and the seller would be obliged to allow a rateable diminution of the price. Pothier thinks, however, that in equity the buyer ought not to be bound to any part or modification of the contract, when the inducement to the contract had thus failed; and this would seem to be the reasoning of Papinian, from another passage in the Pandects, and it is certainly the more just and reasonable doctrine. The code Napoleone has settled the French law in favour of the opinion of Pothier, by declaring, that if part of the thing sold be destroyed at the time, it is at the option of the buyer to abandon the sale, or to take the part preserved, on a reasonable abatement of price; and, I presume, the principle contained in the English and American cascs tend to the same conclusion, provided the inducement to the purchase be thereby materially affected.

Where the parties had entered into an agreement for the sale and purchase of an interest in a public house, which was stated to have had eight years and a half to come, and it turned out on examination that the vendor had an interest of only six years in the house, Lord Kenyon ruled,d that the buyer had a right to consider the contract at an end, and recover back any money which he had paid in part performance of the agreement for the sale. The buyer had a right to say it was not the interest he had agreed to purchase. So, in another case, and upon the same principle, Lord Eldon held, that if A. purchased a horse of B., which was warranted sound, if it turned out that he was unsound, the buyer might keep the horse, and bring an action on his warrantee for the difference in value; or he might return the horse, and recover back the money paid; though, if

a Traité du Contrat de Vente, n. 4.

b Dig. 18. 1. 58.

e No. 1601.

d Farrer v. Nightingal, 2 Esp. Rep. 639.

⚫ Curtis v. Iannay, 3 Esp. Rep. 82.

he elected to pursue that course, he must be prompt in re scinding the contract. There are other cases, however, in which it has been held, that it was no defence at law to a suit on a note or bill, that the consideration partially failed, by reason that the goods sold were of an inferior quality, unless clear fraud in the sale be made out; and the courts refer the aggrieved party to a distinct and independent remedy. But if a title to a part of the chattels sold had totally failed, so as to defeat the object of the purchase, as if A. should sell to B. a pair of horses for carriage use, and the title to one of them should fail, it is evident, from analogous cases, that the whole purchase might be held void even in a court of law. In the case of a sale of several lots of real property at auction, the purchaser purchased three lots, and paid the purchase money, but the title to two of the lots failed; and Lord Kenyon ruled, that it was one entire contract, and if the seller failed in making title to any one of the lots, the purchaser might rescind the contract, and refuse to take the other lots. The same principle was advanced in the case of Judson v. Wass,d which was the purchase of several lots of land, and the purchaser was held to be entitled to have a perfect title according to contract, without any incumbrance, or he might disaffirm the sale, and recover back his deposit.

On the subject of the claim to a completion of the purchase, or to the payment or return of the consideration money, in a case where the title, or the essential qualities of part of the subject, fail, and there is no charge of fraud, the law does not seem to be clearly and precisely settled,

a Buller, J. 1 Term Rep. 136. and in Compton v. Burn, Esp. Dig. 13.. b Morgan v. Richardson, 1 Campb. N. P. 40. note. Fleming . Simpson, ibid. Tye v. Gwynne, 2 Campb. N. P. Rep. 346.

▸ Chambers v. Griffiths, 1 Esp. Rep. 150.

d 11 Johns. Rep. 525.

and it is difficult to reconcile the cases, or make the law harmonize on this vexatious question. The rules on this branch of the law of sales are in constant discussion, and of great practical utility, and they ought to be distinctly. understood. The principles which govern the subject as to defects in the quality or quantity of the thing sold, are the same in their application to sales of lands and chattels.

In the case of a purchase of land where the title in part fails, the Court of Chancery will decree a return of the purchase money, even after the purchase has been carried completely into execution by the delivery of the deed, and payment of the money, provided there bad been a fraudulent misrepresentation as to the title. But if there be no Ingre lient of fraud, and the purchaser is not evicted, the insufficiency of the title is no ground for relief against a security given for the purchase money, or for rescinding the purchase, and claiming restitution of the money. The party is remitted to his remedies at law on his covenants to insure the title.b In Frishte v. Hofnagle, the purchaser, in a suit at law, upon his note given to the vendor for the purchase money, was allowed to show in his defence, in avoidance of the note, a total failure of title, notwithstanding he had taken a deed with full covenants, and had not been evicted. But the authority of that case, and the doctrine of it, were overruled by the Supreme Court in the state of Maine, in a subsequent case, founded on like circumstances; and they were afterwards in some degree restored, by the doubts thrown over the last decision by the Supreme Court of Mas

a Edwards v. M'Leary, Cooper's Eq. Rep. 308. Fenton v. Browne, 14 Vesty. 144.

b Abbott v. Allen, 2 Johns. Ch. Rep. 519. Barkhamsted v. Case, 5 Conn. Rep. 528.

50 Johns. Rep 11 ء

d Lloyd v. Jewell, 1 Greenleaf, 352.

sachusetts in Knapp v. Lee." The same defence was made to a promissory note in the case of Greenleaf v. Cook, and it was overruled, on the ground that the title to the land, for the consideration of which the note was given, had only partially failed; and it was said, that to make it a good defence in any case, the failure of title must be total. This case at Washington is contrary to the defence set up and allowed, and to the principle established, in the case of Gray v. Handkinson, and it leaves the question, whether a total failure of title be not a good defence, as between the original parties, to an action for the consideration money on a sale of lands, in its former state of painful uncertainty. The justice of the case is with the defence, but 1 apprehend the technical rule to be otherwise, and that it remits the party back to his covenants in his deed, and if there be no ingredient of fraud in the case, and the party has not had the precaution to secure himself by covenants, he has no remedy for his money even on a failure of title. This is the strict rule of the English law, both at law and in equity, and it applies equally to charrels when the vendor sells without any averment of title, and without possession.d The same rule has been considered to be the law in this state;e but in South Carolina their courts of equity will allow a party suffering by the failure of title, in a case without warranty, to recover back the purchase money, in the sale of real as

a 3 Pickering, 452.

b 2 Wherton, 13.

c 1 Bay, 278.

d Tanfield, Ch. B. in Roswell v. Vaughan, Cro. Jac. 196. Medina v. Stoughton, 1 Salk. 211. Bree v. Holbech, Dong. 654. Lord Alvanley, in Johnson v. Johnson, 3 Bos. & Pull. 170. Urmston v. Pate, cited in Sugden's Law of Vendors, 3d. ed. 3:6, 347. and in 4 Cruise's Dig. 90. and in Cooper's Eq. Rep. 311. 1 Fonb. 366. note.

e Frost v. Raymond, 2 Caines' Rep. 188, Abbat v. Allen, 2 Johns. Ch. Rep. 523.

well as of personal estates. This is, no doubt, the law here as to sales of chattels of which the vendor had possession, for a warranty is implied; but the weight of authority is against its more enlarged application.

In one case, Lord Kenyon observed, when sitting in chancery, that the Court had gone great lengths in compelling parties to go on with purchases, contrary to their original agreement and intention; but he said, a case might be made out sufficient to put an end to the whole contract, when the seller could not make a good title to part of the subject sold. In the case of the Cambridge wharf, the seller made title to all the estate but the wharf, and that part of the land was the principal object of the buyer in making the purchase; and the buyer, who had contracted for the house and wharf, was compelled to complete the purchase without the wharf; but that, as Lord Kenyon truly observed, was a determination contrary to all justice and reason. There have been a number of hard cases in chancery, and in which performance has been enforced, though there was a material variance between the actual and supposed circumstances of the subject, and when those circumstances were wanting which were the strong inducement to the contract. These cases had gone to such extravagant lengths, that Lord Erskine declaredd he would not follow them, nor decree specific performance when the main inducement to the purchase had failed. In many cases, however, where the title proves defective in a part, or to an extent not very essential, specific performance will be decreed, with a rateable reduction of the purchase money, by way of compensation for the deficiency. This is analogous in principle to the case of goods

a Tucker v. Gordon, 4 S. C. Eq. Rep. 53. 59.

b Poole v. Shergold, 1 Cor's Cas. 273.

c Several cases of that kind are alluded to by Lord Eldon, in 6 Vesey, 678.; and see also Oldfield v. Round, 5 ilid. 508.

d Halsey v. Grant, 13 Vesey, 78. Stapylton v. Scolt, ibid. 426.

e Milligan v. Cooke, 16 Vesey, 1. King v. Bardeau, 6 Johns. Ch Rep. 38.