
    *Crawford v. M’Donald.
    Thursday, March 24, 1808.
    Assignment without Recourse — Liability of Assignor. —An agreement for the conveyance of certain lands was assigned “without recourse,” accompanied by a delivery of a paper purporting to be a grant, together with certificates as to the quality and goodness of the title: these papers proved to be forgeries: but the assignor was held not to be liable, there being no proof of fraud, or of knowledge of fraud, on his part.
    On an appeal from a decree of the Superior Court of Chancery for the Staunton District, dismissing a bill filed by the appellant against the appellee.
    
      On the 15th of March, 1797, one Joseph Tribble entered into an agreement, under seal, with the appellee M’Donald, whereby, in consideration of 200 dollars paid him, he acknowledged to have bargained and sold to the said M’Donald one moiety of a tract of military land, in Kentucky, containing 800 acres, and agreed to convey to him the other moiety at his election within two years, on his paying the like sum. At the same time Tribble delivered to him a writing purporting to be a grant of the land, from the proper authority to a certain Joseph Brock, together with certificates as to its quality and the goodness of the title.
    On the 3d of April, 1798, M’Donald, in consideration of 400 dollars, assigned his interest in the aforesaid agreement to Crawford, in the following words indorsed thereon: “I assign the within obligation, with the benefits arising therefrom, to the Rev. Edward Crawford, of Washington County and State of Virginia, being for value received, without recourse. Witness my hand and seal, this third day of April, one thousand seven hundred and ninety-eight. John M’Donald.” (Seal.)
    Two penal bills, for 200 dollars each, were executed by Crawford to M’Donald, as the price agreed to be paid him.
    Judgment having been obtained on one of those bills, Crawford filed his bill, praying an injunction ; alleging that the grant for the land was forged, as well as the certificates in relation thereto; stating that he had reason to suspect that M’Donald was apprised of the fraud at the time of the agreement; and suggesting, though not very distinctly, *that he was bound beyond the terms of the writing between them.
    The defendant, M’Donald, in his answer, denying all fraud, or knowledge of fraud on his part, at the time of the agreement, stated that the proposition to purchase came from Crawford himself, who, after having examined all of the papers, was perfectly satisfied as to the goodness of the title, expressed a wish to take the bargain “oil’ his hands,” and manifested great solicitude to become the owner of the land. He further stated, that it was expressly agreed between them, that he was not to be liable in any event; that Crawford was to take the papers as he saw them, and that the words “without recourse” were introduced into the assignment to exonerate him from all responsibility.
    Several depositions were taken on both sides. The grant with the certificates annexed were clearly proved to have been forgeries : but there was no evidence that M’Donald knew or suspected any fraud ; nor did it appear that he was to be liable in any event. On the contrary, some of the witnesses proved it to have been the understanding of the parties that the words “without recourse” in the assignment, were sufficient to release M’Donald from any future claim in consequence of it, and prevented the necessity of a special agreement in writing to that effect, as was desired by him.
    The Chancellor, on a hearing, dismissed the bill; and Crawford appealed to this Court.
    Call, for the appellant.
    The only question arising in this case, is, what is the effect of the words ‘without recourse, ’ ’ in the assignment on the title-papers?
    The papers are proved to have been forgeries; and the inquiry is, whether those words are to be so understood, that Crawford was to take the land running the risk of prior titles, or whether he was to guarantee the validity of the papers.
    *Wickham, for the appellee.
    Admitting the case to rest on the sole question on which Mr. Call has placed it, the appellee is entitled to succeed. But if a doubt exist on that point, there is another clearly for him.
    Under the agreement, M’Donald was entitled to a conveyance for one half the land immediately, and to the other half, at his election, by paying a stipulated sum within a certain period. It turned out, however, that the grant was forged. If Tribble were a party to the fraud, he was clearly liable to M’Donald: if not, M’Donald was entitled to an action, because Tribble had undertaken to convey land to which he had no title. M’Donald having this agreement, assigned it to Crawford. Let us suppose that the words “without recourse,” had not been inserted in the assignment ; M’Donald would not have been liable in the first instance. What would have been the extent of his liability? Hot to make good the land ; but such damages as might have been recovered of Tribble, if he were unable to pay.
    Call, in reply.
    The difference is this: Crawford meant to buy Kentucky land, and not a bond for damages. All that he meant was to take upon himself the risk of prior claims.
    When a bond is assigned “without recourse,” all that is understood by it, is, that the assignor means to be exempt from all recourse, if the obligor prove insufficient ; but if the bond be forged, he would be liable, because money had been paid by the assignee for a thing upon which no recovery could be had.
    It is fair to presume, that both Crawford and M’Donald treated as if those were genuine papers. If so, what is the consequence? According to a known rule of equity, where both parties treat relative to the quality of a thing which does not exist, both are under a delusion, and neither are bound. Prom this view of the case, Crawford’s bond ought to be delivered up to be can-celled.
   ^Saturday, March 26. The Judges delivered their opinions.

JUDGE TUCKER.

One Joseph Tribble, by an instrument under his hand and seal, acknowledged himself to have bargained and sold to John M’Donald, the appellee, a tract of land containing 800 acres, lying on the head of Builaloe Creek, in Logan County, Kentucky, for which he acknowledged to> have received two hundred dollars. There is no further description of the land. M’Donald afterwards, by an indorsement, assigned that instrument, (which he calls an obligation,) with the benefits arising therefrom to the appellant, being for value received from him without recourse. Tribble, at the time of the bargain with M’Donald, delivered him a patent purporting to be a grant to one Joseph Brock for the same quantity of land on the head of Buifaloe Dick Creek; but neither shewed nor delivered any conveyance from Brock to Tribble, or any agreement respecting it. This patent was delivered at the time of the assignment by M’Donald to Crawford, who at the same time executed two notes to M’Donald for 200 dollars each, as the price of the land. On these, suits have been brought and judgments obtained at law. The appellant obtained an injunction to the judgments, on the ground that the patent was a forgery. M’Donald denies his knowledge that it was so, as also all fraud ; and insists that Crawford took the agreement without recourse to him in any event.

It is obvious, from this state of the case, that M’Donald did not receive from Trib.ble or shew Crawford any title or claim whatsoever to the lands mentioned in the pretended patent; the forgery of the patent was therefore a remote question: the taking M’Donald’s assignment of Tribble’s agreement without recourse, shews he was to run all hazards as to the title to the lands. I therefore think the decree dismissing his bill ought to be affirmed.

*JUDGES ROANE and DEEMING were also in favour of affirming the decree.

By the whole Court, (absent JUDGE LYONS,) the decree of the Superior Court of Chancery affirmed.  