
    WILLIAM B. WESTALL vs. SAMUEL AUSTIN.
    A Court of Equity will not compel a purchaser to take a title substantially defective ; but it is the privilege of the vendor to complete his title, and this he may do at any time before a decree, provided there has been no unnecessay delay.
    The purchaser will not he permitted to deprive him of his right, by forestalling him. If Tie perfects the title, he has got all he bargained for, and can ask from the vendor nothing more, than the expenses he has incurred in removing the defect.
    Cause removed from the Court of Equity of Yancy County, on affidavit of the plaintiff at the Spring Term, 1845.
    The bill is filed to rescind a contract for the purchase of a lot of land, in the town of Burnsville, in the County of Yancy, and to enjoin the collection of a sum of money due therefor. When the town of Burnsville was established, commissioners were, by the act of incorporation, appointed to lay off and sell the lots, A man, by the name of Jeremiah Boon purchased one lot, and John Blalock, another. The plaintiff alleges that the lot purchased by Blalock was in the plat of the town, numbered 24, and the one purchased by Boon. 25. The bill charges, that on the 15th day of September, 1838, the plaintiff purchased from the defendant, Austin, the lot 24 (as the lot purchased by Boon at the sale.) for the sum of $245 75, payable at different periods, and secured by notes or bonds therefor, that he took immediate possession, and has continued it ever since. At the time of the purchase, no conveyance was executed, but a bond to make one with full warranty when the purchase money was paid. And the plaintiff alleges that he has paid all the purchase money, except fifty one or two dollars, for which the defendant has obtained judgment against him, upon which an execution issued, and is now in the hands of an officer for collection. He further charges, that in the summer of 1840, he understood that Austin, the defendant, was not the owner of the lot No. 24, but that Blalock was, who was about to sell it to another person. Upon examining the plat of the town, he discovered that Blalock had purchased the lot No. 24, and Jeremiah Boon, lot No. 25, and for the purpose of securing his possession, he purchased from John Blalock his title to the said lot, for Which he gave him $60, and immediately applied to the defendant to rescind their contract, return the money he had paid, and surrender up the judgment and execution which was in the hands of a constable ; all of which, he refused, but tendered to the plaintiff a deed of conveyance fór the lot No. 24, which he declined to accept. The bill prays for an injunction against the execution mentioned and foi’ general relief.
    
      The answer, admits the sale, by the defendant, to the plaintiff, of the lot No. 24, and avers that he had a good and perfect title to it: that, whether at the sale of the lots in the town of Burnsville, John Blalock purchased that designated as No. 24, he does not know of his own knowledge, but always understood, until recently, that said lot had been purchased at the sale by one Jeremiah Boon, under whom he derives his title. At the time he sold to the plaintiff he believed, and still believes, his title to be good. Immediately after the sale by the commissioners, Boon took possession of the lot No. 24, and commenced improving it, by erecting buildings on it, and the possession has been kept up by him and those claiming under him, continually, until the summer of 1S40, when he, for the first time, heard of Blalock’s claim. He admits the existence of the Justice’s judgment, and that the plaintiff requested him to desist from its collection. Ha admits the purchase by the plaintiff from Blalock, but alleges, it was unnecessary; that he tendered to the plaintiff a good and sufficient deed before the bill was filed. The defendant has filed, as exhibits in the case, several deeds of conveyance, as exhibiting his title under Jeremiah Boon.
    The plaintiff asks the aid of the Court in two particulars — first, to enjoin the defendant from proceeding to enforce his execution against him, and secondly, to rescind the contract.
    
      N. W. Woodfin and J. H. Bryan, for the plaintiff.
    
      Francis, for the defendant.
   Nash. J.

It is very certain a Court of Equity will not compel a purchaser to take a title substantially defective, but itjs the privilege of the vendor to complete his title ; and this he may do at any time before a decree. New- land on Contracts, Ch. 12, 227, 230, provided, there has been no unnecessary delay. 2 Story’s Eq. Jur. S. 777. The purchaser will not be permitted to deprive him of this right, by forestalling him. If he perfects the title, he has got all he bargained for, and can ask from the vendor nothing more, than the expenses he has incurred in removing the defect. In this case, the plaintiff shows that his title, if at first defective, was made complete before the bill was filed. lie, therefore, has got what he bargained for, a good and sufficient title to the lot No. 24. He is not entitled to have his contract with the defendant rescinded. All that he could ask is to be reimbursed, what he paid to Blalock. But, from the view we have taken of the case, we do not think him entitled to this, as we are of opinion, that his title under the defendant was a good one. At the sale of the town lots in Burnsville, among others were those numbered 24 and 25. The plaintiff alleges that the lot 24 was purchased by John Blalock, and the defendant, that Jeremiah Boon, under whom he derives title, bought it. Two depositions are filed by the plaintiff, those of W. L. Lewis, and Jeremiah Boon. Neither of them directly asserts the fact. Mr. Lewis states, that he was present at the sale and ho thinks John Blalock was the purchaser of 24, and he thinks No. 25 was purchased by Israel Boon for Jerry Boon. He further states, that from the sale, up to the purchase of the present plaintiff, which was in 1838, Jerry Boon occupied lot No. 24 ; that he had a shop and house upon it. Jeremiah Boon, is requested to state which lot he purchased, at the sale by the commissioners. His answer is remarkable. Number 25 was what I always understood — I did not build on the lot I purchased.” He is then asked, “whose lot did you build on,” he answers, “it was number 24, and belonged to Jack Blalock.” He further states, that he never improved his own lot, but lived on, and occupied No. 24. until September 1838, Jeremiah Boon did not bid off the lot. It was bought for him by Israel Boon. Nor is there any evidence that he was present at the time. If he had been, it is likely he would have been able to state with certainty which lot he did buy. But it is very strange believing, as he professes he did, that lot 24 was purchased by Blalock, he should, evidently with the knowledge of Blalock,-have immediately taken possession of it, and erected buildings on it, and that he should have continued that possession, unquestioned by Blalock, or any one else, from the time of the sale, in 1834, up to the 15th of September 1838, the day when Austin sold to the plaintiff. Attached to these depositions, is a plat of the town of Burnsville, in which it appears that the name'of John Blalock is written on No. 24, but it is no where stated by whom this plat was made, or when, or that it was the one used by the commissioners. It therefore contributes little to the strength of the plaintiff’s claim. On behalf of the defendant two depositions are filed; those of John McEllers, and Joseph Shepherd. The former states, that he was one of the commissioners appointed to lay off the town of Burnsville, and the crier at the sale, and that he made it a rule to stand upon the lot he was selling, and that he thinks and is satisfied, that the lot No. 24, was the one purchased by Israel Boon for Jeremiah Boon. He further states, that a short time after the sale, he met wdth John Blalock in the town of Burnsville, who said he had purchased the lot Jeremiah Boon was improving, and that he had a certificate of purchase, and that he replied to him he was still under the impression that the lot below was the one he sold to him, and that the mistake was between him and the other commissioners in making out the certificate, and that Boon was at the time at work on his own lot. Mr. Shepherd, was another of the commissioners, and believes lot No. 24, was purchased by Jeremiah Boon. This is all the testimony in the case, and, limited as it is, satisfies us, that Jeremiah Boon, was the purchaser of the lot marked No. 24. It is difficult to believe, if it were not so, that Boon, without any contract with Blalock, would have improved the lot he did not buy, and that Blalock would have laid by from ’34 until October 1840, the time when he took his conveyance from the commissioners and sold to the plaintiff, nearly six years, and see Boon improve and use the lot as his own, unquestioned and undisturbed. The difficulty was created, no doubt, as suggested by the commissioner Mr. McElIers. No question is made, that whatever title to the lot in dispute was in Jeremiah Boon, was regularly vested in the defendant Austin, and has, by the deed filed by him, been conveyed to the plaintiff, who refused to receive it, not because of any defect, but because it was much mere convenient to get the lot, with its improvements, for sixty dollars, than for the. sum of $245.

Per Curiam.

Bill dismissed with costs.  