
    Henry S. Sanford, Appellant, vs. Aaron Cloud, Appellee.
    1. A party In possession of land, seeking to set aside a contract of purchase of such land which he has made with another person, as a cloud upon his title otherwise acquired, must clearly establish his own Mtl® before he can have such relief. Equitable relief 'of 'tills character is granted only in cases of clear title in the plaintiff.
    2. Under the statute of limitations, in force In this State from 1850 to December 13, 1801, seven years’ possession by a defendant, and those under whom he holds, adverse to plaintiff, and those under whom he holds, no legal disability operating to suspend the statute being shown, vests a good possessory title in the defendant as against the plaintiff and his grantors.
    3. A claim under a patent issued by the United States at a time when there was no title in the United States, is a sufficient claim of title. In such cases, it is not necessary that here should tbe a rightful title or a good conveyance, nor is it necessary under the statute of limitations of 1848, that title should be claimed under a written contract.
    4. Fraud cannot be inferred from evidence consistent with simple error or mistake of fact in representations made by one party to another.
    5. A party having the right to enter into possession of land, and agreeing to so enter in a contract of purchase based upon an acknowl-edgement of title in another, and obtaining possession so far as this party is concerned under such agreement, is estopped from referring his possession to rights acquired under a conveyance .by a thrid party to him. A party thus entitled to possession, or thus in possession, acquiring an oustanding title, holds it in trust and not for his own benefit.
    6. Upon a bill by -a vendee in possession under an agreement to purchase seeking to set aside such contract.of sale as.a cloud upon his title otherwise acquired, the defendant vendor cannot, have a de? cree for specific performance of the contract without cross bill.
    7. Upon a bill seeking cancellation of an agreement of sale upon the ground of fraud, where the whole structure of the case is based upon a repudiation of the contract, and the prayer of the bill is of this character, it not being proper to make any decree looking to the enforcement of the rights existing under the contract, this court should not declare such rights, but should direct the bill to be dismissed.
    Appeal from the Circuit Court for Orange county.
    The facts of the case are stated in the opinion of the court.
    
      28. K. Foster, J. W. Price, Fleming S Daniel for Appel-.ant.
    The case may be so presented that all the points of appeal may be included in’the discussions without reference to each in their order.
    Did the court have the right to decree specific performance upon a prayer for the same in the answer, or should it have refused to do so unless it were asked for in a cross bill after time allowed to file the same ?
    We hold that he could not decree specific performance upon prayer for the same in answer, and in support we quote: “When a bill is filed to set aside an agreement or conveyance, the conveyance cannot be established without a cross bill filed by the defendant.” If specific performance could not be decreed under the pleadings, then the contract should have beeii rescinded, if the allegations of the bill were sustained by the evidence. We claim they were sustained.
    The first question to be determined is, did Cloud have such a title as would have permitted him to give the deed he bound himself to give by the contract ?
    We think he did not. He sets up in his answer that he held through Constant Potter, and exhibits a deed from Constant Potter to himself. (Record, page 86, “exhibit A”) That deed describes the lands as being the same conveyed to Potter by the United States, by patent dated June 28, 1850. This deed of Potter is without the relinquishment of dower by Potter’s wife. The next exhibit by Cloud is exhibit B. 3 Daniel’s Chan. Plead, and Practice, 3 Am. Ed., top page, 1650; 11 Wheaton, 446; 2 Madd. Chan., 329; 2 Atk., 133; 1 Ball & Beatty, 217; 2 Cox, 78.
    As to the necessity of a cross bill for affirmative relief, J)eg to leave' to refer to the case of Wooten vs. Bellinger & "Davis, recently decided by this court,-and the authorities 560 there cited.
    This is the general rule. Mr. Tyler, in note 1, page 179, of Mitford & Tyler, Plead, and Prac. in Equity, refers to an exceptional instance. This note is as follows: “There ist an instance, however, in which this court will, it seems, contrary to the old practice, give the benefit of a cross bill* to a defendant upon his answer, namely: when the original bill is for specific performance, and he proves an agreement dilferent from that insisted upon by the plaintiff, and 'Submits to perform the same, for, in such case, if the court decide in favor of that stated by the defendant, it will decree the same to be executed.” Pife vs. Clayton, 13 Ves., 546; 15 Ves., 525; page 88 of the Eecord. This is a patent of the United States to Constant Potter under the armed occupation act.
    The foregoing is the entire title of Cloud as it appeared of record at the time of the contract.
    • The deed of'Potter was without relinquishment of dower, and the United States patent was cancelled, as appears by exhibit B, page of record 172. *
    In the contract time was taken and deemed as the very essence of the contract, yet Cloud does not obtain relinquishment of dower until over one year after the performance on Sanford’s part became due. .
    The patent being cancelled, the title fell to the ground, unless Cloud and his grantor could claim through Pinne-gan. Cloud procured a quit claim deed from Pinnegan about one year after he had entered into the contract with Sanford. Did Pinnegan have the title at that time? He, Pinnegan, had previously conveyed by warrantee deed to Sanford the grant which included the land described by the numbers in the contract. In such deed were excepted lands conveyed to the heirs of Constant Potter, but those lands were not described at all by numbers, metes, and bounds, or any other description sufficiently definite to legally distinguish them. He subsequently quit claimed to Sanford, prior to the deed to Cloud, all right of himself in the lands contained within the Levy grant except what had been previously conveyed, no further description to the land being giyen.
    We urge that the exceptions in the deed being so indefinite, the whole land conveyed, which included the exceptions, became the grantee’s, carrying the exceptions with them. Mooney vs. Cooledge, 30 Ark., 640.
    If the appellants are correct in that position, then the title had passed from Finnegan to Sanford, and could not be conveyed to Cloud.
    Evidence-taken to show that for a series of years Finnegan had in all mortgages which he gave to parties excepted the land of Potter’s, but we contend that no description was ever made that carried anything definite.
    An effort was made to establish the “Potter Place,” as it was called, but we think the court erred in allowing parol testimony in that point of description, and that which was allowed was not sufficient to enable the chancellor to find what land was Constant Potter’s, and therefore Cloud’s. We therefore urge that the chancellor erred in deciding from the evidence that Cloud had, at the time of the making of the contract, the equitable and legal title to the land described in the contract, and claim that the evidence goes to show that the legal and equitable title was not in Cloud.
    We think that the court erred also in admitting the power-of-attorney made by Potter to Finnegan; that under the laws of the United States governing the settlements under the armed occupation act, no such instrument could be made prior to the issuing of the patent.
    The 12th point of appeal is that the court erred in ordering that Henry S. Sanford “do make a deed to Aaron Cloud to a certain piece and parcel of land, described in said contract as the southeast quarter of the northwest quarter of section 36, township 19 south, of range 30 east, being about forty acres, which was taken in the equivalent of eight hundred.”
    No allegation of mistake in the numbers appears in the complainant’» bill, but the respondent puts in evidence that Mr- Sanford had, after the signing of the contract, sold or .transferred the same to other parties. Mr. Sanford’s testimony shows that he considered it an error in numbers. The complainant shows by parol testimony that the land sold was contracted for by other parties to the contract with Cloud, and the complainant also shows that Cloud himself told Humphreys that it was a mistake. But, as before stated, no allegation of mistake is made, but the evidence was sufficient to satisfy, the chancellor that speoific performance, as to that deed, was-out of the power of the complainant, and if he. attempted to decree the equities, he should have ascertained the value, &e., sufficiently for him to have properly decreed.
    The 16th ground of appeal is that the court erred in not granting -an injunction to stay the proceedings at law as prayed by; said bill.
    If the chancellor attempted to decree specific performance, -he. should have restrained the proceedings at law at least until satisfied that it was out of his power to settle the whole matter in equity.
    It is also insisted by the .appellants that the,.chancellor, if he had the power to decree specific performance, should at the .same time have allowed something to the complainant for his damage, and that interest should not have been run against the complainant prior to- the time that the respondent, Cloud, was able to give good title.
    That it was some three years before he removed the in-cumbrance of dower, and until the bringing of the complainant’s bill was not in condition to make a good and sufficient deed.
    It may be argued that, if the court could not decree specific performance except under a cross bill, that the bill should he dismissed, and the parties left to their rights under the law.
    We think not. We believe that the chancery side of the court should determine and settle the relations of the parties.
    Fry on Specific Performance and .Contracts, section -778, note 1.
    
      St. Clair Abrams & Summ&rlin md Boting Baher for Ap-pellee.
    The complainant was not entitled to a rescisión, because he had not sought to cancel the contract within a reasonable time. According to his own showing he discovered the alleged “misrepresentation, covin and fraud,” within four months after the execution of the contract, and yet he did not move to rescind for nearly six years after, and during this period he remained in possession of the land, and never even offered to return it to Cloud. * * * He must therefore he regarded as having assented to the contract in spite of the alleged discovery. Barefield vs. Price, 40 Cal.; Morgan vs. N. O. E. E. Co., 2 Wood, 244; Sadler et al., vs. Eobinson, 2 Stew., Ala., 523; Desbrow vs. Jones, (How.) Mich., 104; Agros vs. Mitchell, 11 Miss., Smead and M., 683.
    He who seeks equity must do equity. The record shows that Sanford had not put himself in a position to seek equity before bringing the bill. He does not show an offer on his part to perform the contract; he does not offer to return the possession of the land to Cloud. He does not show such performance on his part, or tender, as to put him in a position to demand title. (Mitchell vs. Sherwood, 11 Freeman, Ch., Miss., 120. See also Estep vs. Sstep, 23 Ind., 114; Miller vs. Farson, 17 Wis., 624; El wood vs. Lanier, 27 Md., and others,) where it is laid down that a vendee cannot retain the land and defend for want of title.
    He was not entitled to rescisión unless evicted by titles paramount. He was in undisputed possession of the land under a contract, and had been tendered a deed if he would comply with the conditions precedent. He was not entitled to any equitable relief on account of outstanding adverse title. He could only rescind if evicted or if danger existed of his eviction. Anderson vs. Lincoln, 6 Miss., (5 How.,) 284; Davis vs; Jelks, 13 La. Ann., 432; Love vs. Watkins, 40 Cal., 692. In the absence of fraud or eviction the ven-dee of real estate, in possession, * * * is entitled to no equitable relief on account of outstanding encumbrances or adverse title. Eliott vs. Thompson, 4 Humph., (Tenn.,) 99.
    If ever there had been an outstanding legal title he would not have been entitled to rescind. It is a well settled general rule that when a purchaser has been put in pos-lession, Ee' cannot afterwards acquire a title and set it up in opposition to the vendor. * * All he can claim is the money paid out. Henderson vs. Cowen, 18 Miss., (S. & M.,) 486; Ward vs. Pery, 1 Barb., N. Y., 114; Kenley vs. Crane, 34 Pa. St., 146.
    The record shows that even if the legal title vested in Finnegan, the equitable title vested in Cloud through Potter, and that Sanford knew of this equitable title. When, therefore, he purchased from Finnegan it could only have been as trustee for Cloud.
    Furthermore, by purchasing the outstanding legal title, Sanford, by his own acts, had precluded Cloud from comply,ing with his part of the contract,'hence he had no right to rescind for a cause which he had himself produced. Chitty on Contracts, 738.
    
      If Cloud had brought suit for the purchase money lie could not have defeated him by pleading the vendor’s want of title. (Fowler vs. Smith, 2 Cal., 39,) or by purchasing the outstanding title. (Ash vs. Holden, 36 Me., 163.)
    Sanford is estopped to question Cloud’s title to the land. It is a well settled principle that a person coming into possession under an executory contract of purchase, is es-topped from setting up an outstanding older title against his vendor. Hambleton vs. Taylor, Litt., Ky., Select Cases, 444; Chiles vs. James, 4 Dana, ICy., 479; Washbun on Real Real Property, 3rd Eddition, Yol. 3, page 85, and cases cited; 12 Barb, H. Y., 352; Riley vs. Milborn, 4 J. J. Mar., (Ky.,) 395.
    The records, despite Sanford’s claim, establish the fact that' Sanford entered into possession by virtue of a contract. He could not have-entered by virtue of his deed from Finnegan, because, at the time of the execution of the deed, and for at least nineteen years previous, the land had been held adyers.ely to Finnegan. (Magruder, et al., vs. Porpall, 13 Fla., 602.) If he did not enter into possession by virtue of His contract, then his entry was unlawful and he cannot obtain the aid of a court of equity in retaining that which he took possession of unlawfully.
    Sanford was estopped from questioning Cloud’s title because he claims title under Finnegan and Potter, and Finnegan’s deed to Sanford recognized Potter’s title in the land. Sanford is therefore estopped from denying title in Potter and those holding under him, which is recognized in the very deed under which he claims. Hart vs. Jolrn-son, 6 Ohio, 87.
    The rule has been repeatedly affirmed that one claiming title under a partjy who is estopped to deny the title of another, is bound by the estopped to deny the title of another is bound by that estoppel. Phelps vs. Blunt, 2 Dev., N. C. L., 177; Washburn on Real Property, Vol. 3, 34; Scott vs. Douglass, 7 Ohio, 227; Casen vs. Jackson. 4 Pet. 85; Douglass vs. Scott, 5 Ohio, 194, &c.
    “Fraud is never presumed but must always be proved.” (Wilson and Clelan vs. Scott, 5 Fla., 305; White vs. Walker, 4 Fla., 478, Smith and wife vs. Hines, 10 Fla., 258.) Hot even a presumption of fraud can be derived from any part of the records of the case. Nor was there any misrepresentation, or if there was any misrepresentation it was simply that of opinion as to the «validity of the title, based upon facts frankly stated to Sanford. -Story Equity Jurisprudence, 191, and other authorities ‘quoted.
    The misrepresentation, if there was any, must have actually misled Sanford. Walker vs. Hughes, 59 Ill., 375; Gentry vs. Shutter, 44 Md., 237.
    Sanford could not have been misled by Cloud’s misrepresentation. Cloud had told him truthfully from whom he had derived his title. His opinion as to the titles being good should not have misled Sanford. His duty was' to have instituted inquiries, all sources of information being open to him. (Story Equity Jurisprudence, sec. 200.) When each party has equal means of ascertaining the facts, equity will not relieve. Perry on Trusts, 200.
    There was not any misrepresentation whatever at the time of the executing the contract, and at the time of beginning of suit Cloud had not «only the possession but the right of possession, and the right of property in the land was vested in him. (Washburn, vols. 3 and 4; Walker Am. Law.) That a deed has been executed by Finnegan to Potter, in -1856, the records and Finnegan’s testimony clearly establish. In all of Finnegan’s other deeds the fact of a sale and conveyance to Potter is ecited. Finnegan was estopped from denying the execution of the deed. He never has denied .the execution. He held title by conveyance from Potter, who held from Finnegan, (Douglass vs., Scott, 5 Oh.,) and Finnegan admits the conveyance in all his deeds to the grant.
    But even if there had never been any written deed from Finnegan to Potter, Cloud’s title was still perfect. The record clearly shows that Potter held adversely to Finnegan, and with Finnegan’s knowledge and consent, at least from 1852, and that such adverse possession even after, in 1861, when Potter executed deed to Cloud, the land had been held adversely to Finnegan a period of nine years. By the acts of 1847, Potter had consequently acquired a title by prescription. In 1876, when the suit was brought, there had been twenty-four years adverse possession, thus vesting in Cloud an absolute indefensable title. Magruder, et al., vs. Perpall, 13 Fla., 602; Washburn on Real Property, vol. 3, 113 to 138; School District vs. Benson, 31 Me., 384,385; Cases cited in Wash., vol. 3,146; Hughes vs. Groover, 39 Vermont, 365.
    It was competent for Cloud to prove the identity of the land by parol testimony. When a deed is uncertain or vague in its description of land, parol testimony is competent to establish it. Harvey vs. Mitchell, 11 Foster, (31 N. H.,) 575; Bonner vs. Willy, 39 Ill., 418; Bell vs. Woodward, 46 N. H., 332; Greenleaf on Evidence.
   Mr. Justice Westcjtt

delivered the opinion of the court.

Plaintiff, Sanford, in possession of the land which is the occasion of the controversy, asserts a fee simple title in himself thereto, alleges that the defendant, Cloud, holds a contract of sale of said land executed by the defendant as vendor and himself as vendee ;* that this contract originated in the fraud and covin of defendant; that it is a cloud upon his title, and that deféndant has instituted suits at law upon such contract against him, the plaintiff. He prays for a decree that the contract may be cancelled as “null and void;” that defendant may be enjoined from asserting title thereunder; that plaintiff may be protected in- his possession, and that defendant may be decreed to repay to plaintiff such sums as were paid him by plaintiff under the contract, as well as for damages.

This bill presents the case of a party in possession of land seeking the aid of a court of equity to remove a cloud upon his title.

In such cases a party is relieved upon the principle quia, timet, that is, for fear that such contract may throw a cloud or suspicion over his interest or title. The interference of a court of equity in such cases is a matter *of discretion — that is, a sound and reasonable discretion, secundum arbitrmm bom judicis.• 1 Story Eq., 693.

The jurisdiction exercised in such cases is to give a party in possession denied the privilege of trying at law the right of possession, repose, and peace. It is to relieve him against vexation resulting from a deed or contract of any character obtained under such circumstances as would induce a court of equity to put into active operation its power of “protective and preventive justice,” through the instrumentality of a decree directing the surrender and cancellation of the deed, and by affording such other and additional relief as should follow from this equity.

There is one rule of universal application which prevails in cases of this character. It is nowhere better stated than in the case of Banks vs. Evans, 10 S. & M., 62, where it is said that “he who comes'into equity to get rid of a legal title, must show clearly the validity of his own title and the invalidity of his opponent’s.” Equity will not act in such cases in the event of a doubtful title. 1 Story’s Eq. Jur., 11th Ed., sec. 700 note a; 54 Ill., 523; 44 Miss., 654; 2 Nev., 209; 10 S. & M., 62. So, also, is it a rule, both in courts of law and equity, that a party to be relieved and to succeed in contests of this character must do so on the strength* of his own title, and not on the weakness of that of his adversary. 7 Wheat., 242. Being controlled by this primary rule in cases of this character, our conclusion is that the plaintiff here must fail for the reason that at the hearing he did not show title in himself. Plaintiff claims title through Finnegan. Defendant claims title both through and against Finnegan, claiming, first, through a deed from Finnegan to his grantor (such deed being alleged to be lost) and second through an adverse possession by himself and his grantor of sufficient length of time to bar the entry of Finnegan and those claiming through him under the statute of limitations. c

Anterior to 1850 the legal title to this land was in Joseph Finnegan, he having purchased a Spanish grant embacing this land of Moses E. Levy, Levy’s title being admitted by the United States. Constant Potter, the grantor of defendant Cloud, having settled upon and entered the land under the armed occupation act of August 4, 1842, received a patent for the land from the United States on the 26th June, 1850. It was discovered that the United States had not title at the date 'of this patent and the patent was subsequently cancelled and a float issued to Potter in lieu thereof. Finnegan, plaintiff’s grantor here, who had as stated, acquired the land in 1848 or 1849 from Levy, found Potter in possession in 1850 or 1851 claiming under his patent. Finnegan “did not propose to remove him, but agreed that if Potter would give him his claim against the government he, Potter, might remain.” This Potter did, and Finnegan swears that while he does not 'recollect positively, still he was always of the impression that he made Potter a deed for the land, that he always treated the land as Potter’s, that he never claimed any ownership or exercised or attempted to exercise any control over it, and that Potter held adversely to him. Potter was. therefore in adverse possession as against Levy or Finnegan, under claim of title from the United States in 1850, and his possession after that time was adverse to Finnegan and his grantees. On the 15th day of May, A. D., 1860, the land was conveyed by Potter to Cloud, the defendant in this suit. Cloud went into possession under deed from Potter, and so remained in possession up to the time of plaintiff’s entry into possession in the spring of 1871.

Sanford the plaintiff claims title under a warrantee deed from Finengan dated the 11th day of May, A. D., 1870, and a quit claim deed from Finnegan dated the 27th day of April, A. D., 1871. These deeds cover the Spanish grant, of which this land was originally a part. In the warrantee deed Finnegan excepted from the grant “those tracts or parcels of land heretofore conveyed out of said grant by the said Joseph Finnegan to the parties hereinafter named to-wit: a tract of one hundred and sixty acres to the heirs and representatives of Henry A. Crane, konwn as the Mellonville tract, and one hundred and sixty acres to the heirs and representatives of Constant Potter” The quit claim deed covers the whole of the Levy grant with an exception of those tracts or parcels of land heretofore conveyed out of said grant by the said Joseph Finnegan. The quit claim deed was without consideration. Some questions were raised in argument as to the effect of these exceptions, and there is testimony in the record going to establish knowledge by Sanford as to what was intended by them, but we examine the question of title without reference to the matter.

It is clear from the above statement of the title of the respective parties, that Constant Potter held admitted adverse possession of this land under claim of title from 1850 or 1852 up to the date of his deed to Aaron Cloud, May 15, 1860, and that Cloud held adverse possession under a claim of title derived from Potter from that date up to the 13th December, A. D., 1861, the date at which the statute of limitations was suspended in this State. This is a period of more than seven years. The statute of limitations in force in this State at that time was the act of 1848, chapter 142, laws. This act limited the right of entry of Finnegan, plaintiff’s grantor, to within seven years next after his right or title accrued as against all and every adverse possession of the land for the term of seven years.

We have in this case seven years possession by Cloud and those under whom lie holds adverse to Sanford and those under whom he claims, and as no legal disability such as operates to suspend the statute is shown or claimed to exist on the part of Sanford’s grantors, it is clear that Sanford had no title as against Potter and his grantors. The only doubt as to Cloud’s title from Potter which the record discloses is an allusion in plaintiff’s testimony to the question of an outstanding right of dower in the wife or widow of Potter. There is no allusion to this matter in the bill, or any of the pleadings. Among the proofs before the Chancellor at the hearing, was a conveyance by a person purporting to have been the wife of Potter at his death, reciting her subsequent marriage and divorce. This conveyance appears to be sufficient. It is executed in proper form and conveys to Cloud any interest which she hád in the property.

It is thus clear that upon the hearing it not only appeared that plaintiff had no title, but it was apparent, to the court that the possessory title was in Cloud, and that the right of entry of Sanford and his grantors was barred.

Plaintiff having no title upon which this contract of sale could be a cloud, it follows that the bill should have been dismissed at the hearing.

Before leaving this question it is proper that we should say more of the nature of Potter’s title as against Finnegan, as well as something concerning the alleged fraud of Cloud in the contract of sale, and the nature of Sanford’s possession.

We have remarked that Potter’s possession was adverse and under a claim of title. That it was adverse in its nature is clearly established by the testimony. He first claimed under a patent from the United States. That the title was not at that time in the United States, did not change the nature of his possession. (4 Sand., Chy., 633.) The title not being in the government or sovereign, an adverse possession under • a claim of title could be effective, and a claim under a patent erroneously issued is a claim of title. It is not necessary that there should be a rightful title. That Finnegan exbcuted a deed to Potter is not clearly established. Finnegan is under the impression that he did; but we deem this immaterial. Potter claimed to own the land. It was not necessary that he should have claimed under a* written contract, and looking to the testimony of Finnegan, there was unquestionably a written or parol contract by Potter with Finnegan. Potter claimed the fee and had adverse possession. Finnegan in all his transactions with Sanford admitted and advised Sanford that he claimed no title to the land as against Potter. Here was an entry .and continued adverse possession under a claim of title. It was not necessary that he should have claimed title under a paper writing, or if he did so claim, that it should be a good conveyance. 8 Cowen, 589; 3 Watts, 72.

As to the alleged fraud upon the part of Cloud in the matter of this contract of sale with Sanford. We do not see evidence of anything more than error or mistake upon the part of Cloud. We cannot infer fraud from evidence entirely consistent with simple mistake. In addition to this, however, the bill here is not for a simple rescisión upon an equitable basis of restoration to rights and relations existing anterior to the contract of sale.

As to Sanford’s possession. The nature of this possession is a matter which may be properly considered under the bill and answer in this case.

Anterior to the quit claim deed of Finnegan, under which Sanford claims possession, he, Sanford, treated with Cloud as the owner of the land, and by virtue of Cloud’s covenants and a receipt by Cloud of two hundred dollars, he was given the right of possession as against Cloud. He took possession. As between himself and Cloud his possession must be referred to this contract without reference to his intentions and wishes not made known to Cloud at the time of his entry. Cloud did not give him possession under any adverse elaim of title, and whatever may have been his private ulterior purpose, his entry, so far as Cloud is concerned, must be referred to the contract under which Cloud agreed that Sanford might take possession, and Sanford agreed to take possession. If he wished to contest Cloud’s title and rights, he should have done so not by an apparent and agreed admission of them, or by an acting in subordination to them. He obtained his possession, so far as Cloud was concerned, by an admission of Cloud’s right, and he is es-topped to deny that right.

These parties are privies in estate. The rule we mention is a general one. It should not be defeated by subtle and refined distinctions of the vendee as to his intended method of entry into possession. If lie gets the covenants of a party yielding possession, and enters into covenants looking to his taking possession, a court of equity will refer his entr}', so far as this party is concerned, to such covenants. It was while thus entitled to possession, or after possession of the the land was taken, that Sanford, without consideration, received from Finnegan the quit claim deed to the tract of land of which this land was originally a part.

Independent of other facts connected with this transaction, as established by the testimony, Sanford thus in possession purchasing an outstanding title, (if such it had been,) is entitled to nothing more than its fair and bona fide cost. In this case it coat Sanford nothing. 1 Sug. on Vend., 642; 4 Mon., 297; 2 John., 33; 3 S. & M., 694; 10 S. & M., 501; 1 Barb., 115; 34 Penn. State, 146.

This rule results from “the relation which it has been found expedient to establish between vendor and vendee to preserve the confidence which, in matters of contracts, ought to exist between man and man, and to prevent undue advantage from information acquired by means of such contracts.” Says Chancellor Kent, speaking of this subject, “ it is a general principle pervading the cases, that if a party who lias a limited interest gets an advantage by being in possession ‘’or behind the back’ of the party interested in the subject, or by some contrivance in fraud, he should not retain the same for his own benefit, but shall hold it in trust.” 2 John. Chy., 33.

In. view of the title of the plaintiff as thus disclosed, as well as in view of the nature of his possession, it is apparent that the plaintiff had failed to make out’his case, and the bill should have been dismissed.

Instead of dismissing the bill, the Chancellor directed, substantially, a performance of the contract, which plaintiff sought to set aside. There was no cross bill by the defendant under which he could obtain relief based upon equities which the proofs may have established. The case is not one for an account, or one of such character- as to constitute it an exception.to the rule, that the defendant, to have affirmative relief, must resort to his cross bill. Upon a bill by a vendee in possession of land under an agreement tci purchase seeking to set aside the contract of sale as a cloud upon his title, the defendant vendor cannot, without cross bill, have a decree for specific performance of the contract. Litt. Sel. Cases, 245; Wooten vs. Bellinger, 17 Fla., 289; 3 Daul. Chy. Pldg, and Prac., 1680; 11 Wheat, 446; 2 Mad. Chy., 329; 2 Atk., 133; 1 Ball & Beat., 217; 13 Ves., 546; 15 Ib., 525. The conclusion of the court is, therefore, that the decree herein rendered should be reversed and the cause remanded, with directions to dismiss the bill.

Appellant’s counsel think that we should determine and settle the rights, of the parties. We have nothing calling into action the jurisdiction of the court in this case except the bill. The plaintiff here seeks a cancellation of this agreement. This is the prayer of the bill. Ho case is made by the bill looking to the validity of this contract of sale. The whole structure of the case is based upon an utter repudiation of it. To treat of this agreement as effective and ■valid, would be inconsistent with the relief prayed as well as with the case made by the bill. The only proper decree was to dismiss the bill. Litt. Sel. Cases, 146; Story Eq. Pldg., 41; 6 Harr. & John., 29; 10 Pet., 182; 2 Pet, 595; 1 Daniel Chy. Pldg. and Prac., 383.

The decree is reversed, and the case will be remanded with directions to dismiss the bill.  