accumulation of rent is by their fault. That which would bar at law, will bar in equity. The act of limitations is a complete bar.
   DECREE AEÍTRMED.  