To determine this it becomes necessary to look into the evidence upon this point. The first opportunity which was offered for examination of the land was some two days after the purchase was made, when Pryor landed his boat with his slaves. Making due allowance for the awkward situation in which he was then placed, with his property either to be landed or shipped further, it seems to us that a restlessness and haste were displayed and an undue credit given to the statements of mere strangers, whose motives for misrepresentations might well have been suspected, particularly Johnson, who was a drunken intruder on the land. Pryor's stay according to the evidence did not exceed two hours, in which time he held his conversation with Johnson, visited Williams and conferred with him, and devoted the balance of his time in making a very partial examination of the land purchased by himself. That the result of this examination had not the effect to induce him to abandon and repudiate his purchase is quite clear, for, so far from it, he spends a portion of his time in treaty with Williams for his lands and another portion directing and forbidding the cutting of timber upon the land purchased of Yeates. Whether therefore doubts or distrust of the imposition put upon him by Yeates, entered into and formed a part of the motive for his precipitate abandonment of the land, it is evident that he did not intend relinquishing his purchase at that time. His first letter to Yeates, (only six days after he left the lands) was designed to withdraw the claims from the hands of Yeates, and it was not only natural but necessary that he should render to Yeates some excuse or apology for thus suddenly changing his purpose. Admitting it to have been true that this back location was the leading inducement to the purchase, it is singular that when the proposition to withdraw the claims was made, he did not accompany it with an avowed repudiation of the whole contract, at least if his examination was such as to arouse suspicion that he had been imposed upon by Yeates in the representations in regard to the quality of the land. We hold it to have been his duty as well to Yeates as to himself to have taken steps within

a reasonable time to determine certainly the condition of the land and the extent of the fraud. This he neglected to do until 1840, more than two years after the contract, when he employed Maddox to make a personal examination of the land. It will not do to say that he was ignorant of the fraud; enough was developed to put a prudent man upon inquiry; nor that he was in treaty for compromise, unless there had been some indications of his ultimate intentions in case the compromise should fail. So far from this, although repeated offers were made by Pryor, to pay an additional sum to Yeates if he would relieve him from the contract, yet he in almost every instance coupled it with a promise to pay, and with an explanation and excuse for having delayed payment. Yeates had rights as well as Pryor, which should be guarded. If this contract was not to stand it was but just and fair that he should know it, that he might make other disposition of his property. Pryor was at once put upon inquiry; indeed from his own admissions convinced that a fraud had been practiced upon him, and it was his duty to have satisfied himself at an early day thereafter and to indicate his determination to Yeates. No one can doubt after reading Pryor's letters to Yeates but that he held himself bound to pay although he thought the contract a hard one under the circumstances. In view of all the facts of the case therefore, upon this specific ground of fraud, whilst we are satisfied that a fraud was practiced upon Pryor by Yeates, of which Pryor might have availed himself to set aside the contract, yet by his neglect and subsequent promises and conduct he waived this advantage, and so far as regards fraud in the description and quality of the land he is not entitled to relief.

Having thus disposed of the first allegation of fraud, we will proceed to dispose of the second: Fraud in the representation of title to the land.

It is expressly charged in the bill and admitted by the answer of Yeates, that Yeates represented to Pryor that he owned the land and would endorse the certificates of his entry so that patents could issue directly to him for the same, and the exhibits

Yeates et al. vs. Pryor.

[JANUARY attached to the bill show that Yeates so understood the contract at the time, for it is there seen that he did acknowledge certain transfers and directions to that effect before Davis Thompson, then Receiver of said land office, which, although they purported to effect that purpose, did not in fact do so; for, upon inspection thereof, it will be perceived that in fact Yeates had no power to make such transfer, and that the same in truth conveyed no title whatever to Pryor. Now when it is remembered that Pryor was there a stranger in the country, presumed to be unacquainted with such transfers and their legal effect, but which were sanctioned by an officer of the United States government who recognized and approved such transfer, when he himself, in regard to part of the lands, held adversely to Yeates, as Yeates himself admits, there is to our minds abundant proof of a most gross and premeditated fraud practiced by Yeates on Pryor with regard to the character of title he was getting, as well as the interest which Yeates had in the land at the time of the purchase. Could Pryor have supposed for one moment that he was by those transfers acquiring, as regarded at least a part of the land, not even an equitable title, is it to be presumed that he would have paid $1000, in cash and have executed his notes for $6,615 00 payable in January 1838, and 1839, thereafter? It is evident. that he would not.

But it is contended that although Yeates did misrepresent the character of title by which these lands were held, yet Pryor should not complain inasmuch as he has since purchased a perfect title, which he tenders and offers to him.

It is true that where there has been no fraud and the vendee has entered and holds peaceable possession under an executed contract of conveyance, he cannot ordinarily come into a court of equity for relief but must resort to his common law action upon his covenant or warranty of title. Abbot vs. Allen, 2 J. C. Rep. 523. Tallmage vs. Wallis, 25 Wend. 114. Miller vs. Long, 3 Marshall 336. Chesterman vs. Gardner, 5 J. Ch. Rep. 31. 6 S. & M. 345.

But it is well settled that where there is fraud whether in re

Denison vs. Mor

spect to the title or representations of the property, and that is the allegation upon which the vendee relies for a recision of the contract, a court of equity will grant relief. 1 Sug. Vend. 284. Hensley vs. Johnson, 2 Bibb 12. Livingston vs. Penn. Iron Co. 2 Paige 391. Gill vs. Corbin, 4 J. J. Mash. 392. ris, 2 Ed. Ch. Rep. 42. Burbees vs. Blanton, 1 J. C. Rep. 213. Chesterman vs. Gardner, 5 J. Ch. R. 29. Young vs. Harris adm. 2 Ala. 111. Weatherhead vs. James, id. 173. Camp vs. Camp. id. 634. Woodruff vs. Bunce, 9 Paige 444. Taylor vs. Porter, 1 Dana 422. And such relief will be granted even though the vendee may not have been divested of possession, 1 Sug. Vend. 284. Young vs. Harris, adm. 2 Ala. 110.

There is a sensible distinction to be observed between suits at law for a breach of covenant for title and quiet possession, and to rescind contracts. In the suit at law the party relies upon his contract and seeks to recover damages for a breach of it; whereas in suits to rescind contracts, the ground of complaint is not that the conditions of the contracts have been broken merely, but that the contract was in its inception fraudulent and should not be enforced. In such cases whether the vendee remained in possession of the property or not until the decree is a question addressed to the conscience of the chancellor in adjusting the points of equity arising in the case as connected with rents, improvements, interest and such other incidental equities as may attend the contract.

There is a very marked distinction between executed contracts where the vendee has accepted a deed and entered into possession, and an executory contract where the vendee is called upon to approve and accept a title in affirmance and completion of such contract. When he has accepted a title he is presumed to have examined the evidences thereof and held them sufficient; and, in the absence of fraud, must in most cases rely upon his covenants of warranty and show that he has been evicted before he is heard to complain. Miller vs. Long, 3 A. K. Marshall 336. Cullum vs. Branch Bank Ala. 4 Ala. 29. Woodruff vs. Bunce, 9

Paige 444. Tallmage vs. Wallis, 25 Wend. 115. Bates vs. Delevan, 5 Paige 300. Simpson vs. Hawkins, 1 Dana 305.

But the case is very different where, under an executory contract, the vendor presents his title. The vendee is put upon inquiry and has a right to demand such title as he contracted for. Weatherford vs. James, 2 Ala. 173. Sebring vs. Mersereau, 9 Cow. 345. 2 Sug. Ven. 111. The title offered by the vendor should be clear and free from incumbrance, doubt or suspicion. 2 Sug. Vend. 110. Payne vs. Cabell, 7 Mon. 202. Miller vs. Long, 3 A, K. Marshall 336. Cummins vs. Boyle, 1 J. J. Marsh. 481. Cullum vs. Branch Bank Ala 4 Ala. 28.

The question recurs, has Yeates or Johnson, who holds the note by assignment and who must be considered as identified in rights with Yeates, presented to Pryor such perfect and clear legal title to the lands sold as will amount substantially to a compliance with his contract?

It is contended for Pryor that the title must be precisely such as was contracted for; that is, if Yeates contracted that Pryor should take the title directly by patent to himself, no other title, however valid and perfect, will excuse him from such compliance, nor was Pryor bound to accept any other.

The authorities cited do not very fully sustain the objection in this instance. It is true that, when the vendor covenants to convey, he must offer a perfect title, that is, one free from doubt or suspicion; and there are several authorities which go to the extent that the vendor cannot substitute another in his stead to make the warranty of title, for the reason that, if he could do so, he might offer one less solvent and able to remunerate the vendee, should the title fail, as in the case of Taylor vs. Porter, 1 Dana 422, which by analogy may go to sustain the position assumed. Yet we are not prepared to say that in this case it can be sustained in point of fact Yeates, it is true, in attempting to convey title to the land, assumed that such would be the effect of his transfers. The contract however was that Yeates himself was the owner of the land and would convey; so that if Yeates should tender a perfect title at the trial of the cause, whether