
    Thomas Hardeman et al. vs. James Cowan.
    It is a well established general rule, that where a purchaser has been put in possession, he cannot afterwards acquire a title and set it up in opposition to the vendor; if he extinguish an incumbrance, or buy in an outstanding title, all he can ask or require is, the repayment of the money he has so laid out.
    
      And this rule applies, whether the purchase of the incumbrance he by the vendee or his wife; there is such an identity between them, that what under such circumstances cannot be done by the husband, cannot be done by the wife; to permit the wife to purchase when the husband is forbidden, would he a mere evasion of the rule.
    H. bought of C. a tract of land in this state for $3,600, in November, 1841 ; there were then judgments against C. for about $1,000 ; and it was part of the contract of sale that H. should pay by the first of January, 1842, $600 towards these judgments, and the remainder of the purchase-money in three equal annual instalments, from March 1, 1842, when C. was to make H. a deed; Ii. was put, at the time of sale, in possession of the land; and C. left this state for Tennessee, where he lived ; 'early in December, 1841, the land was sold under two of the judgments against C. at different times, and bought by L. EL for $375; L. El. was the brother of EL’s wife, and bought for her benefit and for her, advancing his own money for the purchase, but buying exclusively for his sister; EL paid the $600 at the stipulated time, and C. made him a deed which EL refused to receive on the ground that C. could not make him a title, by reason of the previous sale to L. EC. Held, that the purchase by L. IE. was in reality a purchase by the wife of H. ; that H.’s wife could not set up her title thus acquired against the vendor of her husband; and that the land was subject to the payment óf the residue of the purchase-money due C. after the repayment to L. IE. of the money advanced by him.
    A note for a sum certain, payable at a day certain, in cotton, at a fixed price, becomes absolute for the payment of money upon the failure to deliver the cotton at the day ; such a note is different from one payable in bank notes.
    Appeal from the district chancery court held at Carrollton; Hon. Henry Dickinson, vice-chancellor.
    Thomas Hardeman, on the third of December, 1842, filed his bill, in which he states, on the ninth of November, 1841, a written agreement was made between himself and James Cowan for the sale by the latter to him of a tract of land in Yalabusha county; the purchase-money was $3,600; of which, by the terms of sale, Hardeman was to pay $600 on certain judgments then in force in the circuit court of Yalabusha county against Cowan, by the first of January, 1842; the residue to be paid in three equal annual instalments, the first falling due on the first of March, A. D. 1843; — Cowan, on his part, to convey the land by his general warrantee deed, on the first of March, A. D. 1S42; Hardeman was to execute his three notes for the purchase money, which were to be payable in cotton at ten cents per pound, and to be secured by personal security or mortgage at the option of Hardeman. The complainant charges that he fully and literally complied with this contract on his part, and on the twenty-seventh of December, 1841, paid $600 on a judgement of Armour, Lake & Morton against Cowan, recovered in the circuit court of Yalabusha county ; that on the eighteenth of February, 1840, George A. Thompson sued out a writ of attachment against James Cowan, which writ was levied on the twentieth of February, 1840, by the sheriff of Yalabusha county, on the same land, which was afterwards sold to complainant; on the eighteenth of May, 1840, judgment was rendered against Cowan for the sum of $143; and on the eighth of July, 1840, execution issued on this judgment, and was stayed by order of plaintiff’s attorney; on the next execution the valuation law was claimed, and the sale postponed in consequence until November 23, 1841, when the plaintiff, by his attorney, sued out a writ of vendi. expo., under which the land was sold to J. Lock Hardeman on the third of January, 1842, for $213.50; that in the same court, W. Whitaker obtained judgment against Cowan on the nineteenth day of May, 1840, for $123; a fi. fa. issued, and was levied on the land in controversy on the ninth of October, 1840, the benefit of the valuation law claimed, and in consequence no sale; on the fourth of December, 1841, the plaintiff by attorney sued out a vendi. expo., and the land was sold to J. Lock Hardeman on the seventh of February, 1842, for $182. The sheriff conveyed this land by deed to J. Lock Hardeman, the purchaser; the deeds were exhibited with the bill.
    The bill then charges, that the vendee has on his part fully and entirely complied with all the conditions and terms of the sale according to the intent and effect of the contract, but that Cowan has wholly failed to perform or offer to perform on his part; and is not able now to comply with the contract, J. Lock Hardeman having purchased all of the land under judgments and executions against Cowan, which were liens on the land long before the sale to complainant; and the legal title is now in the purchaser; and that Cowan is insolvent, and a nonresident.
    The complainant filed an amended and supplemental bill, in which he states that he knew of the existence of these judgments; and that Cowan represented that he was able and would pay all of them, except the sum of six hundred dollars to be paid by Hardeman; and agreed to release the land from the incumbrance.
    Complainant also told Cowan that if he left without removing these liens, his creditors would sell the property; that in half an hour after the contract was signed, Hardeman left for the lower part of this state; and when he returned he was informed by George A. Thompson, one of the creditors of Cowan, that the land would be sold on the third of January, 1842, which was the first information he had that fi. fas. had issued. He charges that the pretence that J. Lock Hardeman purchased with his funds, directly or indirectly obtained from him, is false, but that J. Lock bought with his own funds; he denies the pretence and charge of combination; charges that no deed was offered or tendered to him by Cowan, and that it is false that the land was sold at his suggestion, or by his contrivance; but states, the land was sold against his desire, and that it is false that J. Lock Hardeman has conveyed these lands to him or to his wife, or that he is bound to do so.
    Cowan’s answer states, that it is true he represented to complainant that he was able to pay off the incumbrances; that he tendered a deed in strict compliance with the contract, and when he sent down the deed he was prepared to have discharged these liens, but to his surprise learned that the land had been sold ; he charges that the sale was brought about by the contrivance of complainant, to cheat and defraud him; states that J. Lock Hardeman refused to make any arrangement with him, but referred him to complainant; he files letters of J. Lock Hardeman, as exhibits to his answer, which are as follows, viz.:
    
      “ To Mr. Thomas Hardeman, Oakuchukuma, Yalabusha Co., Mississippi:
    “Arrow Root, 29th May, 1843.
    “Dear Thomas: — Mr. James Cowan, the former owner of the lands upon which you live, has called upon me while here to attend to some other business, and has requested me to write to you relative to the above lands. I have related to him all the circumstances under which I became the purchaser, and the purpose for which I hold it, to wit, the benefit of my sister, your wife; and that I have made a power of attorney to dispose of the same, and transfer the title to any whom you may designate. Mr. Cowan thinks that as the lands are held for the benefit of your family, and that he has not, in the sale at which I became the purchaser, a full compensation, you should make ■him some further compensation ; declaring that he is perfectly willing to have all your matters and difficulties settled upon a ■fair and liberal basis. This, it would seem to me, is what every man of honor ought only to desire; I therefore call your attention to a review of all the circumstances of the case, and request you to do for me, as my agent, that which may seem consistent with sound principle and liberality, and not inconsistent with the proper interest of my sister, your wife. Mr. Cowan’s deportment while here has been gentlemanly, and his propositions all fair and open, and ought to be met on our part in like fairness. This is surely the best way to settle all difficulties among all men. Very truly yours,
    J. Lock HaRdeman.”
    “To James Cowan, Esq., Mt. Holy Oke, Tennessee:
    Arrow Root, 12th August, 1843.
    “James Cowan, Esq. Dear Sir:- — -I am in receipt of your letter dated 5th July, and take the first opportunity to reply to it. I pass at once to the main subject of your communication, and notice that you call upon me to deny, reiterate or explain the subject and tenor of an open letter which I forwarded to Thomas Hardeman by your hands. In the first place, permit me to say that as the letter in question was an open one, you had a right to its contents either by copy or original, which, if you have not kept, I have no doubt can be procured, and my signature to the same •would sufficiently bind me.In my first letter to you on the subject, I truly set forth the whole grounds of the case.In my open letter I requested my friend, the husband of my sister, to review the whole transaction between you and himself, and to do what his conscience would dictate to be just between man and man. All this seemed to accord with your wishes. In my private letter, mailed a few days afterwards, the same tenor and substance were repeated, and closed with my leaving the whole matter at issue in the hands where I found it. There is but one thing more that could be done by me while I profess to square my conduct by right; and that is, to pay out of my private purse, and without recourse upon any person or thing, whatever loss or damage you have or may sustain by my interference in this matter, that you might or would not have sustained had I not interfered. Thus far I hold myself morally bound, when my mind is satisfied that I have been the means of heaping burthens upon others. But if I have only been the instrument in the hands of others, to do what was pre-resolved upon, and others’ means ready, why, I have just as much moral guilt'as the bridge upon neutral ground, that carries over with equal safety the armies of friends and foes. I now indulge the hope that my position and meaning are sufficiently understood, to make this close our correspondence upon a subject in which I have never considered myself as principal.
    Yery respectfully,
    J. Lock Haudeman.”
    The answer of Cowan further insists that Hardeman was in possession under his contract of sale; that he was still in possession, and had not been evicted; that he was not entitled to a rescission; all he could claim was repayment of what had been paid to take up the incumbrances ; and that the purchase' of J. Lock Hardeman was for the benefit of the complainant, or his wife.
    Cowan also filed a cross-bill against Thomas Hardeman and wife and J. Lock Hardeman, for a specific performance of the contract of sale; in this bill he states the contract — the judgment against him, and that several hundred dollars were due after the payment of the six hundred by Thomas Hardeman; states that he made a deed, which he tenders with his bill, and prays that Hardeman may be required to give his notes according to his contract; he states that he sent the deed to Harde-man before the 1st of March, 1842, with funds to discharge the judgments, but to his surprise found the land had been sold ; that Hardeman refused to accept the deed, alleging the land had been sold. He alleges that the sale was out of the ordinary course of sheriffs’ sales; that sheriffs usually delayed until the return term of the writ, which would have been in May, after said sale; he charges that the sale was brought about by Har-deman, for the purpose of defrauding him and preventing him from performing his contract; that the sale would not have occurred until March, 1842, if Thomas Hardeman had not brought it about; that the land was bought at the sale for the use and benefit of Thomas Hardeman, and with his means; the land was purchased by J. Lock Hardeman, who is the brother: of Thomas Hardeman’s wife, and that he gave Thomas Harde-man a power of attorney to sell it to whom he pleased, and that the land was conveyed to Jerusha, wife of Thomas Hardeman, under this power of attorney. And the cross-bill interrogates the parties as to these facts.
    Thomas Hardeman and his wife, in their answer to the cross-bill, admit that there were several hundred dollars in judgments against Cowan, more than he, Hardeman, was to pay; but denies that Cowan sent any person with means to pay these judgments ; they admit, that one M. Hays came to Hardeman’s house, and said he had a deed, but he presumed it was unnecessary to tender it; that Hays said Cowan had no means to pay the judgments. In answer to the charge of surprise at the sale of the land, they say Cowan could have expected nothing else ; that the land had been levied on twelve months before, and he told Cowan the creditors were complaining in consequence of the delay, and if he left without paying, the land would be sold as soon as the law would permit.
    
      They deny the charge of combination and fraud; deny that the sale was brought about, induced, or expedited by Thomas Hardeman, either directly or indirectly; deny that the land was purchased for Thomas Hardeman’s use and bought in with his means; deny that they have refunded the money bid, or that they ever will do so. Admit J. Lock Hardeman bought the land, but deny that he gave Thomas Hardeman a power of attorney, as charged; and state that John Hairston, of Yalabu-sha county, is the agent and attorney of J. Lock Hardeman.
    J. Lock Hardeman, in his answer, states, that in the latter part of the year 1841, he had unfinished business in Mississippi, where he once resided, and about the 31st of December, 1842, visited his relations in Yalabusha county; that on the evening of his arrival at Thomas Hardeman’s, who had married his only sister, he heard something said about the loan of money which had been made to his sister to enable her to purchase-the house they occupied, then about to be sold, and this was the first information he had on the subject; that he had nothing more to do with the matter until the day of sale, when, considering the friendly purpose of the loan of money to his sister, he stepped forward and bought the property himself at the sale. These circumstances were explained to Cowan in conversation ; and that Cowan could not mistake the expression of his letter, “ that he was but the instrument in the hands of others to do what had been preresolved upon;” that he advanced his means to aid his sister, whose husband’s affairs were then much embarrassed. He states that he informed Cowan how his means had been brought into requisition, and he became the purchaser, and thereby an instrument in the hands of his sister; he denies that the money used in the purchase was, in whole or in part, the means of Thomas Hardeman, or that he has ever refunded or offered to refund it, or that any other person has done so. He states he will convey to any one whom his sister may desire through her next friend without undue influence, whenever she may wish to change the relationship existing between them, and hence the reference to the power of attorney in one of his letters; he denies that he ever colluded with any one to cheat complainant, nor has he been procured to act the part he has acted at the instance or procurement- of anyone; but that he freely and voluntarily offered to buy the land, desiring no profit other than the gratification of aiding his sister. He will allow her to sell for her own benefit, but in that case he will require payment of the money paid by him for the land, unless his sister should desire to invest it in a more desirable home, the title to be in his name.
    Exceptions being taken to his answer, and sustained, he replied further, that he never did appoint Thomas Hardeman attorney in fact as charged; admits he was the instrument of his sister, who had pre-resolved to do what he did, and that it was the means of John Hairston that were ready for his sister when he advanced his own ; that he objected that .a third person should do an act of kindness for his sister which should more properly be done by her brother; that he purchased with his own means, having no hope of gain, and has therefore written and spoken of himself as a third person in the transaction.
    Exceptions were taken and sustained to the answer of Thomas-Hardeman and wife, and in further reply they say, J. Lock Hardeman never gave Thomas Hardeman a power of attorney in reference to this land; that J. Lock Hardeman acted solely for the benefit of Lucretia, his sister; and if the instrument was in the hands of any one, it was of Lucretia alone; that she had pre-resolved to do what her brother did do, and the means of John Hairston were ready to buy the land for her benefit.
    E. S. Fisher, Esq., a witness for Hardeman, states that he was attorney in the case of George A. Thompson against James Cowan, in Yalabusha court; that the venditioni exponas, issued some time about November or December, 1841, at his instance; that his attention was called to the subject by Thompson, the plaintiff. That Thomas Hardeman never spoke to him on the subject.
    John Hairston, also for Hardeman, states, he loaned Mrs. Lucretia Hardeman about four hundred dollars to buy the land; it was at Thomas Hardeman’s house; Mrs L. Hardeman and J. Lock Hardeman were present, and the money was handed back to him. He was at the sheriff's sale: did not see any effort at the sale to prevent any person from buying, or to aid Mrs. Hardeman, J. Lock Hardeman, or any other person.
    Hillary Tolbert, the sheriff, whose deposition was taken by Hardeman, states that the phtries venditioni exponas, in the case of George N. Thompson against Jaip.es Cowan, came into his hands, and he was ordered by Mr. E. S. Fisher to make the money forthwith; that all the writs before referred to came into his hands; that they were issued about the usual time after court; that he was always in the habit of making the money as soon as practicable, especially after the valuation law had been claimed; that he did not hold up executions until the return day. He saw James Cowan in Coffeeville in November, 1841, and had a conversation with him in reference to the judgments and executions against him ; and he informed Cowan that he intended to sell so soon as the executions were put in his hands, more especially as the benefit of the valuation law had been taken. He knows of no agency whatever that Thomas Hardeman had in the issuance of these writs; they came into his office in the usual way; Thomas Hardeman was not at home when the writs issued, and did not return home until a few days before the sale. The first conversation he had with Thomas Hardeman, the latter appeared very angry, and said it •was strange the land should be sold so soon; that he told him the executions had come to his hands, and that he did not consider it his duty to go to see him about Cowan’s business; that Hardbman requested him to postpone the sale, which he would not do, and told Hardeman nothing but a full payment of the executions would prevent a sale on the day advertised. Har-deman again requested him to postpone the sale; he refused to do so, and told Hardeman that he had informed Cowan that he would sell so soon as the executions came to his hands.
    An account was taken exhibiting the amount in the original contract due to Cowan.
    The vice-chancellor, on this state of pleading and proof, dismissed the original bill, and on the cross bill of Cowan decreed a specific performance and sale of the land, and perpetual injunction against J. Lock Hardeman, from ever setting up his titles as acquired at the sheriff’s sale.
    The defendants appealed.
    
      Sheppard, for appellant.
    1. The contract of sale was executory; the vendor was in default and now unable to perform ; and there is an outstanding title for all the land under which the holder is making claim ; this entitles the vendee, though his vendor has been guilty of no fraud, to a rescission. Parham v. Randolph, 4 How. (Mi.) Rep. 452; 2 John. Ch. R. 519; Vance v. Heirs of House, 5 B. Monr.'537. Cowan is insolvent and a non-resident.
    2. Incumbrances existed on the land, which the vendor, to induce the purchase, represented that he was able to and would remove and discharge; this he failed to do, and the vendee has a right to rescind.
    3. In reply to these positions, it is said, 1. That Thomas Hardeman brought about the sale. 2. That J. Lock Hardeman bought with Mrs. Hardeman’s money, and is a trustee for his wife. This is new matter, and must be proved • there is not only no proof of it, but the proof is directly the reverse. There was therefore no foundation for the decree. Lewis v. Woods, 4 How. (Mi.) R. 86; Vail v. Nelson, 4 Rand. 478.
    4. The notes are payable in cotton at ten cents the pound, and the chancellor’s decree is for the full amount due in money.
    
      G. W. H. Marr, on the same side,
    contended, that the contract should be rescinded, 1. Because Cowan was not able to make title on the day he covenanted to do so ; and this inability was occasioned by his own laches and in violation of his agreement to pay the residue of the judgments, while Hardeman in all points strictly complied with his part of the agreement. 2 Sto. Eq. 6 ; 3 S. & M. 683.
    2. Hardeman has virtually been evicted ; a sheriff’s sale and transfer of the title to the vendee at that sale is an eviction; Hardeman now holds as tenant of the sheriff’s vendee, and not under the contract with Cowan.
    
      3. There is no proof to sustain the allegations of fraud set up in the cross bill of Cowan; it must fall to the ground for want of proof to sustain it, and thus presents no obstacle to the bill for rescission.
    4. It is immaterial upon what ground J. Lock Hardeman advanced the money for his sister, or by what title he holds the lands; it is sufficient that the title is not in Cowan ; he cannot convey, and cannot therefore obtain a decree for specific performance.
    
      E. S. Fisher, for appellee,
    Contended, 1. That a wife could not acquire a title to land which would conflict with a previous right of possession or title by her husband. If she borrowed the money, it was the husband’s debt, not her’s; and thus the purchase enured to him, not her. Chit, on Con. 161, 177.
    2. Cowan committed no fraud on Hardeman; he did not conceal the judgments, and Hardeman therefore cannot be relieved against them. Freeman’s Chan. Rep. 276, and cases cited. The agreement recited the judgments, and Hardeman cannot set up the parol promise of Cowan to pay the residue, as being part of the contract, for 1, parol contracts are merged in written ones; and 2, a contract cannot rest partly in parol and partly in writing. 1 John. Ch. Rep. 273, 429 ; 3 Rand. 529; 1 Car. Law R. 263; 1 Dali. 426 ; 4 Ibid. 430 ; 3 Serg. & Rawle, 609; 8 • Wheat. 174. The risk of the judgments Hardeman took upon himself. 6 Monr. 230; 2 Pirt. Dig. 500, sec. 179.
    3. Cowan only bound himself to make “a good warranty deed; ” this related only to the legal form, and not to the goodness of the title. 16 John. R. 267.
    4. Hardeman was bound to return possession of the land to Cowan ; he cannot retain possession or deliver possession to the sheriff’s vendee and resist payment of the purchase-money ; he must take his chance of getting possession in an action against Cowan. 1 Litt. 13; 2 Pirt. Dig. 486, sec. 79; Ibid. 490, sec. 128 ; 3 Mon. 275 ; 3 J. J. Marsh. 430.
    5. Complainant can only claim compensation for the amount paid at the sheriff’s sale by credit on his contract. Freem. Ch. R. 333, and cases cited.
    6. It is incredible that Thomas Hardeman did not suggest to his wife the plan of buying in the property; this plan was arranged before J. Lock Hardeman’s connection with the matter ; it was a concerted scheme, and must have had its origin with Thomas Hardeman ; she buys a right in conflict with a previous right of her husband ; this is conclusive that the husband was the originator of the scheme.
    
      7. The failure of the complainant to deliver the cotton according to contract, converted it into a money contract.
    
      Waul, on same side.
    The contract should be rescinded.
    1. Because the representations of Cowan operated as a fraud on Hardeman, and were the inducement to the contract; and when a party makes material representations in the sale of land which induce the purchase, he must make them good, and that whether he intentionally deceives or not. Sugden on Yendors, 542; Miss. U. B. v. Wilkinson, 3 S. & M. 78.
    
    
      2. Cowan, at the day appointed, was unable to make a title; at the time of the decree he was still unable, and it appearing that he was a non-resident and insolvent, furnishes such facts as will always be sufficient to base a decree' of rescission. Fletcher v. Wilson, 1 S. & M. Ch. 389.
    3. The failure to comply on the part of,Cowan arose from his own fault. The land was sold against the desire and entreaties of Thomas Hardeman, and with the full knowledge of Cowan.
    -4. The sale was made openly by the sheriff, and a third party, J. Lock Hardeman, bought the land ; there is no proof or testimony to iffipeach his title under the sheriff’s deed, and in the absence of testimony direct or circumstantial, the chancellor has not only decreed that J. Lock Hardeman’s title is void, but has decreed that the money he paid from his own funds shall go to the credit of Thomas Hardeman’s notes, taking his land and his money from him, and requiring him to act as trustee for the benefit of Cowan.
   Mr. Justice Clayton

delivered the opinion of the court.

In November, 1841, the complainant, Thomas Hardeman-, purchased of James Cowan a tract of land in Yalabusha county, for the sum of $3600, and it was agreed that Cowan should mate title by deed, with general warranty, by 1st of March, 1842. At the time of the sale, there were judgments against Cowan in the circuit court of that county, for about $1000; and it was a part of the contract that Hardeman should pay $600 towards satisfaction of these judgments, by the 1st of January, 1842, and should pay the balance in three equal annual instalments, from said 1st of March, for which said Hardeman was to execute his notes payable in cotton, at ten cents per pound, to be delivered at Grenada. Cowan resided in the state of Tennessee, and returned thither soon after making the contract; Hardeman at the time resided on the land. Early in December, 1841, two writs of venditioni exponas were issued upon two of the judgments against Cowan, under which the land was twice sold by the sheriff, once on the 3d, and once on the 7th of January, 1842, for the aggregate sum of $375.50, to J. Lock Hardeman, the brother of the wife of Thomas Harde-man, and the land conveyed by the sheriff to him. Thomas Hardeman paid the $600 at the stipulated time. During the month of January, 1842, Cowan, without any knowledge of the sheriff’s sale, made a deed, in compliance with his agreement, which he sent to Thomas Hardeman, who refused to receive it, because of the sales previously made by the sheriff. Cowan also states that he sent money at that time to pay off the judgments under which the sales were made; but this is denied, and there is no proof. It is probably not very material.

Thomas Hardeman filed a bill against Cowan, for a rescission of the contract, on the ground of inability on the part of Cowan to convey and make title, according to his agreement. The answer asserts that the sale by the sheriff was brought about by Hardeman, in the absence of Cowan, to defraud him; that Harde-man was in possession, under his contract of sale; that he was still in possession, and had not been evicted. That he was not entitled to a rescission; that all he could claim was repayment of what had been paid to take up the incumbrances; and that the purchase of J. Lock Hardeman was for the benefit of the complainant, or of his wife.

Cowan also filed a cross-bill for a specific performance, against Thomas Hardeman and wife, for whose use the purchases were alleged to have been made, and against the purchaser, J. Lock Hardeman. The answer of Thomas Hardeman and wife denies every allegation of fraud, and claims the land for Mrs. Hardeman. In his answer J. Lock Hardeman details his whole connection with the transaction, and sets forth all the circumstances, with becoming candor and fairness. It will be necessary to go into these with some minuteness, as the cause must turn upon those facts, in connection with his letters, made exhibits by Cowan.

In one of his letters he says : u I have only been the instrument in the hands of others, to do what was pre-resolved upon.” “I hope my meaning is now sufficiently understood, to make this close our correspondence upon a subject, in which 1 have never considered myself as principal.” In his answer he says, that on the day of sale, “ he stepped forward and assumed the place of his sister, and himself became the purchaser. That he became the purchaser, and thereby an instrument in the hands of his sister, to convey to any one whom she may designate.” “ That he freely and voluntarily offered to buy the land, and advance the means, claiming no profit in the matter, other than the satisfaction of rendering aid to an affectionate sister. Allowing her to sell for her own benefit, but in that case requiring payment of the cash advanced for the purchase of the land.” “ That he was but an instrument of his sister, in securing her a house, from which her husband was about to be ejected by law; and he has therefore written and spoken of himself, as but a second person in the transaction.”

All this goes very clearly to show the situation of J. Lock Hardeman. He did not purchase for himself, and the only interest which in truth he has, is the protection of the purchase-money he advanced. The real purchaser, therefore, was Mrs. Hardeman, the wife of the complainant.

It is a well established general rule, that where a purchaser has been put in possession, he cannot afterwards acquire a title and set it up in opposition to the vendor. If he extinguish an incumbrance, or buy in an outstanding title, all he can ask or require, is the repayment of the money he has so laid out. 1 Sug. on Vendors, 642; Meigs’s R. 184; Meadows v. Hopkins, 4 Monroe, 297, 298; 2 Johns. Ch. 33. See Ayres v. Mitchell, 3 S. & M. 694.

It is said “the reason of 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 contract, ought to exist between man and man, and prevent undue advantage from information acquired by means of such contract. Having recognized the title by the purchase, the purchaser shall do nothing to the prejudice thereof, so long as the relation continues.” Meigs, 185.

This reason is equally operative, whether the purchase of the incumbrance be, by the vendee or his wife. There is such an identity between them, that what under such circumstances cannot be done by the husband, cannot be done by the wife. The privity of estate between the vendor and the vendee, is what prevents the purchase. The-wife in some degree partakes of this relation; to permit her to purchase, when the husband is forbidden, would be a mere evasion of the rule. The rule is a general one, and should not be frittered away by refinements and exceptions.

So much of the decree as dimisses the bill of the complainant for a rescission of the contract, is affirmed. We think that on his cross-bill Cowan is entitled to a specific performance. The amount paid by J. Lock Hardeman for the land, must stand as a charge upon it, and must be repaid him with all interest. The notes, although payable in cotton, became absolute for the payment of money, upon the failure to deliver the cotton at the day. Rankin v. Sanders, 6 How. 58. A note of that description differs from one payable in bank notes.

The decree, in all these particulars, is correct, and the same is affirmed, and the cause remanded, that it may be carried into effect.  