
    Thompson vs. Paul & Nance.
    On a motion to dismiss a bill for want of equity on its face, such construction should be given to the bill as will sustain rather than defeat it. If it appear that the court has no jurisdiction, or that the bill has no equity on its face, the court may propeuly dismiss it at any stage of the proceedings; but when a cáse proper for equitable relief is defectively stated, and the defendant waives his right to demur and answers, he must answer fully.
    This bill was filed in the chancery court at Nashville, by J. & D. Thompson against Nance and others. The bill charges, that J. & D. Thompson, complainants, purchased forty-seven acres of land, on Mill creek, in Davidson county, of Nance & Paul, for the sum of $1719, in three annual instalments of $573 each; that Paul & Nance executed a title bond to complainants to make them a title on the payment of the purchase money; that they had paid the two first instalments, and judgment had been recovered on the last instalment in the supreme court of Tennessee for the sum of $664 50; that an execution had been issued on the said judgment and was placed in the hands of the sheriff of Davidson county. The bill charges, that complainants “had caused search to be made of the books of the register’s office of the county of Davidson, and they are informed, and so charge the fact to be, that said Nance & Paul have no registered or legal title to said land described in the title bond executed to complainants.”
    The bill pays for an injunction, and that “if said Paul & Nance shall not be able to make to your orators a valid deed, the contract may be rescinded, and complainants allowed compensation for the improvements placed by them on the said land.”
    An injunction was granted by judge Maney on the 15th May, 1847: Paul & Nance answered; they admitted the sale as stated; the execution of a title bond; the payment of the two first instalments, and the recovery of a judgment on the last in- ■ stalment; they also stated, that “they derived their title to said land from a sale in chancery, and their title so fpr as they knew was undisputed, and they were and ever had been willing to comply with their bond.”
    To this answer the defendants excepted, because the answer did “not meet and answer the allegation in the bill, of a want of legal or registered title to the land,” and for other reasons. The clerk and master sustained the exception. Paul & Nance filed an amended answer, in which they say, “your respondents did not have a registered deed at the time of the sale, but could have obtained it at any time when called on. Respondents have a good legal title to said land, which they are ready to make to complainants on payment of the execution enjoined by them.”
    The complainants made a motion to have said amended answer taken from the files for want of signature of counsel, and names of parties, and the court having allowed amendments to be made to the answer in the above particulars, ordered the following decree to be entered: “This cause came on to be heard this 17th day of November, 1847, before the honorable T. H. Cahal, chancellor, upon bill, answer, amended answer and exhibits, which being heard by the court, it is ordered and decreed, that the bill be dismissed, and that defendants recover of the plaintiffs the stun of $664 50, with interest from the date of the judgment at law, and costs.”
    From this decree complainants appealed.
    
      R. N. Williams, for complainants.
    
      M. C. óf J. Goodlett, for defendants.
   McKinney, J.

delivered the opinion of the court.

This bill is filed to enjoin a judgment for $664 50, recovered by the defendants against the complainants, being the bal-anee of the purchase money of a tract of land purchased by the complainants from the defendants on the 22d day of February, 1840, and for which the defendants by their covenant, or bond for title of that date, obligated themselves to make or cause to be made, to the complainants, on the payment of the purchase money, a good and valid title.

The bill charges that the defendants “have no registered or legal title to the tract of land, sold to the complainants and described in the title bond executed to them.” The prayer is for an injunction and a recission of the contract of purchase, if it shall appear, the defendants are unable to make a title as stipulated in their bond. The defendants in their answer which was put in at the appearance term, say that they derive their title to said land, from a chancery sale, and that so far as they know the title is undisputed. They do not exhibit, nor do they offer to produce any title whatever, neither do they state the character of the title acquired by them at the chancery sale, if any were thus acquired. The answer was excepted to for insufficiency, and the exceptions were sustained by the clerk and master: an answer to the exceptions was put in at the same term, but being regarded as defective both in form and .substance, a motion was made by the solicitor of the complainants to take it off the file, and on the part of the defendants a motion was made to dissolve the injunction. On the hearing of the motions the chancellor, disallowed the former and permitted the answer to be amended as to the matters of form excepted to, and thereupon proceeded to make a final decree in the cause dismissing the bill for want of equity on its face and dissolving the injunction.

This proceeding, we think, was premature and contrary to the course of this court. It is true the matter constituting the equity of the bill, is inartificially stated, but the charge, we think, is fairly susceptible of the construction that the defendants, had no legal title whatever, to the tract of land, which they sold and covenanted to convey to the complainants.

It was manifestly so intended by the draftsman of the bill, and so understood by the counsel of the defendants. And having waived a demurrer, and submitted to answer, the defendants were bound to put in a full and sufficient answer, and exhibit their title in order that it might appear whether or not they were able to make such title as they had contracted and bound themselves to make to the complainants. The amended answer put in by the defendants was wholly insufficient. The complainants had the right to have it referred to the clerk and master, on the exceptions to the original answer, or perhaps to have it taken from the files, and it was the duty of the chancellor to have required the defendants to have put in a full and sufficient answer to the bill.

'The principle upon which the chancellor dismissed the bill, was misapplied in this case. If from the face of the bill, it appears the court has no jurisdiction of the case, or if it contain no matter of equity whatever, the chancellor may properly dismiss the bill on mere motion, at the appearance term or at any subsequent stage of the cause. But not so, when a case proper for equitable relief, is defectively stated in the bill. In such case, if a demurrer is waived, and a party puts in an answer, he must answer fully. Such construction will be given as will support, rather than defeat, the bill, and if necessary, leave will be given to amend.

I? the defendants have no title to the land as is substantially charged in the bill, the complainants have a clear right to disaffirm the contract of purchase, and to have it rescinded; and their right is equally clear, if such be the fact, not only to resist payment of whatever of the purchase money may remain due, but likewise to have restitution of whatever amount may have been paid. The argument of the defendant’s counsel, and the cases referred to in support of it, apply only when a deed has been executed conveying the legal title, under which the party is in possession. In such case, in the absence of fraud, there can be no relief in equity; the party will be left to his remedy at law on the covenants in his deed, if it contain such covenants; and if not the party is without remedy in either court.

The chancellor erred in dismissing the bill — the decree will be reversed, and the cause remanded to be proceeded in according to the course of a court of chancery.  