
    Rucker v. Lowther.
    April, 1835,
    Richmond.
    Vendor and Vendee — Covenant to Convey Land — Warranty — Case at Bar. — L. attorney for (1. covenants to sell and convey land to R. “according to a power of attorney given him by C.'’ Hjslb, this is a covenant for a conveyance by C. with general warranty, unless the power of attorney referred to in the covenant, confined the attorney to a special warranty, and it was shewn to the purchaser at the time of contract, or its contents fairly and truly stated to him; and the power of attorney not being produced, and there being no proof of its being lost or mislaid, parol evidence is not admissible to prove, that vendor and purchaser contracted for a deed with special warranty.
    By sealed articles of agreement between Lowther attorney for Cochran and Rncker, Lowther, “according to a power of attorney given him by Cochran,” agreed to sell and convey to Rucker a parcel of land in the county of Bath (described by metes and bounds), containing “as well as ascertained by the parties” 184 acres,, the title to be made on or before the date of the last payment; for which Rucker agreed to pay Lowther, attorney for Cochran, SS2 dollars in two instalments; the last of which was payable three years after the agreement; with a memorandum subjoined, that as Lowther had authorized one Given to sell the land, if he had sold it, the contract should be void. Rucker was put into possession ^immediately; and after-wards paid the whole purchase money to Lowther, part in money, and part by an assignment of bonds. And then, Lowther tendered Rucker a conveyance of the land, executed by Lowther as attorney for Cochran, with special warranty against Cochran and his heirs, and all claiming under him. In this convej’ance the parcel was described (as in the articles) as containing 184 acres. This deed Rucker refused to accept. 'And shortly afterwards, an ejectment was brought for the land against Rucker, bj' persons claiming by title paramount to Cochran.
    Rucker exhibited a bill against Lowther, Cochran and the obligors in the bonds assigned to Lowther, in the superiour court of chancery of Greenbrier, alleging, that he, in part, contracted to purchase the land of Lowther himself, and Lowther represented the title as unquestionable, and agreed to convey it to him with general warranty; that Lowther, however, drew the articles of agreement, and in doing it practised a gross fraud; for that the articles, as written by Lowther, purported that he acted under a power of attorney from Cochran, and was to make such a conveyance as that authorized, whereas not one word had been said to Rucker about such power of attorney, nor did he, being illiterate and unable to read writing, know till afterwards, that there was any such expressions in the articles; that he expected to receive a conveyance from Lowther himself, as the vendor, with general warranty ; that Lowther had tendered him a conveyance from Cochran, executed by himself as Cochran’s attorney, with a special warranty, which he had refused to accept; that an ejectment had been brought against him for the land, and that it would probably be recovered from him; and that he had paid the whole purchase money to Lowther, part in money, and part by an assignment of bonds, on which Lowther had brought suits for his own benefit. And the prayer of of the bill was, that the contract should *be rescinded ; that the obligors in the assigned bonds should be enjoined from paying Lowther the money due thereon; and that Lowther should be compelled to return the purchase money with interest. .
    The injunction was awarded.
    Lowther, in his answer, denied, directly and positively, every charge of fraud and misrepresentation alleged in the bill; and stated, that some time before the execution of the articles between him and Rucker, he-had bought of Cochran such right and title as Cochran had in the land in question, and Cochran gave him a letter of attorney authorizing him to sell and convey such title | as he had, and nothing more: that Rucker, who resided in Bath, where the land lay, sought Lowther residing in Harrison, to purchase the land, professing to have full knowledge of the land, and of the title: that Lowther told Rucker all he knew about the title, — that he had purchased Cochran’s right merely, that he had received no deed from Cochran, but only a letter of attorney authorizing him to convey the land with special warranty, and that he could and would make no other conveyance: that the articles of agreement were truly drawn according to his bargain with Rucker, and were truly read to Rucker, and well understood by him, before they were executed: that Rucker had himself represented the land to be worth five dollars per acre, and it was sold to him for only three dollars, on his agreeing to take the risk of Cochran’s title: that Lowther had discovered, since the contract was made, that the parcel contained 194 instead of 184 acres as described in the articles: that Lowther had put Cochran’s original letter of attorney to him, in the hands of one Given of Bath, whom he had authorized to sell the land as his agent; which was the reason of the memorandum subjoined to the articles, that the contract should be vacated, in case Given had sold; and that the original letter of attorney had been ever since, and was still *in Given’s hands, but Lowther had procured another letter of attorney from Cochran, which had been recorded in the county court of Harrison, and which he exhibited with his answer.
    Cochran never answered, nor was the cause matured for hearing as against him.
    The depositions of W. Lowther and R. Perine who were subscribing witnesses to the articles of agreement, were taken and filed by the defendant Lowther.
    W. Lowther deposed, that, going accidentally to the defendant’s house, he found him writing; that he soon finished, and told the deponent he had sold a tract of land to Rucker, who was sitting by; that duplicates of the articles were drawn, one of which was handed to the deponent to look over, while the defendant read the other aloud; that the articles were then executed by the parties, and one of the duplicates taken by each ; that after the bargain, the defendant remarked to Rucker, that he had made a great bargain, and Rucker replied, that he thought he had, if the title was good, otherwise not; and the deponent understood from- the conversation, that Rucker knew there were some doubts about the title.
    Perine deposed, that Rucker came to the defendant Lowther’s house, where the deponent lived, made himself known, and said he had come to purchase a tract of land in Bath, which he understood Lowther owned. Lowther said he did own land there, which he had bought of Cochran : Rucker said, he had been to see Cochran, who informed him that Lowther had bought it. Rucker asked Lowther, what he would take for it: Lowther asked him to make an offer: Rucker offered three dollars per acre; Lowther asked five. Rucker said he would give five, if Lowther would give him a deed with general warrantjT; but Low-ther told him, he would make no other title but such as he had got from Cochran— that he had a power of attorney from Cochran to sell the *land, and make a conveyance. The bargain was closed at three dollars per acre. The deponent understood from Rucker’s conversation, that he had inquired into Cochran’s title; and he seemed to know all about the title, as well as the quantity, which he said was 184 acres. After the contract was written, Rucker took it, and seemed to read it to himself; and then said it was all right, and executed it.
    Many depositions taken by Rucker, proved that the value of the land was not more than three dollars per acre, and that the purchase money Rucker had agreed to pay, was nearly all that he was worth. Rucker asked one of the witnesses if he knew, whether he Rucker was scholar enough to transact his own business where much writing was required? The deponent answered, that he did not believe, that Rucker was a judge of writings of that kind, nor of any other that should contain much.
    Rowther exhibited, 1. the deed he had tendered to Rucker; and 2. a letter of attorney from Cochran to Rowther, authorising him to sell and convey the land, describing it as containing 194 acres, with special warranty against him and his heirs. This letter of attorney was without date; it was recorded in Harrison county court two years and four months after the date of the articles between Rowther and Rucker.
    Pending the suit, the action of ejectment brought against Rucker was determined, and the land was recovered from him. The record of the ejectment was exhibited.
    The chancellor, upon the hearing, dissolved the injunction he had awarded to restrain the obligors in the assigned bonds from paying the money thereon due to Rowther, and dismissed the bill: from which decree Rucker appealed to this court.
    Stanard and Reigh, for the appellant,
    insisted, that by the terms of the articles of agreement, Rucker was entitled *to demand a conveyance from Cochran with general warranty. The articles imported, indeed, that Rowther agreed to sell and convey, according' to a power of attorney given him by Cochran ; but yet it was to sell and convey, generally; nothing was said in the articles about a special warranty. It appeared from Row-ther’s own shewing, that Cochran’s letter of attorney was not before the parties, at the time of the contract; it was in the hands of Given; Rucker never saw it. It was remarkable, that Rowther never reclaimed this instrument from Given, to exhibit it in this cause. He got a new letter of attorney from Cochran, suited to the contract which he alleged he had made with Rucker: this letter of attorney was without date; but that it was executed after the contract, appeared from the fact that it described the land as being 194 acres, instead of 184 acres as described in the contract ; and Rowther stated in his answer, that the quantity was discovered to be 194 acres after the contract was made with Rucker. The original instrument in Given’s hands, ought to have been produced. As to the parol evidence, the witnesses contradicted and discredited each other. The defendant Rowther swore, in his answer, and the witness Rowther deposed, that the articles were read over to Rucker, before they were executed. But the witness Perine, present from the beginning to the end of the treaty, did not say the ar ■ tides were read to Rucker; he said, that Rucker read them to himself. Besides, parol evidence was not admissible to explain, or add to, the terms of the written articles.
    Johnson, for the appellee,
    said, that the difference between the evidence of the two witnesses, was exactly such as shewed there was no concert between them, and no procurement on the part of Rowther; and so tended to establish their veracity. The evidence of the two witnesses, was, in substance and effect, the same: they both proved, that Rucker bought Cochran’s title, and ^stipulated from a conveyance of that only. It was true, a vendor stipulating to make a conveyance of land in general terms, without any mention of a special warranty, was bound to make a general warranty: but here, Row-ther stipulated to sell and convey “according to Cochran’s letter of attorney to him:” that letter of attorney thus referred to, constituted part of the agreement: and the parol evidence was admissible to shew, that the purchaser was informed, that the letter of attorney referred to, only authorized a conveyance of Cochran’s title, with a special warranty, and intended to stipulate for such a conveyance. The parol evidence was certainly admissible, too, to repel the charges of fraud alleged in the bill, as the ground of relief; and it did repel them. There was no evidence to discredit the witnesses. Rowther was guilty of no fraud or deception in procuring the second letter of attorney from Cochran: he himself disclosed the facts in his answer, and stated that the original letter of attorney was in Given’s hands. He was never required to produce the original instrument. And if Rucker thought it important, he had exactly the same right that Rowther had, to require Given to produce it, or to take his deposition. The specific ground of relief set up in the bill, was, not that the terms of Cochran’s letter of attorney were misrepresented, but that the purchase was in part made from Rowther, and he was to make the conveyance with warranty; that nothing was said about Cochran, or his power of attorney to Rowther, and the reference to it in the articles, was fraudulently inserted by Rowther. The imputed fraud was the point in issue between the parties; and the charge of fraud was not only unsupported by proof, but was disproved.
    
      
      Vendor and Vendee — Contract to Sell Land Warranty. Tie principal case is cited in Tavenner v. Barrett, 21 W. Va. 681, for the proposition that, as a general rule, upon an agreement for the sale of land, the vendor, though nothing be said in the contract on the subject, is considered as contracting for a general warranty. See monographic note on “Deeds” appended to Fiott v. Com., 12 Gratt. 564.
      Same — Same—Title.—A contract or agreement to sell land implies a covenant on the part of the vendor to convey a good title, unless it be otherwise stipulated therein. Watson v. Coast, 85 W. Va. 473, 14 S. E. Rep. 252, citing Rucker v. Lowther, 6 Leigh 259; Tavenner v. Barrett, 21 W. Va. 657, 681.
    
   CARR, J.

This is a bill to rescind a contract for the sale and purchase of land, which has been carried into execution by the vendee taking possession and paying *the purchase money, and to recover back the purchase money with interest. To justify a decree of this kind, there must be a pretty strong case; and that stated in the bill is quite strong enough. It charges, that Rowther repre-seated the title to the land as unquestionable, and agreed to convey it to him with general warranty; but that, in drawing up the contract, he practised upon him a gross fraud, in. stating that he acted under a power of attorney from Cochran, and would make such deed as that authorized, whereas he had never said one word to the plaintiff about this power, nor did the plaintiff (who is illiterate and unable to read writing) know, till afterwards, that there was such an expression in it, but expected to receive his deed from the vendor himself with general warranty. The bill further states, that the defendant has tendered a deed with special warranty, under Cochran’s power of attorney, which he had rejected; that he had been sued for the land, and thought he was likely to lose it. This, I repeat, is a strong case, and if tolerably made out, would call for a decree of rescission and refunding. Let us examine the proofs. . We know that by the long established rule of equity, the answer, where responsive and positive, has the weight of two witnesses, or of one with pregnant circumstances: this is on the ground, that the plaintiff forces the defendant to answer, and that his answer, if against himself, would be conclusive. The answer before us, contradicts, positively and directly, every charge of fraud, or misrepresentation; ,and if the answer be true, this is certainly not a contract to be rescinded. The written contract has two subscribing witnesses. If any body could tell us truly, what the contract was, and whether truly set down in the written articles, it would seem that these are the men ; persons to whom the parties themselves have given credit, by calling upon them to subscribe as witnesses. These witnesses disprove the allegations of the bill, and prove the truth of the ^answer. [Here the judge stated the evidence of W. Lowther and Perine.] I refer to this evidence, particularly, because these subscribing witnesses are the only persons who tell us one word about the agreement. No testimony has been taken to discredit them; and unless there be something in the matter or manner of their evidence shewing the contrary, we must take them for good men and true. It was said, that their stories did not agree; that they contradict one another. It does not seem to me that there is any conflict. Where witnesses have combined to tell a made up story, they generally agree to a word: but where two persons are called to speak to a transaction of some, standing, and each remembers for himself, we find, in nine cases out of ten, that there are differences between them; one recollects better than the other; a particular incident strikes the mind of one, with more force than the other. But these natural variances, so far from weakening the evidence, are generally considered as stamping it with the seal of truth. It is evident too, that the witnesses here had not the same opportunities. Perine was present at the beginning of the contract; Lowther, only after it was made, and nearly' reduced to, writing. It was said also, that these are witnesses to a written agreement, which their testimony cannot be received to contradict or vary. This is very true; but it is equally so, that where the agreement is ambiguous, or charged to be falsely written, parol proof may be called in to sheV what the parties meant, and whether the charge . be true. Here, the bill charges that nothing was said in the contract about a power of attorney, or a special warranty, and that this was fraudulently introduced into the agreement. It is, surely, proper to call.the subscribing witnesses to speak as to this; and this they clearly disprove. The agreement too, standing by itself, does not clearly import the kind of title to be conveyed. The vendor agrees to sell and convey according to a *power of attorney, made to him, by Cochran. Now, the witnesses prove the understanding as to this, that the vendor expressly refused to make a general warranty, as he had bought only Cochran’s right, and the power of attorney enabled him to convey no more. A strong and ingenious argument was founded on the fact, that the power of attorney filed has no date, and was not admitted to record till some time after the agreement, and moreover states the land to contain 194 acres, while the agreement states it at 184 acres, as well as ascertained by the parties; thus shewing, that the power was executed after the agreement, and after that was reduced to certainty, which was uncertain at the date of the contract. This was, indeed, a clurnsj' trick, if it was intended to pass off this new power as in existence at the date of the agreement: but it is clear, that this was not so meant: for the answer refers to both powers, the first as left in the possession of Given, the second as of record in the county of Harrison, and prays that both, if they can be obtained, may be taken as part of the answer. Why the first power was not produced, we are not told. Given, if accessible at all, was equallj' so to both parties; and if the power of attorney was to make a general warranty, it would have availed the plaintiff much to shew it. But, in truth, he makes no such allegation: his point of reliance is, that by the contract, as really made, nothing was said about a power, but Lowther was himself to convey with general warranty. And • this is disproved, 1. by the answer; 2. by the written agreement; and 3. by both the witnesses to it, who prove that it was correctly read, that the power of attorney was expressly spoken of, and that Lowther refused to make any deed but as attorney, and with special warranty. To strengthen the ground of fraud and imposition, the plaintiff alleges, that he cannot read writing; but he has not proved it; on the contrary, the very manner in which he puts the question *to the witness, seems to infer the contrary. He does not ask him, 1 ‘do you know whether I can read writing?” but, “do you know, whether I am scholar enough to-transact my own business, where there are any writings required?” 'and the witness answers, that he does not think him a judge of writings of that kind, or of any other that would contain much. Now, this is quite a different thing from being unable to read. But suppose he had proved himself wholly illiterate, if the witnesses to the. agreement are not prejured (for there can be no mere mistake in the facts they state), he was fairly and fully informed of the nature of the title, and meant to purchase no more than Cochran’s title. He said, he had seen Cochran, and knew all about the title. Again ; he received a copy of the agreement, which he kept and has filed with his bill. If at the time the articles were executed, he knew nothing of the fact stated in the agreement, that Howther sold under the power, can it be imagined that he had not discovered this before he paid the purchase money? And if the agreement had really been for a deed with general warranty from Lowther himself, would he not, the moment he discovered this gross imposition, have stopped paying, and sought redress? From this view of the case, I am strongly inclined to think that the plaintiff bought only Cochran’s right, — that the deed offered him gives him what he contracted for, — and that the chancellor’s decree is right.

TUCKBR, P.

It was admitted in the argument, and rightly I think, that upon an agreement for the sale of lands, the vendor is to be considered as contracting for a general warranty, unless the contrary is expressly provided. If we confine ourselves, therefore, to the contract in this case, it is very clear, that a general warranty was contracted for, unless it could be shewn that the power of attorney referred to, confined the attorney *'in fact to a special warranty of the title, and that it was either shewn to the appellant at the time of the contract, or its contents fairly and truly stated. This power of attorney, however, never has been produced. Its contents never have been proved, nor indeed has a foundation been laid for such proof, by shewing that it has been lost or mislaid. The appellee, however, introduced two witnesses to prove, that it was agreed between Rucker and himself, that he was only to make a deed with special warranty. But if the contract is to be interpreted as binding Dowther to a general warranty, this parol testimony is in direct conflict with the written article, and is therefore inadmissible. I am therefore of opinion, that the decree is erroneous in dissolving the injunction, Lowther having failed to comply with his contract, bj procuring a deed with general warranty from Cochran. It is manifest, moreover, from the power of attorney executed by Cochran, since the contract, that Dowtlier cannot now, as attorney in fact, execute such a deed as Rucker is entitled to by the articles; and the land having been recovered by superiour title, such a deed would, in truth, seem to be fruitless. What, then, should be done? A rescission of the contract would seem to be indicated, as it can not be specifically executed. But in that event Rucker must have a decree for the purchase money. Against whom? By the contract, he was to pay it to Bowther for Cochran ; and although he says, he did not understand that he was contracting with Bowther only as Cochran’s attorney, yet, as it was his own folly, not to read the instrument if he could, or not to demand that it should be read, and not to ask advice if he could not understand it, he must be held to its contents. It is proved, indeed, that the deed was read to him; and, moreover, it is not proved that he could not read it himself. He must, therefore, be considered as contracting with Cochran, his payments must be considered as having *been made to Cochran, and his recovery of the purchase money may, and indeed must, be against him, if Bow-ther has paid it over. But though Cochran was made a party by the bill, yet no process appears to have been served on him, and he is certainly not before the court. Upon this state of the case, I think the decree should be reversed, the injunction reinstated, and the cause sent back, with a view to bring Cochran before the court, in order to enable it to make a proper decree between all the parties.

The other judges concurred with the president. Decree reversed, injunction reinstated, and cause remanded.  