
    Supreme Court of Errors and Appeals. Nashville.
    1812.
    SEARCY v. KIRKPATRICK.
    
      \ V In Equity.
    
      S. C. I Tenn. 421.
    Where the vendee of land is in possession under a contract to convey, made by the vendor without fraud, and has never been disturbed in such possession, any better title he may acquire will enure to the benefit of the vendor; and all that the vendee can, in equity and good conscience claim, is, to be reimbursed his outlay in acquiring the better title. [Acc. S. O. 1 Tenn. 421; Moore ». Harryman, 1 Tenn. 259; Mitchell ». Barry, 4 Hay. 142; Meadows». Hopkins, Meigs, 185; Redmond®. Bowles, 5 Sn. 547; Cooke, 238.]
    This was a bill in equity, brought by Searcy against Kirkpatrick, to be relieved against a judgment at law.
    
      The bill states that, in 1784, the complainant made an entry for two hundred and twenty-eight acres of land, lying on the Cumberland River, by virtue of a military warrant, which land he afterwards sold and covenanted to convey to the defendant, Kirkpatrick; that some person fraudulently took and appropriated to their own use the warrant assigned, in consequence of which he has been unable to get a grant or convey the land to the defendant, but that he placed the defendant in possession of the land, where he has remained in peace ever since; that the defendant, having found out the situation of this title, under the Act of 1806, made an entry for this land, as an occupant, in his own name ; and that he has since brought a suit on the covenant to convey, and recovered damages to the amount of seventeen hundred dollars, besides costs.
    The bill further states that the complainant, under the Act of 1806, also made an entry of the said two hundred and twenty-eight acres of land, and is proceeding to obtain a grant, in order to enable him to perform his contract specifically. The prayer of the bill is for an injunction, and that the defendant may be compelled to accept the conveyance in lieu of the damages.
    The answer denies that the complainant has any title; admits the purchase of the land; his settlement thereon; the commencing the suit on the covenant to convey, and the entering the two hundred and twenty-eight acres as an occupant; and he insists upon his right to receive the damages he recovered, and to hold the land under his occupant claim.
    It appeared in proof, and by the admission of the parties, that the complainant made an entry for the land in 1784, as is stated in the bill; and that he re-entered the same land by another warrant, under the Act of 1806. It also appeared that the complainant and defendant had filed cross-caveats; that the defendant succeeded in his caveat, and obtained a grant for the land in controversy. It did not appear that the defendant had ever been disturbed in his possession.
    The cause was argued by Whiteside, for the complainant; and by Goohe and Haywood, for the defendant.
   White, J.

If a man, under a belief that he has a good title to a tract of land, sells 'it, and either conveys, or stipulates to convey it, putting, at the same time, the vendee in possession, and the vendee, discovering a better title in some other person, purchases it with a view to prejudice the vendor, a court of equity will view the purchase as made for the benefit of the vendor through the agency of his vendee, and will relieve the vendor from the obligation of his covenant, by paying the money, with interest, which the vendee has actually advanced in purchasing up the preferable title. This Court ought not to sanction the doctrine that a purchaser is authorized to pry into and discover defects in his own title, with a view to purchase an outstanding claim in some other person, and thus consider himself evicted when he might have enjoyed the land under the first purchase were it not for his own conduct.

In the case now before the Court the defendant has sustained no injury; he is in the peaceful occupation of the land he purchased. The complain-, ant had an entry upon which he might reasonably have supposed he could procure a grant before the time he had bound himself to convey. The difficulty of obtaining grants from North Carolina from about the year 1796 is well known ; and although the complainant could not convey the land at the time stipulated, yet this Court can relieve against time in all cases where the party has sustained no injury, or when the injury sustained can be fully and fairly compensated. In this case no injury was sustained; none would, as far as we can see, have been sustained, provided the defendant had remained quiet. The complainant could have obtained a good title under the last entry, if the defendant would have permitted him ; as he has prevented this he ought to be considered as the agent of the complainant, in procuring his grant for the land in question. But the complainant must pay him the sum he paid for the warrant, and likewise the fees he advanced to procure the grant, with interest upon the several sums from the time they were respectively advanced. Upon this being done, the judgment recovered at law must be perpetually enjoined, except as to the costs of that Court, which the complainant must pay, as well as the costs of this Court.  