
    Jamison Liddell vs. Ahthur B. Sims.
    A bill for the specific performance of a contract, and one for the rescission of a contract, do not stand on the same ground in equity; in the former a decree for specific performance will generally be granted, if the applicant has not been guilty of negligence, and there has been no change of circumstances during the delay materially affecting the character or justice of the contract; while a decree for rescission will not be granted unless there has been fraud practised, or a plain and palpable mistake has occurred.
    How far time, in equity, is of the essence of a contract; or the failure of a party to comply with his contract in the time stipulated will operate in equity as a ' breach; or whether the parties, by stipulating for a particular thing to be done in a particular time, make time materia], — Qucere?
    
    Weakness of mind, short of legal incapacity, unconnected with fraud of the opposite party, will not be cause to set aside a contract; yet when combined with other circumstances, it is an important consideration, and has a material influence upon the validity of a contract.
    Where a vendor of land executes a bond to make title to the vendee on request, and receives the notes of the vendee due in one, two and three years from the sale thereof, if the vendee, when sued upon the notes for the purchase-money, at law, demand title, before a judgment is rendered on the notes, and the vendor is unable to malte it, the latter cannot recover on the notes.
    Courts hold covenants to be dependent, unless a contrary intention clearly appears; the time fixed for performance is at law deemed of the essence of the contract, and if the vendor is not ready and able to perform his part of the agreement on the day fixed, the vendee may elect to consider the contract at an end.
    L. filed hialbill to procure the rescission of a contract made with him by S., alleging that he bought of S. in November, 1837, two hundred and fifty acres of land for seven thousand five hundred dollars, payable in one, two and three years, and secured by mortgage on seven hundred and fifty acres of other land of L. That S. represented that he had a full and complete legal title, in which representation L. confided. S. gave him a title bond to make title on request, freed from all incumbrances, and to deliver possession of the land on request after the day of maturity of the first note; that S. was insolvent, had always remained in possession of the land sold, and was still in possession, and had never made title thereto, though often reguested, and at the time of sale had title to but one sixth of the land ; which want of title he fraudulently concealed from L., who was of weak mind and easily imposed on by S., his neighbor, and in whom he had confidence. The bill for rescission was filed in 1842, L. averring that he had then recently delected the defects in title. The answer denied all fraud or untrue representations, or that L. was of weak mind ; set up that ever since the first note was due, S. had been ready to make a deed with proper covenants ; that he had then the full title; before he sold to L. he had procured drafts for title from his co-heirs, in whom jointly with himself the title was; but these had been lost, and he had recently taken conveyances from them; one of these was dated in August, 1842, the others in March, 1843, the answer being filed in May, 1843. The proof showed that S. had always retained possession of the land, cultivating it, and was insolvent; that one sixth of the land was subject to a statutory mortgage for the purchase-money due by S., and that L. was a weak, ignorant man, easily imposed on; and that the land had greatly decreased in value. Held, on this pleading and proof, that the contract of sale must be rescinded, the mortgage cancelled, and suit at law commenced on one of the notes perpetually enjoined; and L., for payments made by him, to have a lien on that part of the land to which S. had title.
    To a bill by a vendee seeking the rescission of the contract of sale, on the ground of want of title in the vendor, and the fraudulent concealment thereof, the answer of the vendor that he had procured the titles before he sold, hut had lost the memorandums of his purchase, and had neglected to take a conveyance, not being responsive to the bill, is not evidence, and, unless proved, establishes nothing.
    
      On appeal from the superior court of chancery: Hon. Robert H. Buckner, chancellor.
    Jamison Liddell, in his bill, charges that on the 24th day of November, 1837, having confidence in the veracity and fair dealing of the defendant, Arthur B. Sims, who was his neighbor, and being desirous to purchase the tract of land on which Sims then lived, who avowed a wish to sell the same, and urged him to the purchase, representing said land was his, tljat he had right to sell it, and was invested with a full and legal title to the same. Complainant, confiding in these representations, agreed to purchase it, containing two hundred and fifty acres, at the price of thirty dollars per acre; and to secure the payment thereof, complainant then executed to Sims three promissory notes, for $2500 each, payable on the first days of Jánuary, 1839, 1840 and 1841; and as a further security thereof, Sims required of complainant a mortgage upon the tract of land on which complainant resided, containing seven hundred and fifty acres ; and confiding in the defendant, he executed a mortgage in conformity to defendant’s requisition; conditioned to become absolute on failure to pay said notes as they respectively matured, and which was duly recorded. On the same date of the mortgage, defendant executed to complainant a bond for the conveyance of the legal title to the two hundred and fifty acres, which is exhibited with the bill, and is in these words:
    “ Know all men by these presents, that I, Arthur B. Sims, of Jefferson county, Mississippi, am held and firmly bound unto Jamison Liddell, in the just and full sum of seven thousand five hundred dollars, to be paid to the said Liddell, bis certain attorney, executors, administrators or assigns, to which payment well and truly to be made, I bind myself, my heirs, executors and administrators, by these presents, sealed with my seal, dated the 30th day of November, A. D. 1837.
    “ The condition of this obligation is such, that whereas the said Sims has this day contracted to sell, and hath sold to said Liddell a certain tract of land in said .county,-lying on the North Fork, commonly called Chubby’s Fork of Cole’s Creek, containing two hundred and fifty acres more or less ; bounded on the north, east, and west by lands of Isaac Dunbar, and on the south by said Chubby’s Creek, which separates it from lands of said Liddell, granted by the Spanish government to Hunt & Freeman, and by them conveyed to Thomas Sims, saving and reserving to said Arthur B. Sims out of said tract, one half of one acre to inclose the grave yard on said tract of land. Now if the said Arthur B. Sims do, and shall upon the request of the said Liddell, his heirs or assigns, convey and assure, or cause to be well and sufficiently conveyed and assured unto the said Liddell, his heirs or assigns, or to such other person or persons as he the said Liddell shall nominate and appoint, and to such uses as he shall direct, the above tract of land now in the possession of said Sims, by such assurances or conveyances in law as by the said Liddell, his heirs or assigns, or his or their counsel learned in the law, shall be reasonably advised and required, freed and discharged from all incumbrances whatsoever; and shall upon the request of the said Liddell, his heirs or assigns, after the first day of January, eighteen hundred and thirty-nine (until which time the said Sims is to keep possession of the premises .above described), deliver and give to the said Liddell, his heirs or assigns, full and perfect possession of said premises, then this obligation shall be null and void; otherwise shall remain in full force. A. B. Sims, [seal.] ”
    That complainant is an unlearned man, wholly ignorant of law, that in making said contract he relied wholly upon the representations of Sims, who was counselled and advised by his attorney, learned in the law, and who, for purposes then unknown to complainant, and wholly unexplained to him at the time, drew the obligation or contract for said land by and with the advice and consent of Sims. That on the 27th May, 1839, he paid to Sims the sum of $1116, which was to have been credited upon the foot of the notes.
    That Sims had ever since the date of said purchase, remained in the sole occupancy of the land, wasting and destroying its timber, clearing and using it as his own, without asking the consent of complainant, and bad never offered the possession of said land, or a conveyance for the legal title thereof, although thereto requested; by reason of which complainant had not made the arrangements for the payment of the notes; and because defendant continued to appropriate the issues and profits of said land to his own use and as his own, and refused the possession.
    That the profits were of the annual value of $600 or more, which Sims never accounted for, or proposed or offered to account for; which conduct he insists operated a rescission and disaffirmance of said contract on the part of Sims, and which he was willing so to regard on his part.
    That on the 21st of April, 1842, Sims instituted his action at law in the circuit court of Jefferson county against complainant, on all of said notes, and would prosecute it to judgment unless restrained by this court; that since the institution of said suit, he has made every reasonable exertion to adjust and compromise said matter, and had offered to give up to Sims besides the money he had already paid him, the two hundred and fifty acres of land he bought of him, and the seven hundred and fifty of equal quality to the other, which he had mortgaged to him, if Sims would give him up his notes, so much had the lands depreciated in value; but Sims refused the offer, and finding Sims disposed wholly to ruin him, he was for the first time put upon inquiry as to the right and title of Sims to the land, and an investigation of the written terms of the bond, which had resulted in the discovery for the first time, that Sims had no legal title to the land.
    That the same was not granted by the Spanish government to Hunt & Freeman, and by them conveyed to Thomas Sims, as was fraudulently and falsely represented unto him by the defendant Sims at the time of sale; but upon investigation of the record of land titles, he had for the first time discovered that Thomas Sims never did in his lifetime have any legal title to said land; and that whatever right he had in the same, was by him devised in his last will unto his children, Rebecca, said defendant, Sarah, Hannah, Isaac and Lewis; and that at the time of the said sale, the defendant Sims was the owner of only an equitable claim to the one-sixth part of said land; that two of his said sisters were femes covert, without having conveyed to said Sims their interest in said land; that his sister Hannah, one of said devisees, intermarried in her lifetime, and had since departed this life, leaving a family of infant children, without having ever conveyed to the defendant her interest, and that defendant had it not in his power to obtain the legal title of said land if he desired it.
    That he is now satisfied, from the conduct of Sims and subsequent developments, that at the time of making said sale, he, for the purpose of cheating and defrauding complainant, suppressed and concealed from him his (defendant’s) knowledge of the defects of his title to said land, and falsely and fraudulently represented to complainant that he had a legal title to sell the same, well knowing at the same time that he had no such right, and that he cunningly, artfully, and fraudulently contrived the phraseology of said bond, whereby to compel complainant to take assurances for title, and that a default of any one payment should make the mortgage absolute; knowing at the time that he had not any title to the land sold, and that complainant was ignorant of the legal effect of the terms 'used in said bond ; that he was without the assistance of counsel, and confided in the good opinion he then entertained toward Sims, that he would not take any advantage of him.
    He charges again more particularly the exclusive occupancy of said land by Sims, the receipt of its profits, and a refusal to give him possession of it, or to release the mortgage on complainant’s land, although thereto requested, for the purpose of mortgaging it to raise funds to pay defendant said notes; that Sims is insolvent.
    The bill prays for an injunction against the suit at law, a rescission of the contract, cancelment of the notes, that the mortgage be cancelled and delivered up, and the defendant be required to accept said bond which is tendered, and for restitution of the sura of $1116, with interest, and that a lien upon Sims’s right in said land be retained for its payment.
    
      The bill was filed on the 18th day of May, 1842.
    The answer of Sims, filed in May, 1843, admits the sale of the land in November, 1837, at the price of $30 per acre; the execution of the three notes, of the mortgage to secure their payment, and of the bond from him to complainant as recited in the bill. He denies the allegations of the bill as to his taking advantage of complainant, and says the bond was drawn up according to contract. He denies the allegation of the want of learning and ignorance of the complainant; denies that he made any representation which was not strictly true, and denies that any advantage was taken, or attempted to be taken of the complainant ; denies the payment of any money on said promissory notes, but admits that about the month of May, 1839, he received from complainant a note of Ross O. Quin, which, as well as he recollects, amounted at that time with interest to the sum of eleven hundred and sixteen dollars or thereabouts, and agreed to credit the same on the first of complainant’s notes, which he avers he has done. He admits that he is still residing on said two hundred and fifty acre tract of land, but says he has been at all times, and still is ready to deliver it to complainant whenever he shall desire it; denies that complainant has ever demanded possession, or that he ever refused to deliver peaceable possession. Denies that he has committed waste, but has enhanced its value by various improvements, and repairs, &c., and by the erection of small out-houses ; denies that complainant has ever asked him for a title, or that he has ever refused one, but avers that he has been at all times since the first day of January, 1839, and is still ready to execute a deed of conveyance with proper covenants. He admits that he has instituted suit at law upon the notes; denies that said tract has been worth $600 per annum, as charged in the bill, but inasmuch as since the 1st January, 1839, he has been a tenant at will of complainant; he has always been ready and offered to credit the notes with a fair sum, for use and occupation of the land, provided this court should be of opinion the complainant was entitled to any. He denies that complainant ever proposed a compromise; says that the allegations of said bill of defect, and want of title to-said land in defendant are wholly untrue, and he exhibits his title as follows :
    1. A copy of a grant from the Spanish government, to Don Juan Murdoch, dated August 4, 1794.
    2. A copy of a paper purporting to be a deed from John Murdoch to Abijah Hunt and William Gordon Forman, for sundry tracts of land, dated July 19, 1802.
    3. A paper purporting to be a copy of a certificate of confirmation to Hunt and Forman by the United States commissioners, for four hundred arpens of land, on Coles Creek, in Jefferson county, granted by the Spanish government to John Murdoch.
    4. A paper purporting to be a copy of an agreement of Abijah Hunt with Thomas Sims, to convey him a tract of land lying on Chubbey’s Fork of Coles Creek, originally granted to John Murdoch by Spanish patent for two hundred and fifty acres, be the same more or less, dated 3d January, 1806.
    5. A paper purporting to be a copy of a deed from Joseph Forman, administrator of the estate of William Gordon Forman, to David Hunt, for that tract of land on which Thomas Sims resides, on the north fork of Coles Creek, containing two hundred and fifty acres, being the southern part of a tract of four hundred arpens of land, originally granted by the Spanish government to John Murdoch, &c., bearing date 23d Nov. 1816.
    6. A paper purporting to be a copy of a deed from David Hunt to Thomas Sims, for the land above described, dated 17th March, 1817.
    7. A copy of a paper purporting to be a deed from Isaac A. Sims, Lewis H. Sims, and Eliza his wife, Jacob K. Hill, and Rebecca G. Hill, his wife, Elisha Greenler, and Sarah his wife, to the defendant, for four-sixths undivided part of said tract of land, bearing date the 17th day of November, 1842.
    8. A paper purporting to be a deed from John H. Coller, administrator of Hannah 0. Quin, to the defendant, for one-sixth undivided part of said tract of land, bearing date the 18th day of March, 1843.
    The originals of the first six exhibits defendant alleges are not in his power to produce, not being in his possession ; of the last two he says he has the possession, and is ready to produce them.
    That Thomas Sims, to whom David Hunt conveyed said tract of land, left at his death six children, and heirs and devi-sees, to wit, defendant, Isaac A. Sims, Lewis H. Sims, Rebecca G. Hill, wife of Jacob K. Hill, Sarah A. Greenler, wife of Elisha Greenler, and Hannah 0. Quin, now deceased, (and at the time of her death widow of RossO. Quin), to whom said tract of land descended, and was devised. That some two years before .the sale to complainant, he had purchased from his co-heirs all their interest in said two hundred and fifty acres of land, and held their drafts for the purchase of the same; but neglected to procure from them a conveyance of their interest, but has since obtained conveyance, and submits that he has thus shown conclusively that complainant’s allegations of defect of title are wholly untrue.
    He alleges that Thomas Sims, the father of defendant, held the quiet and undisturbed possession of said tract of land, under the title set up as aforesaid from 3d January, 1806, until his death in 1818, from which time defendant, and those under whom he claims., have held like quiet and undisturbed possession of said land. He denies that he was ever requested by complainant to release his mortgage, as charged ; denies all intention or wish to harass, &c.; denies all allegations of fraud, combination and.confederacy, and of having taken or attempting to take any advantage whatever of complainant. He prays to be dismissed with his costs, &c.
    Thomas H. Stuart proved that he was acquainted with the tract of land in controversy, that it adjoined him, that it had been occupied and cultivated by defendant from theidate of sale to complainant, until the time of taking his deposition; that all of said land was cleared, except about thirty-five acres ; that defendant has continued to use and improve the same apparently as his own ever since 1839. He proved the annual value of the land; that he was acquainted with Hannah O. Quin, sister of defendant, that she died some five or six years since ; was survived by her husband Ross O. Quin, who died one or two years after her, and that she left a family of children who are yet minors ; that Sims had cut timber to repair the fences, &c., and the land was so exhausted there was scarcely enough left to keep it in repair; that said land had been materially injured since 1S39, by culture and washing into gullies, not resulting from injudicious culture, but from the nature of the soil and situation of the land. That Sims is reputed insolvent: that he has been acquainted with complainant fifteen years, and knew him to be a very ignorant man, very easily imposed upon and of very inferior capacity; has resided neighbor to him all the time; knew him intimately from frequent dealing with him ; that defendant still uses said plantation for all plantation purposes, has cleared up some deadened land upon the same, and speaks of the plantation as his own, or as any one else would occupying it.
    John H. Coller, the administrator of Hannah 0. Quin, proves that he knew of no debts against the estate of Hannah O. Quin at the time he obtained letters of administration on said estate; that he obtained administration at the request of the defendant, Arthur B. Sims, and of H. B. Harrison, the guardian of her children, and he obtained the order to sell the land at their request; the defendant Sims had never paid him for it.
    John H. Duncan proved the heirs of Thomas Sims to be as stated by defendant in his answer, and the defendant to be insolvent; that Hannah0. Quin left three children, born during her marriage with Ross 0. Quin, and that said children are still minors.
    James B. Truly proved that Thomas Sims lived on the land in controversy prior to the year 1810, and resided there until his death, claiming it as his own, and that the defendant has resided on it ever since.
    The complainant introduced as evidence in his behalf, a transcript of all the orders, steps and proceedings of the probate court of Jefferson county, appointing Coller administrator of Hannah 0. Quin ; they show that all of the steps were taken after the filing of the bill by the complainant.
    On motion of the defendant, the cause was referred by the chancellor to Robert Hughes, Esq., clerk, to report upon the title, who reported that the defendant could make no title as to one-sixth part of said land.
    At the June term, 1845, the cause was heard, and the chancellor decreed that the complainant’s bill be dismissed, without prejudice to the bringing of another bill, and that complainant pay the costs to be taxed; from which decree this appeal is prosecuted.
    
      Sanders and Price, for appellant,
    contended,
    1. That the pleadings and proof showed that Liddell had been deceived and defrauded into the purchase; and was on that account entitled to a rescission of the contract; on this point they reviewed and commented on the testimony, and cited Newland on Contracts, 351; Sugden on Vendors, 6, 7; 2 Sto. Equity, 6, § 695, and authorities cited.
    2. That at the time of sale the defendant Sims had not such title as to enable him to make the sale to Liddell. 2 Blackst. Com. 442; Sug. Tend. 260 ; Perldns on Conveyancing, 30, § 65.
    3. That a complete title was not yet in Sims; and even if it-were, under the facts of this case, the court would not compel Liddell to' receive it. On this point, the pleadings and facts were reviewed, and the following authorities cited : — 1 Story’s Eq. 218, 219; 1 Ves. Rep. 95, 96 ; 5 John. R. 81 ; 12 Ibid. 131, 191; 3 Hayw. 141; 5 East, 198, 204; 2 Bibb, 275 ; Griffin v. Depeu, 3 A. K. Marsh. 179; Kennedy v. Woolfolk, 3 Hayw. 197, 499 ; Marsh. 169 ; 5 Litt. 194; 5 John. 88 ; 11 Ibid. 529 ; 1 Term R. 258 ; 1 Desau. 281; 3 Bibb, 317; 2 Story’s Eq. 88, § 778; Cabens v. Gordon, 1 Hill, .56; 1 A. K. Marsh. 434; 4 Cranch, 137; 3 Mun. 550; 1 Dana, 422; 2 Ves. 59; Sug. Ven. 210; Steele v. Swann, Lit. Sel. Ca. 155.
    
      H. T, Ellett and John B. Coleman, for appellee.
    I. A vendor, not having a title at the date of the contract, shall have a specific performance if he procures a title before the report. 3 Bibb, 366, 566 ; 3 Cowen, 445; 1 Paige, 244; 7 Ibid. 78 ; Mortlock v. Butter, 10 Ves, 292; 5 Ves. 189, and note a ; 
      6 Ibid. 646, and note at 655 ; 5 Oranch, 262; 8 Paige, 473; 4 Bro. C. C. 87, 884.
    The same rule will, under the same circumstances, defeat a bill filed to rescind.
    2. It seems well settled, that a sale of land by one not in possession, though having title at the time, is not valid. Jackson v. Demont, 9 Johns. 55 ; Bledsoe v. Doe, ex dem. Little, 4 How, 13.
    But even such a sale is good as between the parties, and is only void as to strangers. Den v. Geige>\ 4 Halst. 234; Cro. Eliz. 445 ; 9 Johns. 55; Bro. Ab. Tit. Feoff. 332, pi. 1; 2 Johns. 41. /
    A sale of land by a person in possession, must be valid unless it is forbidden by some principle of law, and counsel are not aware of any principle that would declare a deed to be void because the grantor did not have a good title at the time he made it. Cro. Con. 110; 4 Halst. 235.
    The mere possession is of itself a legal interest, which will pass by the deed, and may be recovered in ejectment. Jackson v. Town, 4 Cow. 602; 9 Cowen, 84; 4 How. 23 ; Jackson v. Winslow, 9 Cow. 13; McCrackin v. Wright, 14 Johns. 193.
    3. A vendor, not having title at the date of the contract, is entitled in equity to compel a specific performance by the vendee, if he procures and can make a title at the time of the master’s report, or even at the time of the final decree. Lang-ford v. Pitt, 2 P. Wms. 631; Wynn v. Morgan, 7 Ves. 202; Jenkins v. Hiles, 6 Ves. 646, 655 ; Mortlock v. Bailer, 10 Ves. 315 ; Rose v. Calland, 5 Ves. 186 ; Hepburn v. Auld, 5 Cranch, 262, 275 ; Seymour v. Delancey, 3 Cow. 445, 519, 535 ; 3 Bibb, 366, 566; 1 Paige, 244 ; 7 Ibid. 78; 8 Ibid. 473 ; 3 Monroe, 304-313.
    The same rule is applicable to bills filed for a rescission of the contract. Davidson v. Moss, 5 How. 673.
   Mr. Justice Clayton

delivered the opinion of the court.

This is a bill filed to rescind a contract for the sale of a tract of land, and to enjoin a suit at law upon the notes given for the purchase-money. It charges that in November, 1837, the complainant purchased of the defendant a tract of two hundred and fifty acres of land for the sum of ¡$7,500, and gave a mortgage upon another tract of seven hundred and fifty acres to secure the payment of the purchase-money. It charges that Sims, the vendor, represented that he had a full and complete legal title to the land, and that complainant confided in his representation. That complainant gave his three promissory notes for ¡$2,500 each, the first payable 1st January, 1839, and the others in one and two years afterwards. That Sims gave his. bond for title in which he agreed to make, upon request, sufficient conveyances and assurances of said land, freed and discharged from all incumbrances whatsoever, and to deliver possession upon request after the 1st of January, 1839, until which time he was at liberty to retain possession. That Sims has always remained in possession of the land, and still holds it, and has never made title thereto, although requested. States that Sims is insolvent, that at the time of the sale he had title to only one-sixth of the land, and fraudulently suppressed and concealed the want of title. That complainant is a man of weak mind; that he relied on Sims, who was his neighbor, and believed he would not take advantage of him. The bill was filed in May, 1842, and avers that the defects in the title had then been recently discovered.

The answer of Sims denies all fraud ; denies the making of any untrue representation.; denies that complainant is a man of weak mind, and denies the taking of any advantage of him. Avers that since the 1st of January, 1839, he has at all times been ready to execute a deed with proper covenants. States that he had purchased the shares of his co-heirs before he made the sale to complainant, and had taken their draft for title, which had been lost or destroyed, but that he had not taken conveyances from them until recently, and exhibits their deeds with his answer. This answer was filed in May, 1843, and one of the deeds of his co-hejrs bears date in August, 1842, the other in March, 1843.

The evidence proves the insolvency of Sims, and that he has remained in possession of the land ever since the sale, cultivating it as his own. It also proves that the complainant is a very ignorant man, of very inferior capacity, and very easily imposed upon.

The chancellor dismissed the bill.

If this were a bill on the part of the vendor to enforce a specific performance of the contract, it would be dismissed without hesitation. The delay, the change of times and circumstances, the depreciation in the value of the land, and the inability of the vendor to make a valid title at the time agreed, and for a long period afterwards, would have clearly required the court to refuse its aid. It is not at this day to be taken as true, that time is regarded as of no moment in equity. On this point Mr. Baron Alderson, in a late case, thus stated the principle: “ A court of equity is to examine the contract, not merely as a court of law does, to ascertain what the parties have in terms expressed to be the contract, but what is in truth the real intention of the parties, and to carry that into effect. But in so doing, we must look carefully at what the parties have expressed; because, in general, they must be taken to express what they intend.” — “I do not see, therefore, why, if the parties choose to stipulate for a particular thing to be done, at a particular time, such a stipulation is not to be carried literally into effect in a court of equity. That is the real contract; the parties had a right to make it. Why then should a court of equity make a new contract, which the parties have not made?” Hipwell v. Knight, 1 Younge & Coll. 415, cited 2 Story’s Eq. 86, n.; Smith’s Heirs v. Christmas, 7 Yerg. 577; Benedict v. Lynch, 1 Johns. Ch. 379. To give a party a right to a specific performance, he must not have been guilty of negligence, and there must have been no change of circumstances during the delay materially affecting the character or justice of the contract. 1 Mad. Ch. 330; 2 Story’s Eq. 87; 7 Paige, 548. It is very clear, therefore, that equity would not decree a specific performance in favor of the vendor in this case.

The right to a rescission of the contract does not rest upon the same ground. There are many cases in which a bill and cross bill, the one for a specific performance, the other for a rescission, have both been dismissed, and the parties left to their remedies at law. In general, fraud or plain and palpable mistake, must appear to justify the rescission of a contract. 2 Rob. Prac. 191. It remains to see whether the present case falls under either of these heads.

The answer does not state that the defendant disclosed the true state of the title to the complainant; it denies the making of any false representation, or the taking of any advantage. The suppression of a material fact, in regard to a thing about which one party places confidence in the other, amounts to a fraud. The very case put in the books to illustrate the principle, is where a vendor sells an estate to which he has no title, and conSeals that fact. The very purchase implies a trust, and confidence on the part of the vendee, that no such defect exists. 1 Story’s Eq. 218. There is an implied warranty in every sale, made without explanation, that the vendor is able to do what he contracts to do. Garnett v. Macon, 6 Call, 308; S. C. 2 Brock. R. 185; Boyce v. Grundy, 3 Pet. 217.

The circumstances of the case negative the idea that the defendant disclosed to the complainant the state of the title. He took a mortgage for the purchase-money upon the residence of the complainant, and did not include the estate which he sold, and the mortgage might become absolute on failure to make the first payment, on the very day he stipulated to give possession of the land he sold. The answer is falsified by the proof in one particular, the mental capacity of the complainant. It is also falsified in another, unless the defendant considered the making of a deed, whether he had title or not, was a performance of his contract. The very fact that “ he was ready and willing ” to make such deed as a compliance with his contract, at a time when he was insolvent, and his covenants worthless, is a circumstance to prove that he wished to keep up the delusion he had created in regard to his title, by concealing its defects. No one could be presumed willing to pay a high price for land, when he knew that five-sixths of the title was outstanding, and trust to the covenants of an insolvent vendor. The proof too, is, that Sims has not paid for one-sixth part of the land, which he purchased after this bill was filed, at the sale of the administrator of Hannah O. Quin, his sister. A statutory mortgage, of course, subsists upon it for the purchase-money; hence he is not yet able to comply with his covenants to convey free from incumbrances. This is a defect which might be cured, yet it explains the frame of mind in which the answer was written, when it states that from the 1st of January, 1839, he has always been ready and willing to make a deed. ' All this goes to show, that entire reliance cannot be placed upon the answer.

The complainant had no title to five-sixths of the land, until after this bill was filed, for the assertion in the answer, that he had bought the land before he sold, but had neglected to take a conveyance, is not responsive to the bill, and is unsupported by testimony. The complainant, according to the evidence, was of inferior capacity, and easy to be imposed on. It is almost certain that no man of ordinary prudence, if he had been informed that the vendor had no title to five-sixths of the land, would have made this contract. This is another circumstance to establish the concealment.

Weakness of mind, short of legal incapacity, unconnected with fraud of the opposite party, will not be cause to set aside a contract. 1 Mad. Ch. 223. Yet when combined with other circumstances, it is an important consideration, and has a material influence upon the validity of a contract. Samuel v. Marshall, 3 Leigh.

In this case the vendor has always remained in possession of the land he sold, and has cultivated it as if it still belonged to him. The land has greatly depreciated in value.

From a view of the whole case, we are strongly impressed with the belief, that the complainant, through the concealment of the defendant, concluded the contract in ignorance of the true state of the title.

It is doubtful whether the court would do full justice to dismiss this bill, and leave the parties to settle their rights at law. At the time the vendor commenced the suit at law, upon the notes, which is enjoined in this bill, he had no title to five-sixths of the land. The filing of this bill was a request of title — steps were not taken to procure one of the titles for several months after the bill was filed, and they were not in fact obtained until some months later. The vendor, Sims, then was not prepared to comply with his covenant to make title, either when the suit was brought, or when the request was made. Courts hold, covenants to be dependent, unless a contrary intention clearly appears. The time fixed for performancejs, at law, deemed of the essence of the contract; and if the vendor is not ready and able to perform his part of the agreement on that day, the purchaser may elect to consider the contract at an end. Bank of Columbia v. Maguer, 1 Peters, 455; Stockton v. George, 7 How. 172. In this case the vendor could not recover at law, if before judgment upon the notes a title were demanded, and he were unable to make it. He must perform his part of the contract before he would be permitted to recover. But there is a mortgage given by the complainant, which the vendor might attempt to enforce in equity, independent of the suit at law. It is better, therefore, to decide the whole controversy in this suit, and thus put an end to litigation.

We think the complainant has made out a ease for rescission. He will be entitled to a lien on that part of the land to which the vendor has title, for the amount of money which he has paid under the contract. The case will be reversed and remanded, that an account may be taken of the payments so made, with interest. The contract will be rescinded, the agreement and mortgage cancelled, and the suit at law perpetually enjoined.

The decree is reversed and the cause remanded.  