Lead Opinion
delivered the opinion of the court.
In 1835, David McChord settled upon a tract of land, which was claimed by Thomas Bodley. It does not appear that McChord had any pretence of claim to the land, or had ever asserted any. Shortly after his settlement, Bodley agreed to sell him one hundred acres, including his improvement, and to make him a special warranty deed therefor, whenever he (McChord) should pay him the stipulated price, $¡100.
McChord continued to reside on the land without title, and without having paid or ofFered to pay the $¡100 or any portion thereof; and in 182-1 sold his right tohis son, William K. McChord, the defendant. Thereupon Bodley, on the application of the defendant, covenanted to convey to him the one hundred acres of land, by deed of special warranty, for $150 in commonwealth’s paper, on the payment of $75, one moiety for which indulgence was given, the other moiety having been paid at the time of the contract»
Pogue, as assignee of the note for the $75, having, after it became due, obtained a judgment on it against McChord, the latter filed a bill in chancery, injoining the judgment, and praying fora rescisión of the contract, because, as the bill alleged; Bodley was insolvent and had no title to the land.. Bodley insisted that he had a legal title to the land, but did not, as required by the bill, exhibit his muniments of title.
On the hearing, the circuit court perpetuated the injunction, and rescinded the- contract, and decreed, that Bodley should refund to McChord $75 in-notes, of the bank of the commonwealth, with six per cent interest thereon, from the 25th of August, 1825; the time when it was paid.
And moreover decreed, that “in as much as the complainant did not receive from said Bodley, the possession of said tract of land, the court cannot decree him
The decree of rescisión is approved. Á covenant to conyey title by deed of special warranty, implies, that the covenantor has a perfect legal title, regularly derived from the commonwealth; and if he shall be unable to convey such title, his covenant wiil be broken.
The only difference between a covenant of speciai warranty, and one of general warranty is, that the former will not be broken, if the covenantor had the evidence of a legal title, as between himself and the commonwealth, when the conveyance was made, and permitted the vendee to enjoy thé benefit of it,, without disturbance by himself or any other person claiming under him, and the latter covenant will be broken, if the covenantee be evicted by any title adverse and superior to that of the covenantor, although he had the. evidence of a legal title peifect in itself. There may be many patents to the same land, although but one 0/ them can hold it.
When a party covenants to convey, by deed of special warranty, he thereby under* akes to convey a legal title, good against the state, but refuses to guaranty the superiority of that above any other adversary title. He cannot convey a legal title, unless he has one in himself.
The covenantee stipulates for, and expects a legal title. He should not be required to accept a deed, which would vest in him no r.ghl. All he could exact, would be a conveyance of a legal title, regularly derived from the commonwealth. But this much he pi ay demand as his undeniable right, and there is fail ure of consideration, unless the covenantor can convey such a title. A junior patentee owns the land, until a senior patent, for the same land, be shown.
As Rod.Iey failed to snow that he had such a title, it was the duty of the court to decree a rescisión of the contract.
But the circuit court erred first in decreeing a restitution of commonwealth’s paper in kind, and the payment pfinterest upon it; and second, in withholding an order
1st. McChord is entitled <.nly to the value of what he had paid. To this extent, the law will imply a promise by Bodley. But we know of no law or principle of equity, which will, without express contract, authorize a decree to any other or greater extent. The val le of the 875 on the 25th of Angust, 1825, is the ne phn ultra of McChord’s equity. He is not entitled to interest on even this value, as he had the use of the land, which must be considered as more than equivalent to the interest on one moiety of the price:
2d. It is true, that it does not appear from direct proof, that either the defendant or his father obtained the possession from Bodley. But it is equally true, that there is no evidence or even suggestion, that either of them entered adversely to him, or undercolor of title.
If D. McChord had obtained the possession from Bodley . in 1805, or had entered under Bodley, the decree seems to concede, as is certainly true, that Bodley would be entitled to restitution.
But there may also he cases in which, on the rescisión of contract for land, the occupant should be compelled to surrender the possession to the covenantor, al-thongh it was not originally acquired from him.
‘'•If one enter on land without any title or claim, or color of title, the law adjudges the possession to be in subservience to the legal owner.” Jackson vs. Thomas, XVI Johnson, 301. The same doctrine is maintained in the following cases: Brandt vs. Ogden, I Johnson, 157; Jackson vs. Sharp, IX Ibid, 163; Jackson vs. Ayres, XIV Ibid, 225; Jackson vs. Croy XII Ibid, 427. This is the inference of Jaw in the absence of proof of a hostile entry.
A person entering without color or claim of title may hold adversely to the world. But an adversary possession will not be presumed. The doctrine of adverse possession is to be taken strictly, and must be made out by proof. Every presumption is in favor of a possession in subordination to the title of the true . owner.”
As the defendant has failed to show, that either his father or himself ever had any claim to the land, except what they derived from Bodle/, by making a contract with him, for a conveyance of the title, they acknowledged that he had title, and thereby, there being no fact to the contrary, admitted that they held under him; and consequently, “must be considered in the same- light as if (they) had entered under the agreement.” See XIV Johnson, 225; XII Ibid, 427; 11 Johnson’s Cases 353. When there is no evidence of an adversary possession or of title, even an application, by the person in possession to another claiming title, to purchase it from him, is presumptive evidence, that the applicant holds under the claimant; 'see the cases supra.
A hostile entry may be changed into an amicable-possession ; and a person who enters adversely to the right or another, may afterwards hold under the title of that other, and by such tenure, may be estopped- to deny the title under which he so held. He will alwavs be estopped, when having entered without color or claim of title., he afterwards makes an agreement for the pur--chase of the title from the claimant or holder of it.
An application of the foregoing principles to the facts of this case will show, that the defendant must be-considered as holding under Bodley, and therefore, cannot object to a restitution of the possession to him, merely because there is no positive proof, that JD. Mc-Chord entered under Bodlcy’s tille; nor becauseBodley has failed to exhibit the evidences of his title.
The defendant, after having enjoyed, in connexion with his father, the possession and use of the land for twenty-five years, -without the assertion or the shadow of title, independently of Bodley, should not be allowed to rescind his contract with .Bodley, and hold the land until he can be evicted in an action of ejectment. Bodley should not, under such circumstances, be compelled to prove positively, that he holds a perfect legal title, and that the defendant has held under him, before
We are therefore, of opinion, that restitution should be made to Bodley by the chancellor.
Bodley should pay for all ameliorations. McChord should account for waste, if any has been committed. Bodley should take the land without rents, and Mc-Chord should take the value of his commonwealth’s paper without interest.
Decree reversed and cause remanded, for a decree conformable to the principles of this opinion.
Rehearing
The counsel for McChord, fyc. filed the following petition for a re-hearing.
The counsel for McChord, reluctantly, but earnestly solicit of the court, a re-hearing in this cause, and do respectfully insist, that there is error in the decree, rendered in two particulars.
1st. In refusing to restore to McChord the notes on the bank of the commonwealth, but scaling them to a specie standard.
2d. In decreeing restoration, or rather, that Mc-Chord should give up possession to a man, who never had either possession or title.
As to the first point, it is readily admitted, that courts, for debtor damages, cannot generally give judgment, or decrees for any thing but money; but in the case of a rescisión of contract, it is the duty of every court in placing the parties in statu quo, to restore to each specifically what he had parted with, whether it be money, houses, bank paper, worth less than par or other commodities. The old decree was therefore right. On this point there is expresss authority; see Talbot vs. Dailey, III Bibb, 443; Keith vs. Paton, I Marshall, 23. The court below was therefore, right in decreeing the restoration of bank paper in specie.
On the second point, it is the very first case that the court decreed the land to be given up, unless the pos
How were the pa'-fies before their deaths? McChord was in possession, and no title. Eodley was out of possession and had no title, but stated that he had, and McChord believed him, and bought not the possessson, but a title, as he supposed. Finding afterwards, that Bodley had no title, he withheld payment, injoinéd the purchase money, and prayed a discoveryof title before he paid, or a rescisión. Bodley still declares he has title, arid produces none. The court below set aside the contract for title, and left possession where it was, before the'contract. Was not this complete rescisión, and the parties placed in statu quo completely 'l 'yet,, this court goes further and implies a contract on part of McChord, that he should 'give up possession to, if hé could notget till e.from his vendor? The court rescind the contract, because Bodley has no title, and yet gives him, for the first tin•>, and does not restore the possession because he has title! The court says, that the doctrine óf adverse possession is to be talcen strictly, and cannot be presumed, but must be taken to be held amicably with the right of the true owner. Admit this, and who or where is the true o'wner? Not Bodley, as the court admits. If Bodley has no title, and was to oust Mc-Chord, the latter could recover back the possession on possession only without title, and yet the court has sanctified such an ouster without showing title, and therefore, has prohibited McChord from recovering his possession. Twenty years possession may give the title, so that McChord could hold it forever, and yet the . court has transferred this twenty years title to Bodley, who held no previous possession.
The court seems to anticipate this reasoning, and answers it by saying, that McChord ought not to withhold the possession, by requiring positive evidence of title-Why ought he not to require it? It is the very thing in issue, and that which he wanted. But the court seems to rest the giving up the possession; not so much on title in Bodley, as in want of the defendants showing, that neither his father or himself ever had any claim to the land, except what they derived from Bodley, by making a contract with him, for a conveyance. What
With due submission, the counsel cannot see the propriety of making want of title in Bodley good for one purpose, and not for every purpose of the suit. They cannot suppose that the want of title should keep Bodley out of the money, and yet he should have ■ enough to give him the land, which he never had the .possession of.
Who was McChord before the contract with Bod-ley? We will, for the sake of argument, admit him to be a mere squatter. Who then was Bodley? A preiender to title, but without any, who passing by the defenceless tenement, claimed it, and seduced the unprotected occupant, into a purchase of a pretended title. This deluded occupant pays part of the money? but afterwards becomes alarmed, for fear he was deceived, and applies the screws of the chancellor, to his vendor, to compel the production of title, and insists, if he can get none, that matters ought to be placed back as they were. No title appears. The court says this is true; he ought not to be compelled to fulfil the contract; but still a worse fate awaits him. He must give up his home, to this stranger without title. Deceiving the squatters of the country has been within our judicial hislory, a business for speculators, who pretended to sell title, and is it true, that such speculators shall gain possessions, which they never had; which they never could get, by deluding the settlers into con* t act? For any thing this coart can see the title of this land is yet in the commonwealth, and of course, McChord is entitled to a pre-emption, as the first set-tier. This right, however, the court takes from him. From any thing which appears, McChord has found out the true owner, and has (as the fact is out of the
The counsel will refrain from reasoning further on this case. At this moment, we have not time to cite authorities on the last point, but will try and furnish them hereafter.' Indeed they have considered the point at rest, in this court, and do recollect, that the court has invariably refused (sub silentio, not supposing the matter contestible) to cause the vendee to give up possession on rescisión, even when the vendor proved that he had a title, unless the vendor took 'possession from him. It is known that possession is important, and if the vendor gives possession when he sells, then he gets it back on rescisión. If he does not, he gets the possession in the best way he can; and this, it is avowed, is, and has been, the settled law of this court.
Rehearing
On the first of July, 1831, the Chief Justice delivered the following opinion of the court, in response to the petition for a rehearing.
This case has been re-argued, and re-considered; and the opinion will remain unaltered.
So much of the petition as insists that the chancellor had a right to decree a specific restitution of the commonwealth paper will not be noticed, except by the passing remark that, though the restoration of the thing when practicable, may be proper, a restitution of kind would be unusual at least.
We may admit that McChord is not estopped to deny Bodley’s title, and may not be compelled to restore to him the possession, unless he “entered” under that title or obtained, the possession from Bodley.
But .we maintain, that McChord did enter under Bodley, and did obtain the possession from him. This is the deduction of fact, as well as of law.
1st. As to the fact, Bodley had a claim to a large ■tract of land; and there is no intimation in this record
Under whom then did he enter? His entry was not hostile; his possession was not adverse. He must be presumed to have known that Bodley claimed the land, and that his brother’s home was protected by Bodley’s title. The inference is fair, and almost conclusive, that he entered under Bodley’s title, with the intention of purchasing from him, as he did, or perhaps, in consequence of a prior agreement for the purchase. It is true, that some of the witnesses swear that they do not know that 1). McChord entered under Bodley, but the facts uncontradicted, show, (we think,) that he did so enter; see Jackson vs. Cuerden, II Johnson’s cases, 353.
2d. As to the law. The cases cited in the opinion ’and many others (sparsim) establish, incontrovertibly, the doctrine, that a person who enters on land without claiming any title or manifesting a hostile intention, must be “ia-m rP to have entered under, and in subordination to the title of “the true owner.” This has not been controverted, and will not be, as we suppose.
But it may be said, that Bodley cannot be benelitted by this doctrine of the law, unless he had proved that he was the true owner.
To this, we reply, that he has proved that he was the true owner. If McChord had never made a contract with him, Bodley could not have evicted him-without positive proof of title. But McChord is estop-ped by his contract to deny Bodley’s title.' It is true, that the contract has been rescinded by the decree. But still the fact appears that there was a contract and that McChord held the land under and in consequence of it. The estoppel cannot be affected by the rescisión.
A person, who entered under an executory contrae^ for purchase, will not be permitted to deny the title of the vendor, or to withhold restitution, merely because the chancellor has rescinded the contract; the chancel
The only question then, in this case, is, did McChord enter under Bodley? And this we consider, as settled by the facts and the law. On the question of estoppel on similar facts (in ejectment,) the supreme court of New York said, “the defendant being in possession when the agreement was entei'ed into, can make no difference. He was in as a mere naked possessor, and must be considered in the same light as if he had entered under the agreement;” (Jackson vs. Ayres, XIV Johnson, 225.)
not concurring in opinion with the majority of the courts in this case, delivered his ovni opinion, as follows.
The depositions of three witnesses only, are taken in this cause. Each of them prove that David Mc-Chord, the father of the defendant in error, settled on the land and made improvements, one, two or three years before he contracted to purchase from Bodley. Two of the witnesses prove that McChord entered in January, 1803. The written contract with Bod-ley bears dale in July, 1308. The other witness states that David McChord sef tied on the land in 1806,. as “nea:ly as he can recollect;” that he first made a parol contract with Bo Iby, and afterwards expressing his fears that Bodley might sell out over him, the latter reduced the contract to writing. But this witness who was not favorable to Bodley, expressly states that Mc-Chord lived upon the land one or two years before he made any kind of contract with Bodley, and that he “did not settle under said Bodley.” David McChord sold the land to his son, William, the defendant in error. In 1834, Bodley bound himself, in writing, to convey
If David McChord, the original improver, was a mere squatter, for aug.it that appears in this record, he had as much right and title to the land as Bodley. I cannot say that Bodley has any title whatever, when-he never had possession, and exhibited no patent,, and made no proof that he claimed or held under those who had title or possession. There is no pretext then-for compelling McChord to surrender the land, unless he is estopped to deny Bodley’s title. I do not believe he is estopped by any principle of law to make-the denial. Estoppels are of three kinds, matter of record,, matter in writing, and matter in pais; see Thomas’ Coke upon Littleton, III, 430. Now, I admit, if it had been shown that the McChords entered under Bodley’s claim, they might have been estopped by that, as matter in pais. But it is clearly shown that no such entry was made. If then, there is any estoppel here, it results from the contract in writing, which once, subsisted between the parties, but which the court has annulled by its decree. I acknowledge, that so long as this contract remained in force, it operated as an estoppel.. But when it was overruled, I contend that it had, and could, thenceforth, have neither retrospectively or prospectively, any operation whatever, upon the rights of parties, in regard to the possession of the land, or to ownership over it. So much of the opinion delivered as gives the effect of an estoppel, to the written contract, af er it has been cancelled by the decree of the court, is to my mind, the establishment of a new princi-pie, not only without the sanction of any adjudication, but in opposition to the principle of the cases relied on in support of it. The case of Jackson on the demise of Brown and others vs. Ayres, XIV Johnson, 224, was an ejectment maintained by the lessor, upon
It therefore appears to me, that the effect of the opinion is this, it was wrong in Bodley to sell lands to which he had no right, and consequently, the. contract was properly rescinded.; but as Bodley succeeded in making McChord believe he had title, and thereby induced him to enter into the contract, he ought now to surrender the possession of the land, notwithstanding the contract is rescinded, and although it does not appear that Bodley has the shadow of a title. Against such a doctrine, I feel it to be my duty to dissent.-' I cannot reward Bodley for selling land to which he has no title.