
    Johnson v. Pryor.
    [ Concealment. — Rescission. — Lien for Purchase Money. — Substitution.]
    This was a bill in equity, which stated that Downs had a tract of land in Stewart County which Jackson wished to purchase, and, applying to Downs, found that he had given a deed for it to Jones, to indemnify him against the payment of $160 which he had been surety for in a bond to Haggard. Jackson agreed with Downs to give bond for the purchase money to Johnson, who should receive $160 to be paid to Haggard, the rest for Downs; and Downs gave a bond for title to Jackson. A judgment had been rendered against Downs at the instance of Johnson and wife, which was then enjoined; but the injunction was afterwards dissolved, and execution issued, and the sheriff sold these lands more than a year after the judgment, unless the time when the injunction depended should be discounted. * After this, Denson, the sheriff, and Pryor, who was the purchaser at the execution sale for $39, went together to the house of Jackson, who then lived in Davidson County, 60 miles from the place where they resided in Stewart County, and Pryor offered to sell the land to him, stating that his title must undoubtedly be good, referring to Denson for a confirmation of his statement, who confirmed the same accordingly. Denson also drew the assignment on the bond which Jackson gave to Jones, Pryor having paid for it $160 to Jones, and obtained an assignment the day before, the sale. Pryor sued Jackson on this bond, and a compromise was talked of; and some of the witnesses swore that Pryor agreed to give a bond for title, with warranty ; that a day was appointed to make it, the parties met, and Jackson gave his bond for $1,100, and paid $100, and took in a receipt which Denson had given to Pryor, certifying that he had purchased and paid for the land at that sale. Upon this latter bond a suit was commenced by Pryor, and he obtained a negro fellow from Johnson, and a bill of sale was given, attested by Denson. Afterwards, at another time, a writing was obtained from Johnson, with his signature thereto, stating that he was only to have the sheriff’s certificate, and not a deed with warranty. This was in the handwriting of Denson. And one witness swore that Pryor told him Denson was in partnership with him in the sale of the lands, and that his money paid for the purchase. The counsel on both sides argued lengthily in favor of their respective clients, for two days.
   Per CüRiam.

If Pryor, when he sold the land to Johnson, knew * of a fact which rendered his title invalid, and yet concealed that fact from Johnson, the sale is void ; for equity requires of him a full disclosure of everything prejudicial to the title which he knows of. And if it be true that Denson, the sheriff, and Pryor were in partnership in this sale, that rendered the title absolutely void, by the act of 1805, ch. 31; and, indeed, it would be void by the rules of the common law, without the aid of that statute. Now is it a fact that they were in partnership, and did conceal that fact when Pryor sold to Johnson ? There is but one witness who deposes to it, but his testimony is confirmed by strong circumstances. The assignment on the bond the day before the sale is in the handwriting of Denson. He went 60 miles with Pryor, to assist in the sale to Jackson. He attested the bill of sale for the negro. He drew the written acknowledgment which Jackson signed, stating the effect of the bargain. He did not take all this pains for nothing ; he was interested. And as the witness says — and as to the concealment there is no doubt, for they both stated to Jackson that the title which Pryor had was an undoubted title. It is of no consequence whether he agreed to give a warranty deed to Jackson or not. The contract is void because of this concealment and misrepresentation.

As to the bond given to Jones, and assigned to Pryor after it became payable, it is no better in the hands of Pryor than in the hands of Jones. He could not have recovered upon it, because given for a consideration which failed; for the lands sold by Downs were incumbered with a judgment, which afterwards caused them to be sold by a second sale made on the judgment of Johnson and wife, at which Vance purchased and hath recovered the lands.

The injunction issued against the judgment upon the bond for $1,100 must be made perpetual. The bill of sale must be given up to be canceled. The * $100 paid when the bond for $1,100 was executed must be repaid ; and also the $105 paid in part of the bond. And Pryor must be enjoined from proceeding upon the bond assigned to him by Jones against Johnson in any way whatever, though he is left at liberty to proceed upon the assignment against Jones, if he think proper.

See, as to concealment, White v. Cox, 3 Hay, 79, and note sub. fin. As to rescission, and lien for purchase money, Newnan v. Maclin, 5 Hay. 241, and note sub. fin. As to substitution, Jobe v. O’Brien, 2 Hum. 34; Stipe v. Stipe, 2 Head, 169. See King’s Digest, 2235, 2737, 2757, 2768, 2949, 10,849.  