
    Henry Anderson et al. use of William W. Humphries, vs. Edwin G. Hill.
    Advertisements of the sale of town lots, in which the prospective and present advantages of the town are set forth, and vague general representations in relation to the value &e. of the lots by the sellers, if untrue, will not amount to fraud as to those who purchase lots at the sale ; because they relate to matters open to the examination of all persons, and about which each could form his own conclusions.
    At a public sale of town lots, in the town of Aberdeen, a particular lot was reserved from sale at the terminus and depot of a projected railroad, and the adjoining lots were sold at.the dale as front lots, the depot lot lying between them and the river; and in consequence of being regarded as front
    - business lots, they brought a much higher price at the sale than they would otherwise have done; afterwards the railroad was abandoned, and the intended depot lot sold out by the trustees of the town, in small lots, on which the purchasers erected cotton sheds, which cut off the adjoining lots from all direct communication with the river, and made them back instead' of front lots, by which they were greatly depreciated in value, and were scarcely worth one twentieth of their original price; held, in an action to recover the price at the original sale, of one of these lots, that the vendee, under the circumstances, could have obtained a rescission of his contract in a court of equity, and could also make the same defence in the suit at law, for fraud in the sale to him.
    While a vendee of real estate in possession, eannot, when sued at law for the purchase money, defend on the ground of failure of consideration from defect of title; yet he may so defend for fraud in tho contract of sale, apart from and independent of any defect of title.
    Where no exceptions were taken to charges of the court at the time they were given, but a bill of exceptions setting forth the testimony and charges, recites, “ and thereupon the jury returned'a verdict for the defendant, to all of which the plaintiff excepts;” held, that the charges could not be reviewed; the exceptions taken after verdict, amounted to nothing more than an exception to the refusal to grant a new trial.
    
      In error from the circuit court of Monroe county; Hon. Francis M. Rogers, judge.
    Henry Anderson and George Wightman, survivors of Osborne D. Herndon, for the use of William W. Humphries, sued Edwin G. Hill, on his bond for $250, dated 13th of October, 1836, due two years after date.
    The trial took place in November, 1846, and resulted in a verdict for defendant. The plaintiffs moved for a new trial, because the verdict was against the law and the evidence. The motion was overruled, when the plaintiffs embodied the evidence and charges of the court as follows, viz:
    Two publications made before the 9th of October, 1836, in the Columbus Democrat, by the authority of the trustees of the stockholders of Aberdeen, were read to the jury, which set forth thé advantages of said town on account of health, situation, &e., and among other things that the railroad from Aberdeen to Pon-totoc will be commenced in the ensuing spring, and also the day of sale advertised. B. C. Barnett, as a witness for defendant, testified that he was present in Oct. 1836, at the sale of lots in Aberdeen, by said trustees, and that, at said sale, R. G. Hale became the purchaser of lot No. 858, at $500. After said purchase, said Hale, together with David Hale and the defendant, executed their two writings obligatory each for $250, payable respectively at twelve and twenty-four months to said trustees, and identified' the writing sued on in this case as the one then executed, payable twenty-four months after date. Said witness further proved, that said lot No. 858 lay in the lower part of said town, immediately west of a lot of ground which had been laid out by said trustees as a railroad depot- or terminus of the Aberdeen and Pontotoc railroad; and that said lot so reserved as a depot lay immediately upon the Tombigbee river,, and between said lot No. 858 and the river; and that said lot No. 858, and others similarly situated with reference to said depot and the river, were regarded at said sale as front business lots, and were, consequently, enhanced in price. Said witness further proved, that on the first day of the sale, the crier employed by said trustees to cry off the lots stated publicly that $20,000 would be appropriated by the said trustees (the said trustees being present) to the erection of public buildings, but that not one dollar had been so applied. That since said purchase, the lot had been several times overflown, which lessened its value, and that it had not been overflown between February, 1836, when the purchaser came to Aberdeen, and the time of said purchase; that steamboats had ascended the river above town previous to February, 1836, but not between said month and the sale. The representations made by the trustees had an influence upon witness’s mind, who purchased lots at said sale. The railroad was never constructed, and in 1844 the trustees sold out into small lots the ground reserved for the depot, and it has been and is now covered with cotton sheds ; that, on account of selling said lot and building said sheds, the communication with the river in front of lot No. 858 has been cut off; that, in order to get from the lot to the river, a person would have to go some distance above and around the depot lot, or some two or three hundred yards below. While the depot lot remained vacant, lot No. 858 was a front lot, possessing advantages as such, and now it is a back lot; and this difference in its situation has lessened its value. A charter had been obtained for the railroad and bank; witness became a purchaser to the amount of several thousand dollars at the sale, and that he and the trustees made a compromise in relation to the notes.
    Another witness, Mr. White, corroborated the testimony of the above witness, and further stated that two lots'in the same block were recently sold, and both together brought about sixty-one or sixty-two dollars, and that he purchased one recently a little south of lot No. 858 for twenty-one dollars. The only thing done in constructing said railroad was throwing up a spade-full óf dust and drinking a bottle of champaigne.
    Stephen Cocke testified, that he had never seen Aberdeen overflowed, but that frequently before October, 1836, he had seen the water as high for miles below Aberdeen as he had seen it since that time; that he had recently visited the most of the state, and he regarded Aberdeen as the most flourishing and business place in the northern or eastern part of the state, and improving more rapidly than any town in the state.
    Thomas Coopwood stated, as an attorney at law, some time after the sale of said lot No. 858, he brought suit and collected the amount and interest, in 1838, of the note payable at twelve months, and that it was previous to the sale of the depot ground into small lots ; and, further, that Aberdeen is a flourishing and rapidly improving town.
    The jury found for the defendant, and judgment was so entered accordingly, and the plaintiffs sued out this writ of error.
    
      Adam G. Smith, for plaintiff in error,
    Cited Anderson v. Burnett, 5 How. 165; Bell v. Henderson, 6 How. 313, 314; 11 Wend. 487 ; 8 lb. 85; 1 Hill, N. Y. Rep. 189-192; 19 Pick. 405; 2 Kent, Comm. 471; 2 Johns. Ch. R. 519; 5 How. 387, 460; Halls v. Thompson, 1 S. & M. 443; 1 Ala. Rep. 354; 1 Stew. 490.
    
      Good and Burnett, for defendants in error,
    Cited Comyn on Cont. 58; Pasley v. Freeman, 3 Term Rep. 51; 1 lb. 12; McLenon v. 'Taylor & Massie, 1 Cranch, Rep. 530; Kelly’s Heirs v. Bradford, 3 Bibb, 318; Grantland v. Wight, 2 Munf. 179; Joliffe v. Hite, 1 Call, 301; 2 Peere-Wms. 154, 170; 10 Yerg. Rep. 206; 3 lb. 178; Niles v. And-erson, 5 How. R. 365; Hurd v. Smith, lb. 562; Ross v. Lane, 3 S. & M. 695; Fletcher v. Rapp, 1 S. & M. Ch. R. 374; Lewis v. McLemore, 10 Yerg. Rep. 206; Brewer v. Harris, 2 S. &. M., 84; Ellis v. Martin, lb. 187; Donelson v. Weakley and others, 3 Yerg. Rep. 178; Rice v. Digno-witty, 4 S. & M. 57; 2 How. 219; 4 lb. 338; 1 S. & M. 3S1; 5 lb. 21.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of debt brought upon a writing obligatpry, given for the purchase of a town lot, at the public sale of lots, in the town of Aberdeen. The defence is fraud and failure of con'sideration. In many respects the case is like that of Anderson v. Burnett, 5 How. 165, and Bell v. Henderson, 6 Ib. 311, which grew out of sales of lots in the same town. The advertisements, and the vague general representations, were there held not to amount to fraud, because they related to matters open to the examination of all persons, and about which they could form their own conclusions.

But there is one feature in this case different from the others. It is in proof that a lot, extending to the Tombigbee River was, on the day of sale, reserved as a depot, for the railroad, which was to have its terminus at that point, and that the lot 858, for which this note was given, adjoined the depot lot, which was situated between it and the river. This lot 858, and others, similarly situated, were regarded' at the sale as front business lots, and consequently brought higher prices than they would, otherwise have done. Afterwards the railroad was abandoned, and the lot which had been reserved for the depot was sold out by the trustees in small lots, which were covered at the time of the trial with cotton sheds, which cut off the lot 858 from all direct communication with the river, and made it a back instead of a front lot. It had, consequently, greatly depreciated in value, and was worth scarcely one twentieth of the original price. We think this would have justified and required a rescission of the contract, by a court of equity. Donaldson v. Weakley, 3 Yerg. Rep. 178. The very object for which the lot was purchased was defeated by the act of the plaintiff. There is no railroad nor depot, and the lot is shut out from the river, so that it is no longer regarded as a business lot, according to the testimony.

But it is said, the party has not been evicted or disturbed in his possession of the lot, and cannot, therefore, defend at law. That is certainly the rule, where the defence attempted is a failure of consideration from defect of title. Hoy et al. v. Taliaferro, 8 S. & M. 740. But where the defence set up is fraud in the contract of sale, apart froin any defect of title, and independent of it, there the defence may be made in an action upon the instrument. Barringer v. Nesbit, 1 S. & M. 22; Brewer v. Harris, 2 Ib. 84; Ellis v. Martin, Ib. 187.

The jury found a verdict for the defendant. There were no exceptions to the charges of the court, at the time they were given; but after the motion for a new trial was overruled, the testimony and charges of the court were set out, and the bill of exceptions says, “ and therefore the jury returned a verdict for the defendant; to all of which the plaintiff excepts.” This did not amount to any thing more than an exception to the refusal to grant a new trial, because not reserved or taken until after the verdict. Smedes’s Dig., Bill of Excep. sec. 4. The instructions cannot therefore be reviewed. j

We think the verdict was in accordance with the testimony, and with the law as herein stated, and therefore, direct that it be affirmed.

Judgment affirmed.  