ORMOND, J.
— The object of the bill is to rescind a contract entered into for the exchange of lands. The case has been argued by the counsel for the defendants in error, by whom the bill was filed, as if it was a proposition by the plaintiff in error to enforce the contract specifically, and he has endeavored to show, that under the circumstances of this case, the Court would not decree a specific performance. It is however well settled, that a Court of Chancery may refuse to rescind a contract, where it would not specifically enforce it. [Jackson v. Ashton, 11 Peters, 248; Mortlock v. Butler, 15th Vesey, 292 ; Seymour v. Delancey, 3 Cowen, 530.] It will not avail the defendants in error, if they could show that from the delay in this case the plaintiff would not be entitled to a performance of the contract. He is not seeking any thing at the hands of the Court, and the only ques[76]*76tion therefore is, whether he has been guilty of such a violation of a contract, that the other party has the right to rescind it.
The parties agreed in writing, on the 29th January, 1841, upon an exchange of lands, the plaintiff in error agreeing to exchange two tracts of land lying in Clarke county for one belonging to the defendant in Sumter County. The plaintiff in error executed his bond promising to make title to the defendants, to the lands in Clarke county, in six months thereafter. And on the 16th February, 1841, the parties mutually executed to each other title to the lands so exchanged. Both parties went into an immediate possession of the lands exchanged. It appears very clear from the proof, that it was well known at the time of the exchange, tjjat the title to the Kirkland tract was not in the plaintiff in error, but that the land belonged to certain minors of whom the plaintiff was guardian, and that it was expected and understood that he was to cause the land to be sold and procure his title.
It would be contrary to equity and good conscience, to permit one who proceeds so far in a purchase as to obtain possession, with knowledge of a defect in the title, to object af-terwards, the want of title as a reason for not complying with his contract. If he knows that the defect can only be obviated by a judicial proceeding, it is impossible to suppose that the time stipulated for the completion of the contract, was considered by him an essential ingredient of the contract, as it could not be known what length of time it might take to obtain the title. The question therefore in such cases is not, whether the party was able to make the title on the day stipulated, but whether there was1 unreasonable delay in obtaining it. [Seton v. Slade, 7th Vesey, 265; Colton v. Wilson, 3 P. Wms. 190.]
Thus far the case has been considered as if it were an ex-ecutory contract, but it appears to have been executed by the acceptance of a deed before the expiration of the time for making a complete title. The deed was prepared by one Hatch, acting as the agents of the defendants in error, and was received by him when executed by the plaintiff. It could not be tolerated, that one should purchase lands to which he knew the title rvas defective, accept a deed and go into the possession and [77]*77enjoyment of it, and then rescind the contract for the defect of the title. It was urged in argument that the circumstances surrounding the transaction, were conclusive to show, that Hatch exceeded his authority in taking the deed, and that his principals were not bound by his act. His deposition has been taken, and he states that he was the agent of the defendants in error, for the purpose of procuring the deed to be made, and we can discover nothing unreasonable or improb-r able in his statement. Nor is it alledged in the bill, that the agent exceeded his authority, but it is admitted that the deed was executed on the day it bears date — that the lands called the Kirkland tract, were so imperfectly described in the deed, that they were unable to locate them, and that since the execution of the deeds they had ascertained that the plaintiffs had neither right or title to the Kirkland tract,” and that as soon afterwards as they conveniently could do so, they offered to return the lands they had received and to rescind the contract, which the plaintiff had refused.
The case made by the bill, is not that the agent receiv.ed the deed without authority, but that the discovery has since been made, that the plaintiff had no title to the land. The am swer positively alledges, that the complainants had full knowledge ,of the true state of the title when the exchange was made, and the proof shows such to bo the fact. This testimony was rejected by the Chancellor, because in his opinion it varied the written contract of the parties. If the case now stood upon the written contract of the parties by which the plaintiff was to make title in six months, it is not perceived that the reception of such testimony would violate the rule in .■question. It does not in the slightest degree add to or diminish the terms of the contact, but merely establishes the existence of a separate and distinct fact. Whatever influence it might, when established, exert over the contract, it no more alters or impairs it, than would the proof of infancy or any other distinct fact, which might prevent its enforcement or affect its validity. Certainly, however, when the attempt is made to rescind the contract for the defect of title, it is competent for the other party to show, that at and before its execution, the defect was well known. This is in truth the issue tendered by the complainants in their bill, not indeed directly, as it is [78]*78not expressly alledged that they were ignorant of the true state of the title when the exchange was made, but indirectly, by the allegation “ that as soon as they learned that the said Beck was unable to make a good and lawful title to the Kirkland tract, they offered to redeliver possession, &c., to the said Beck.”
If it be conceded that it was competent for the complainants, after the contract was executed, with knowledge on their part, that the title was in a third person, to rescind it, unless the outstanding title was extinguished, it certainly would not be permitted without giving the other party a reasonable time to procure the title. The plaintiff might well have supposed, that as the complainants had his deed with warranty, and as they were in possession of the land, there was no urgent necessity for taking immediate steps to get in the outstanding title. As soon as he was apprised of their dissatisfaction with the title as it thus stood, he appears to have acted with promptitude. It is not expressly alledged in the bill, or amended bill, when the demand of title and offer to rescind were made, but it appears from the answer to have been about the 4th of January, 1842. The title was finally obtained by the plaintiff on the 13th June, 1842, under a sale made by virtue of a decree of the Orphans’ Court of Clarke county, and tendered to the complainants. We do not think this an unreasonable delay. As from the nature of the case it was necessary to apply to a Court of justice, the delays consequent upon such an applicar tion must be allowed.
The only objection here urged to the validity of title thus obtained, is, that the Orphans’ Court appointed but three instead of five commissioners to make sale of the land.
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ORMOND, J.
— The object of the bill is to rescind a contract entered into for the exchange of lands. The case has been argued by the counsel for the defendants in error, by whom the bill was filed, as if it was a proposition by the plaintiff in error to enforce the contract specifically, and he has endeavored to show, that under the circumstances of this case, the Court would not decree a specific performance. It is however well settled, that a Court of Chancery may refuse to rescind a contract, where it would not specifically enforce it. [Jackson v. Ashton, 11 Peters, 248; Mortlock v. Butler, 15th Vesey, 292 ; Seymour v. Delancey, 3 Cowen, 530.] It will not avail the defendants in error, if they could show that from the delay in this case the plaintiff would not be entitled to a performance of the contract. He is not seeking any thing at the hands of the Court, and the only ques[76]*76tion therefore is, whether he has been guilty of such a violation of a contract, that the other party has the right to rescind it.
The parties agreed in writing, on the 29th January, 1841, upon an exchange of lands, the plaintiff in error agreeing to exchange two tracts of land lying in Clarke county for one belonging to the defendant in Sumter County. The plaintiff in error executed his bond promising to make title to the defendants, to the lands in Clarke county, in six months thereafter. And on the 16th February, 1841, the parties mutually executed to each other title to the lands so exchanged. Both parties went into an immediate possession of the lands exchanged. It appears very clear from the proof, that it was well known at the time of the exchange, tjjat the title to the Kirkland tract was not in the plaintiff in error, but that the land belonged to certain minors of whom the plaintiff was guardian, and that it was expected and understood that he was to cause the land to be sold and procure his title.
It would be contrary to equity and good conscience, to permit one who proceeds so far in a purchase as to obtain possession, with knowledge of a defect in the title, to object af-terwards, the want of title as a reason for not complying with his contract. If he knows that the defect can only be obviated by a judicial proceeding, it is impossible to suppose that the time stipulated for the completion of the contract, was considered by him an essential ingredient of the contract, as it could not be known what length of time it might take to obtain the title. The question therefore in such cases is not, whether the party was able to make the title on the day stipulated, but whether there was1 unreasonable delay in obtaining it. [Seton v. Slade, 7th Vesey, 265; Colton v. Wilson, 3 P. Wms. 190.]
Thus far the case has been considered as if it were an ex-ecutory contract, but it appears to have been executed by the acceptance of a deed before the expiration of the time for making a complete title. The deed was prepared by one Hatch, acting as the agents of the defendants in error, and was received by him when executed by the plaintiff. It could not be tolerated, that one should purchase lands to which he knew the title rvas defective, accept a deed and go into the possession and [77]*77enjoyment of it, and then rescind the contract for the defect of the title. It was urged in argument that the circumstances surrounding the transaction, were conclusive to show, that Hatch exceeded his authority in taking the deed, and that his principals were not bound by his act. His deposition has been taken, and he states that he was the agent of the defendants in error, for the purpose of procuring the deed to be made, and we can discover nothing unreasonable or improb-r able in his statement. Nor is it alledged in the bill, that the agent exceeded his authority, but it is admitted that the deed was executed on the day it bears date — that the lands called the Kirkland tract, were so imperfectly described in the deed, that they were unable to locate them, and that since the execution of the deeds they had ascertained that the plaintiffs had neither right or title to the Kirkland tract,” and that as soon afterwards as they conveniently could do so, they offered to return the lands they had received and to rescind the contract, which the plaintiff had refused.
The case made by the bill, is not that the agent receiv.ed the deed without authority, but that the discovery has since been made, that the plaintiff had no title to the land. The am swer positively alledges, that the complainants had full knowledge ,of the true state of the title when the exchange was made, and the proof shows such to bo the fact. This testimony was rejected by the Chancellor, because in his opinion it varied the written contract of the parties. If the case now stood upon the written contract of the parties by which the plaintiff was to make title in six months, it is not perceived that the reception of such testimony would violate the rule in .■question. It does not in the slightest degree add to or diminish the terms of the contact, but merely establishes the existence of a separate and distinct fact. Whatever influence it might, when established, exert over the contract, it no more alters or impairs it, than would the proof of infancy or any other distinct fact, which might prevent its enforcement or affect its validity. Certainly, however, when the attempt is made to rescind the contract for the defect of title, it is competent for the other party to show, that at and before its execution, the defect was well known. This is in truth the issue tendered by the complainants in their bill, not indeed directly, as it is [78]*78not expressly alledged that they were ignorant of the true state of the title when the exchange was made, but indirectly, by the allegation “ that as soon as they learned that the said Beck was unable to make a good and lawful title to the Kirkland tract, they offered to redeliver possession, &c., to the said Beck.”
If it be conceded that it was competent for the complainants, after the contract was executed, with knowledge on their part, that the title was in a third person, to rescind it, unless the outstanding title was extinguished, it certainly would not be permitted without giving the other party a reasonable time to procure the title. The plaintiff might well have supposed, that as the complainants had his deed with warranty, and as they were in possession of the land, there was no urgent necessity for taking immediate steps to get in the outstanding title. As soon as he was apprised of their dissatisfaction with the title as it thus stood, he appears to have acted with promptitude. It is not expressly alledged in the bill, or amended bill, when the demand of title and offer to rescind were made, but it appears from the answer to have been about the 4th of January, 1842. The title was finally obtained by the plaintiff on the 13th June, 1842, under a sale made by virtue of a decree of the Orphans’ Court of Clarke county, and tendered to the complainants. We do not think this an unreasonable delay. As from the nature of the case it was necessary to apply to a Court of justice, the delays consequent upon such an applicar tion must be allowed.
The only objection here urged to the validity of title thus obtained, is, that the Orphans’ Court appointed but three instead of five commissioners to make sale of the land. The act of 1820, (Clay’s Digest, 196, § 2^ did require the appointment of five commissioners to make sale of real estate, when such sale was necessary for the purpose of more equal distribution among the heirs, which was the cause assigned for the sale in this iustance; but the act of 1822, (Clay’s Dig. 225, § 19.) authorizing the Orphans’Court to order a sale of lands for this purpose, is silent as to the number of commissioners necessary to conduct the sale. It is then left to the discretion of the Court as to the number of the commissioners, and being subsequent in point of time, is, as to this particular a repeal of the former [79]*79law. There is not therefore, any weight in this objection, and no other has been brought to our notice.
The alledged omission in the deed is, that it does not state the County, State, or land district in which the lands are situated, so that from the deed it is impossible to locate the lands. There is no allegation that the omission was fraudulent, and it appears from the answer and proof, that the deed was prepared by the agent of the complainants. The correction of mistakes is doubtless an appropriate head of Chancery jurisdiction, but to justify the application to that Court for this purpose, it should appear that the opposite party on application, refuses to make the correction or supply the omission, as was held by this Court in Long & Long v. Brown, 4th Ala. Rep. 632, and in subsequent cases. There must exist a necessity for the interposition of Chancery. Here, it appears, that the plaintiff repeatedly offered to supply the omission: there is therefore, no reason shown for the interposition of a Court of Chancery. *
Our conclusion is, that the decree of the Chancellor must be reversed, and a decree be here rendered dismissing the bill.