Chancellor.
In January, 1836, the complainant purchased from the defendants, Wilson and Conn, a house and lot in the city of Natchez, for which a deed was then executed, and acknowledged, [388]*388and recorded, and then taken by the defendants, under a promise to procure the signatures and acknowledgment of their respective wives to said deed, and return it to the complainant. The complainant, at the same time, reconveyed the same lot to the defendants, by way of mortgage, to secure a balance of the purchase-money, falling due thereafter. In February, 1839, suit was brought at law for the recovery of the purchase-money. In November, 1840, the complainant filed his original bill, enjoining the suits at law, alleging the failure of the defendants to procure the signatures of their wives and return the deed,, although four years had elapsed from the time of their promise to do so ; and praying for either a specific performance of the contract, and for damages on account of the delay, or for a rescission thereof, and for compensation for money expended in repairs. The answer of Wilson shows, that the title to the house and lot descended to himself and his sistér (Mrs. Conn) as the heirs of Patrick V\ ilson ; that Conn had no interest in it, except in right of his wife ; and that the delay to complete the deed arose from her refusal to join in the conveyance ; that she died in 1838, leaving him her sole heir, and that he thus became invested with the entire title to the lot, and tenders a deed thereto from himself and wife ; and then, by way of cross-bill, insists upon a foreclosure of the mortgage given by the complainant, alleging that, by the death of Mrs. Conn, he became exclusively entitled to the mortgage-money. The complainant then filed an amended bill ; and, upon the facts disclosed in the answer, insists upon an absolute rescission of the contract.
From this, and the argument of his counsel, I am led to suppose that the case, on the original and amended bill, is now to be treated as going exclusively for a rescission of the contract, as this is the only point of view in which the counsel have presented it to my consideration. The question is, — Can a rescission be had for defect of title, where no fraud is alleged or proved, and where it is apparent that a perfect title may now be had ? I think that the complainant’s title became complete and perfect upon the death of Mrs. Conn, through the operation of the previously executed and delivered deed of Wilson. The title cast upon hjm by the death of his sister, enured to the benefit of the complainant, No principle is [389]*389better settled or more consonant to reason, than that where a person sells property under a defective claim, and afterwards, by purchase or descent, becomes clothed with a perfect title, that title will enure to the benefit of his vendee. But even if the title of the complainant was not perfected in this way, still, if the defendants are now ready to perfect it, he cannot, I apprehend, have a rescission-on account of any delay to do so. As a general rule, a court of equity will not rescind a contract for mere defect of title, where there is no fraud, mistake, or misrepresentation by the vendor. Thompson v. Jackson, 3 Rand. R. 504. It is true, that if, at the time of the decree, there is a total inability o'n the part of the vendor to make title, and there is no adequate remedy at Jaw for the breach of the contract, there the Court will decree a rescission, even though there may have been no actual fraud in the case. Bullock v. Bemis, 1 A. K. Marshall’s Rep. 434 ; Hepburn v. Dunlop, 1 Wheat. 179. This, 1 apprehend, is the extent of the exception to the rule. But my-researches have furnished me with no case, where a rescission has been decreed merely on account of defect of title, where the vendor showed himself ready and willing to perfect the title at or before the hearing, unless time had been made important by the terms of the contract, or was necessarily made so from the very nature of the property. Subject to these exceptions, time is not considered important, in a court of equity; and even a specific performance will be decreed, where there is no fraud, and the vendor is ready to make a good title at the hearing. Hepburn v. Auld, 5 Cranch, 262 ; 3 Cow. Rep. 445 ; Finley v. Lynch, 2 Bibb, 561 ; 1 Marshall’s Rep. 423 ; 3 Bibb, 366. And yet it is well settled, that a court of equity requires much stronger grounds for rescinding an agreement, than would induce it to refuse specific performance. Seymour v. Delaney, 3 Cow. Rep. 445. I think, moreover, that it is evident from the reference, in the original deed to the complainant, to the source of the defendant’s title, that he must have known that the title to one moiety' of the lot was in Mrs. Conn, and not in her husband ; if so, he must be regarded as having purchased with a full knoudedge of the alleged defect of title, and, upon well settled principles, could have no relief on that ground. But, however that may be, it is quite clear from the letters of Conn, [390]*390exhibited with the bill, and from the deposition of E. Fletcher, that the complainant knew, as early as 1837, of Mrs. Conn’s refusal to join in the conveyance of the lot. Upon receiving this notice, he might, if he had so elected, have insisted that the agreement was at an end ; and by giving notice to that effect, and surrendering the possession, he might have discharged himself from the contract. But if such was his intention, he should have taken the step promptly, and upon the first information of the inability or refusal of his vendors to make him a perfect title; and his neglect to do so, amounts to a waiver of his right to call for a rescission. 1 Sug. Vend. 261 ; 6 Madd. Rep. 18 ; Lawrence v. Dale, 3 John. Ch. 23 ; M'Neven v. Livingston, 17 John. R. 437. He does not appear, however, to have entertained or given notice of any such purpose, until pressed by suit for the payment of the purchase-money ; and even then, he only asked for a rescission of the contract, as an alternative lo a failure to get a specific performance. It was not until March, 1842, when he filed his amended bill, that a rescission was exclusively insisted on. And it is evident from the facts in the case, that he either then had the title by the death of Conn, and through the'deed of Wilson, or at least that a good title could then be had. All this the complainant then knew, because he admits, in his answer to the cross-hill, that Mrs. Conn, in whom a title to a moiety of the lot vested, was then dead, and that Wilson is her sole heir. During all this time, the complainant appears to have had the undisturbed possession and enjoyment of the house and lot. And I understand the rule to be, that time is not generally considered essential in such cases, where the vendee continues in possession, enjoying the premises as fully as though his title were perfect.
In the case of Roach v. Rutherford, 4 Desaus. Rep. 261, the Court refused to set aside a contract for the purchase of a house and lot, on the allegation of defective title, after a long possession by the purchaser, connected with other acts, amounting to a waiver of the delay to complete title. And in the case of Craig v. Martin, 3 J. J. Marsh. Rep. 54, the Court decreed a specific performance of the contract against the vendee, he having been admitted to possession, and the delay of the vendor to complete the contract [391]*391having arisen from the peculiar state of the title, without any positive fault on his part.
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Chancellor.
In January, 1836, the complainant purchased from the defendants, Wilson and Conn, a house and lot in the city of Natchez, for which a deed was then executed, and acknowledged, [388]*388and recorded, and then taken by the defendants, under a promise to procure the signatures and acknowledgment of their respective wives to said deed, and return it to the complainant. The complainant, at the same time, reconveyed the same lot to the defendants, by way of mortgage, to secure a balance of the purchase-money, falling due thereafter. In February, 1839, suit was brought at law for the recovery of the purchase-money. In November, 1840, the complainant filed his original bill, enjoining the suits at law, alleging the failure of the defendants to procure the signatures of their wives and return the deed,, although four years had elapsed from the time of their promise to do so ; and praying for either a specific performance of the contract, and for damages on account of the delay, or for a rescission thereof, and for compensation for money expended in repairs. The answer of Wilson shows, that the title to the house and lot descended to himself and his sistér (Mrs. Conn) as the heirs of Patrick V\ ilson ; that Conn had no interest in it, except in right of his wife ; and that the delay to complete the deed arose from her refusal to join in the conveyance ; that she died in 1838, leaving him her sole heir, and that he thus became invested with the entire title to the lot, and tenders a deed thereto from himself and wife ; and then, by way of cross-bill, insists upon a foreclosure of the mortgage given by the complainant, alleging that, by the death of Mrs. Conn, he became exclusively entitled to the mortgage-money. The complainant then filed an amended bill ; and, upon the facts disclosed in the answer, insists upon an absolute rescission of the contract.
From this, and the argument of his counsel, I am led to suppose that the case, on the original and amended bill, is now to be treated as going exclusively for a rescission of the contract, as this is the only point of view in which the counsel have presented it to my consideration. The question is, — Can a rescission be had for defect of title, where no fraud is alleged or proved, and where it is apparent that a perfect title may now be had ? I think that the complainant’s title became complete and perfect upon the death of Mrs. Conn, through the operation of the previously executed and delivered deed of Wilson. The title cast upon hjm by the death of his sister, enured to the benefit of the complainant, No principle is [389]*389better settled or more consonant to reason, than that where a person sells property under a defective claim, and afterwards, by purchase or descent, becomes clothed with a perfect title, that title will enure to the benefit of his vendee. But even if the title of the complainant was not perfected in this way, still, if the defendants are now ready to perfect it, he cannot, I apprehend, have a rescission-on account of any delay to do so. As a general rule, a court of equity will not rescind a contract for mere defect of title, where there is no fraud, mistake, or misrepresentation by the vendor. Thompson v. Jackson, 3 Rand. R. 504. It is true, that if, at the time of the decree, there is a total inability o'n the part of the vendor to make title, and there is no adequate remedy at Jaw for the breach of the contract, there the Court will decree a rescission, even though there may have been no actual fraud in the case. Bullock v. Bemis, 1 A. K. Marshall’s Rep. 434 ; Hepburn v. Dunlop, 1 Wheat. 179. This, 1 apprehend, is the extent of the exception to the rule. But my-researches have furnished me with no case, where a rescission has been decreed merely on account of defect of title, where the vendor showed himself ready and willing to perfect the title at or before the hearing, unless time had been made important by the terms of the contract, or was necessarily made so from the very nature of the property. Subject to these exceptions, time is not considered important, in a court of equity; and even a specific performance will be decreed, where there is no fraud, and the vendor is ready to make a good title at the hearing. Hepburn v. Auld, 5 Cranch, 262 ; 3 Cow. Rep. 445 ; Finley v. Lynch, 2 Bibb, 561 ; 1 Marshall’s Rep. 423 ; 3 Bibb, 366. And yet it is well settled, that a court of equity requires much stronger grounds for rescinding an agreement, than would induce it to refuse specific performance. Seymour v. Delaney, 3 Cow. Rep. 445. I think, moreover, that it is evident from the reference, in the original deed to the complainant, to the source of the defendant’s title, that he must have known that the title to one moiety' of the lot was in Mrs. Conn, and not in her husband ; if so, he must be regarded as having purchased with a full knoudedge of the alleged defect of title, and, upon well settled principles, could have no relief on that ground. But, however that may be, it is quite clear from the letters of Conn, [390]*390exhibited with the bill, and from the deposition of E. Fletcher, that the complainant knew, as early as 1837, of Mrs. Conn’s refusal to join in the conveyance of the lot. Upon receiving this notice, he might, if he had so elected, have insisted that the agreement was at an end ; and by giving notice to that effect, and surrendering the possession, he might have discharged himself from the contract. But if such was his intention, he should have taken the step promptly, and upon the first information of the inability or refusal of his vendors to make him a perfect title; and his neglect to do so, amounts to a waiver of his right to call for a rescission. 1 Sug. Vend. 261 ; 6 Madd. Rep. 18 ; Lawrence v. Dale, 3 John. Ch. 23 ; M'Neven v. Livingston, 17 John. R. 437. He does not appear, however, to have entertained or given notice of any such purpose, until pressed by suit for the payment of the purchase-money ; and even then, he only asked for a rescission of the contract, as an alternative lo a failure to get a specific performance. It was not until March, 1842, when he filed his amended bill, that a rescission was exclusively insisted on. And it is evident from the facts in the case, that he either then had the title by the death of Conn, and through the'deed of Wilson, or at least that a good title could then be had. All this the complainant then knew, because he admits, in his answer to the cross-hill, that Mrs. Conn, in whom a title to a moiety of the lot vested, was then dead, and that Wilson is her sole heir. During all this time, the complainant appears to have had the undisturbed possession and enjoyment of the house and lot. And I understand the rule to be, that time is not generally considered essential in such cases, where the vendee continues in possession, enjoying the premises as fully as though his title were perfect.
In the case of Roach v. Rutherford, 4 Desaus. Rep. 261, the Court refused to set aside a contract for the purchase of a house and lot, on the allegation of defective title, after a long possession by the purchaser, connected with other acts, amounting to a waiver of the delay to complete title. And in the case of Craig v. Martin, 3 J. J. Marsh. Rep. 54, the Court decreed a specific performance of the contract against the vendee, he having been admitted to possession, and the delay of the vendor to complete the contract [391]*391having arisen from the peculiar state of the title, without any positive fault on his part. The Court held, that as the vendee had possession, time, in completing the contract, was not important. I am hence of the opinion that lite contract should not he rescinded, and shall, accordingly, direct the original and amended bill to be dismissed, unless the complainant now claims a specific performance, under the prayer of the original bill; if so, a decree to that effect will be^ordered.
I come now to consider the case of the cross-bill of Wilson, for the foreclosure of the mortgage. To this it is objected, 1. That it introduces new matter. 2.
1. It is true that a party cannot, by his cross-bill, introduce new and distinct subjects of litigation from those which are in controversy in the original suit. To illustrate the rule : — A defendant cannot, by a cross-bill, bring into litigation with the complainant other property than that referred to in the original bill, about which they may have some conflicting claims. Gallatian v. Erwin, et al., 1 Hopk. Ch. Rep. 48.
But I take it, if the defendant has a claim upon property which is the subject of the original bill, he may always assert such claim affirmatively against the complainant, by way of cross-bill. Thus ; to a bill for the specific performance of a written contract, the defendant may oppose a cross-bill, for the purpose of having the contract cancelled or delivered up. Story’s Eq. Pl. 312, sec. 391. So it seems, that upon a bill by one of two tenants in common for partition, the other may set up, by way of cross-bill, that he holds the equitable title to the whole premises, and pray that the legpl title in the complainant maybe decreed to him. Story’s Eq. Pl. 313 ; German v. Mackin, 6 Paige’s Rep. 288.
2. In relation to the second objection, it is too plain for argument, that Conn’s contract to sell his wife’s interest in the lot, neither divested her title, nor changed the nature of the property. The [392]*392husband has no power, without the consent of the wife, to convert her real property into personally, so as to change the course of descent, or right of succession. If the wife had joined in the sale of the lot, this would have been a conversion of the property, and would have entitled the husband, or his assignee, to the mortgage-money, in exclusion of the heir-at-law of the wife. Rogers v. Patterson, 4 Paige, Rep. 409. But the wife did,not join in the deed, and her death having cast the entire title to the lot on the defendant, Wilson, as her heir-at-law, and he having ratified the sale, he of course became entitled to the whole mortgage-money, asan incident of that sale. I conclude, therefore, that Wilson is the only necessary and proper party to the bill for a foreclosure of the mortgage, and that such foreclosure may be properly had upon the cross-bill. Let the case be referred, to ascertain the amount due, and, upon the coming in of the report, a decree of foreclosure and sale may be had. Wilson and Conn will be decreed to pay the costs of both suits.
The counsel for Fletcher fell into an error, as to Conn’s not being a party to Wilson’s cross-bill, and have thereby misled the Court. An examination of the record shows that he was a party defendant. i