Johnson, Judge,
delivered the opinion of the Court:
The first error assigned is, that the court should have directed an issue quantum damnificatus. I see no reason for directing such an issue. The proof seems to be full; and if there had been an absence of proof the court could have referred the cause to a commissioner, to ascertain the relative value of the land, at the time the contract was made. Clark v. Hardgrove, 7 Gratt. 399.
The second error assigned is, that “the bill having been taken for confessed as to the defendants, Mann and Rodgers, the court should have decreed against them in favor of the plaintiff.” This would have been to have tried the ejectment in chancery. A court of equity, has no jurisdiction to settle the title, or boundaries, of land [236]*236between adverse claimants, unless the plaintiff has an equity against the adverse claimants; and equity against, other persons will not give the jurisdiction. Stuart’s Heirs v. Coalter, 4 Rand. 74; Lange v. Jones, 5 Leigh 192; Steed v. Baker, 13 Gratt. 380; Wolfe v. Scarborough 2 Ohio St. 361. In this cause the plaintiff has no equity against the adverse claimants. His equity is against the purchaser, James Jarrett.
It is also assigned as error, that the court erred in dismissing the plaintiff's bill, and should have decreed in favor of the plaintiff. Whether this was error depends upon the question, as to what was involved in the contract between the parties. The contract contains this language: “the said Johnston hath this day sold to said Jarrett his lands on Muddy Creek, including his home place, which he purchased of Jacob Hamilton, the land devised to him by George Johnston, deceased, the land purchased of Ballard Carraway, and allthe lands ownedby him, containing eight hundred acres, more or less. All of which I have heretofore owned, except two acres sold to Beard, and one-third of a tract of about forty acres, known as the Bead land, and thirteen acres sold off to Hpotts for a tan yard; for which said Jarrett, is to pay Johnston eighteen thousand seven hundred dollars,” &o. It further provides, that Jarrett is to have possession of the farm on the 1st day of March next, except the land that is sown in wheat, the house and lot around the house, including the spring, garden, and a part of the barn, as much as ho should need for his own use; and the ground sowed in wheat, Jarrett is to have possession of as soon as the wheat is cut and stacked, or threshed, not to be pastured by Johnston or the tenant; Johnston is to have privilege to use firewood and use ot the house and lot, until he removes from it; and if he does not move before the-lst 'day of November, he is then to give Jarrett possession of the house, &c., in full * * * Johnston-to make a wárranty deed to Jarrett for said lands against the 1st day of March next.”
[237]*237The deed of general warranty was executed by Johnston and wife to said Jarrett on the; 4th day February, 1871, in less than a month after the contract was made, was acknowledged on the same day, and admitted to record on the 6th ofFehruary, 1871. The description of the land in the deed is substantially what it is in the contract.
It will be observed that.possession of all the lands sold was to be delivered to Jarrett on the 1st day of November, 1871.
It is insisted by counsel for appellant, that Jarrett, having taken conveyance of a defective title with Isnowl-edge of the fact, he will not be heal’d in a court of equity in an effort to resist the payment ,of the purchase money on account of such defects, .unless he alleges and proves fraud in the contract, and cites among other authorities, Vail v. Nelson, 4 Rand. 478; Goddin v. Vaughn, 14 Gratt. 102.
In Vail v. Nelson it appears, that the property was sold at auction. It was proved, that the advertisement was read by the crier before the biddings, and there was no stipulation therein as to the time when the, title should be conveyed. It was proved, that the purchaser said, that he knew that the title was in part in infants and could not be conveyed until they became of ago. The court said, upon the facts of that case it was impossible to resist the conclusion, that the purchaser knew perfectly well the state of the title when he purchased, and that no title could be made until the infants came of age ; and that he neither demanded, nor expected, a title to be made until then. Not so in this case. The covenant bound the vendor to make a title to the land within a time specified, and. to put the vendor in possession of the property.
The case of Goddin v. Vaughn was also a sale at auction. The court held that, “when the sale is of such a character and made under such circumstances, as fully and sufficiently to make known to the purchaser the exact nature of the title he is to expect, as where the [238]*238sa^° ma(^e avowedly by an executor under tbe provis-ions of tlie will, or by a sheriff or commissioner under an order of court, he can oi course only demand, such title, as was in contemplation of the parties when the sale was made.”
There is nothing in either of these cases to countenance the idea, that when the express contract is for a perfect title, the party can be put off with a defective title, even if the defect was by him known at the time.
The vendor of real estate is not responsible for any defects of title, unless he has bound himself by some covenant or warranty to protect the vendee, unless he has been guilty of some fraud or concealment. Comm. v. McClanachan’s ex’rs, 4 Rand. 482.
But where he has bound .himself to convey the land with covenant of general warranty, he is responsible for defect of title to any part of the land so sold; and a court of equity will not compel the payment of the whole of the purchase money, until the defect is removed; although there has been a conveyance of such land to the vendee. Koger v. Kane, 5 Leigh 606; Clarke v. Hardgrove, 7 Gratt. 399; Renick v. Renick, 5 W. Va. 285.
Where the contract made between the parties compels the vendor to convey the land with covenant of general warranty, and to put the party in possession of the land, a court of equity will protect the vendee against a defect of title to any part of the land included in the contract, although that defect was known to the purchaser, when the contract was made, unless there has been a waiver by the purchaser of such objection to the title. Jackson v. Ligon, 3 Leigh 161. The parties must be bound by the contract they made,'if it was fr.ee from fraud and mistake.
But the case before us is peculiar, and does- not fall precisely within the circumstances of any of the cases we have cited here, the contract was for all the lands the vendor owned on Muddy creek, with certain specified [239]*239exceptions. He also in the contract sells the home farm; that is the farm of eighty-three and three-fourths acres, where, as to a part theieof, the controversy is. His contract does not speeifiy the boundaries of that farm; and it appears from the record, that Johnston and the adverse claimants, claimed the same line; but the trouble was to know just where that line ran.
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Johnson, Judge,
delivered the opinion of the Court:
The first error assigned is, that the court should have directed an issue quantum damnificatus. I see no reason for directing such an issue. The proof seems to be full; and if there had been an absence of proof the court could have referred the cause to a commissioner, to ascertain the relative value of the land, at the time the contract was made. Clark v. Hardgrove, 7 Gratt. 399.
The second error assigned is, that “the bill having been taken for confessed as to the defendants, Mann and Rodgers, the court should have decreed against them in favor of the plaintiff.” This would have been to have tried the ejectment in chancery. A court of equity, has no jurisdiction to settle the title, or boundaries, of land [236]*236between adverse claimants, unless the plaintiff has an equity against the adverse claimants; and equity against, other persons will not give the jurisdiction. Stuart’s Heirs v. Coalter, 4 Rand. 74; Lange v. Jones, 5 Leigh 192; Steed v. Baker, 13 Gratt. 380; Wolfe v. Scarborough 2 Ohio St. 361. In this cause the plaintiff has no equity against the adverse claimants. His equity is against the purchaser, James Jarrett.
It is also assigned as error, that the court erred in dismissing the plaintiff's bill, and should have decreed in favor of the plaintiff. Whether this was error depends upon the question, as to what was involved in the contract between the parties. The contract contains this language: “the said Johnston hath this day sold to said Jarrett his lands on Muddy Creek, including his home place, which he purchased of Jacob Hamilton, the land devised to him by George Johnston, deceased, the land purchased of Ballard Carraway, and allthe lands ownedby him, containing eight hundred acres, more or less. All of which I have heretofore owned, except two acres sold to Beard, and one-third of a tract of about forty acres, known as the Bead land, and thirteen acres sold off to Hpotts for a tan yard; for which said Jarrett, is to pay Johnston eighteen thousand seven hundred dollars,” &o. It further provides, that Jarrett is to have possession of the farm on the 1st day of March next, except the land that is sown in wheat, the house and lot around the house, including the spring, garden, and a part of the barn, as much as ho should need for his own use; and the ground sowed in wheat, Jarrett is to have possession of as soon as the wheat is cut and stacked, or threshed, not to be pastured by Johnston or the tenant; Johnston is to have privilege to use firewood and use ot the house and lot, until he removes from it; and if he does not move before the-lst 'day of November, he is then to give Jarrett possession of the house, &c., in full * * * Johnston-to make a wárranty deed to Jarrett for said lands against the 1st day of March next.”
[237]*237The deed of general warranty was executed by Johnston and wife to said Jarrett on the; 4th day February, 1871, in less than a month after the contract was made, was acknowledged on the same day, and admitted to record on the 6th ofFehruary, 1871. The description of the land in the deed is substantially what it is in the contract.
It will be observed that.possession of all the lands sold was to be delivered to Jarrett on the 1st day of November, 1871.
It is insisted by counsel for appellant, that Jarrett, having taken conveyance of a defective title with Isnowl-edge of the fact, he will not be heal’d in a court of equity in an effort to resist the payment ,of the purchase money on account of such defects, .unless he alleges and proves fraud in the contract, and cites among other authorities, Vail v. Nelson, 4 Rand. 478; Goddin v. Vaughn, 14 Gratt. 102.
In Vail v. Nelson it appears, that the property was sold at auction. It was proved, that the advertisement was read by the crier before the biddings, and there was no stipulation therein as to the time when the, title should be conveyed. It was proved, that the purchaser said, that he knew that the title was in part in infants and could not be conveyed until they became of ago. The court said, upon the facts of that case it was impossible to resist the conclusion, that the purchaser knew perfectly well the state of the title when he purchased, and that no title could be made until the infants came of age ; and that he neither demanded, nor expected, a title to be made until then. Not so in this case. The covenant bound the vendor to make a title to the land within a time specified, and. to put the vendor in possession of the property.
The case of Goddin v. Vaughn was also a sale at auction. The court held that, “when the sale is of such a character and made under such circumstances, as fully and sufficiently to make known to the purchaser the exact nature of the title he is to expect, as where the [238]*238sa^° ma(^e avowedly by an executor under tbe provis-ions of tlie will, or by a sheriff or commissioner under an order of court, he can oi course only demand, such title, as was in contemplation of the parties when the sale was made.”
There is nothing in either of these cases to countenance the idea, that when the express contract is for a perfect title, the party can be put off with a defective title, even if the defect was by him known at the time.
The vendor of real estate is not responsible for any defects of title, unless he has bound himself by some covenant or warranty to protect the vendee, unless he has been guilty of some fraud or concealment. Comm. v. McClanachan’s ex’rs, 4 Rand. 482.
But where he has bound .himself to convey the land with covenant of general warranty, he is responsible for defect of title to any part of the land so sold; and a court of equity will not compel the payment of the whole of the purchase money, until the defect is removed; although there has been a conveyance of such land to the vendee. Koger v. Kane, 5 Leigh 606; Clarke v. Hardgrove, 7 Gratt. 399; Renick v. Renick, 5 W. Va. 285.
Where the contract made between the parties compels the vendor to convey the land with covenant of general warranty, and to put the party in possession of the land, a court of equity will protect the vendee against a defect of title to any part of the land included in the contract, although that defect was known to the purchaser, when the contract was made, unless there has been a waiver by the purchaser of such objection to the title. Jackson v. Ligon, 3 Leigh 161. The parties must be bound by the contract they made,'if it was fr.ee from fraud and mistake.
But the case before us is peculiar, and does- not fall precisely within the circumstances of any of the cases we have cited here, the contract was for all the lands the vendor owned on Muddy creek, with certain specified [239]*239exceptions. He also in the contract sells the home farm; that is the farm of eighty-three and three-fourths acres, where, as to a part theieof, the controversy is. His contract does not speeifiy the boundaries of that farm; and it appears from the record, that Johnston and the adverse claimants, claimed the same line; but the trouble was to know just where that line ran. At the time the contract was made, as is shown by tfie pleadings in the canse, Johnston told Jarrett, that there was a dispute about the boundary, that certain parties were claiming several acres of the land, and that he had instituted an action of ejectment to recover it; that he thought it belonged to him and was a part of the “home farm.”
It appears, that afterwards Johnston did recover in the ejectment suit, but the defendants had taken the case to the Supreme Court of Appeals, where the judgment of the circuit court was reversed on some ground not appearing in the record, and the case was remanded for a new trial; but that the new trial had not been had-Under these circumstances the plaintiff brought this suit, to recover the balance of the purchase money.
It is very clear, if Johnston.had obtained a judgment in his ejectment suit, and evicted the adverse claimants Sy Halms 1. before he asked the court for a decree for the residue of the purchase money, he would have been entitled to such decree. But in advance of the decision of that case how can it be known, whether the few acres of land then in controversy, did in fact belong to the “home jdacc” sold by Johnston to Jarrett. If it was a part thereof, he sold it to Jarrett. If not a part thereof, he did not, under the terms of his contract, sell it to him. The vendor had chosen the forum, and the proper one; to test that question; and he had no right to bring his chancery suit for the residue of the purchase money, until that question had been determined, he having represented to Jarrett that he believed the land in controversy was a part of the home place. If he had finally tried his ejectment, and it had been decided against him, he [240]*240could then have brought his chancery suit, to recover the residue of the purchase money; and it would then have been a question before-the chancellor, whether he would have been entitled to recover. How far in .that case Jarrett would have been affected, if at all, by the verdict and judgment, we will now express no opinion.
Wo have been considering the cause, as if Jarrett had not, by hitf acts under the circumstances, waived his right to insist upon Johnston putting him in possession of the disputed land. That he could waive such right-is well settled. 2 Sug. on Vendors 7 et seq. and cases cited. Sugdon says : “Sometimes a purchaser has waived his right to object to the seller’s title. Upon an express waiver little difficulty is likely to arise; but in most eases the waiver is not express, but implied from the conduct of the. purchaser * * The question in each case is one of fact: Did the purchaser mean to waive, and has he actually waived, his right of examining the title? although his intention will be inferred from his acts, and no direct expression of it is required.”
When a title could not be made to a most important, although a small, part of the estate, and the seller'was in treaty to obtain a title by means of' an exchange, but the time for completing the purchase having arrived, the purchaser, after warning from the seller’s agent of what the operation of his taking possession would be, took forcible possession, and encouraged the owner of the part-wanted to ask an unreasonable consideration for it, in consequence of which the treaty for" the exchange fell through, the court held, that the purchaser had waived the objections to the want of title. Calcraft v Roebuck, 1 Ves. Jr. 221.
In this cause a contract was made between the parties, Syllabus 2. providing for deed to be made by the 1st of March after the contract was made, and possession of the farm with certain exceptions to be given at that time, and full possession to be given on the 1st of November thereafter. Jarrett knew at the time'the contract was made, that [241]*241Johnston had an ejectment suit pending to recovera few acres of ground, which he claimed Belonged to the land,' but of which of course he was not certain, as it was a question as to where the line ran. Jarrett knew, at the time he accepted the deed of general warranty on the 4th of February, 1871, from Johnston and wife, that as the law then stood, he had put it out of the power' of Johnston to prosecute the ejectment suit, and recover therein, as the legal title to the land was no longer in him. Johnston v. Griswold & Rogers, 8 W. Va. 240. Therefore by accepting the legal title, when he did, and thus putting it out of the power of Johnston to recover the land in the ejectment suit, he must be deemed to have waived his right to insist upon Johnston putting him in possession of the disputedjand, and was therefore not entitled to any abatement of the purchase money. By that act he plainly said, “I will take the land with this controversy pending, and take the risk of gaining or losing the land in dispute.”
There was no fraud or concealment on the part of Johnston. There was no warranty that the disputed land belonged to the “home farm and Jarrett took upon himself the burden of ascertaining, whether it was a part thereof. Of course he could use Johnston’s name in that controversy, if it was to his interest to do so. And he could now, since the passage of the Act of the Legislature February 28, 1877, do so, and might recover the land, if at all, in the name of Johnston, in the same ejectment suit. W e can give no other interpretation of the act of Jarrett in accepting this deed, with full knowledge of the pendency of the ejectment suit, than to consider it a waiver of any right to insist upon being put into possession of the few acres in dispute, as thereby he put it out of the power of Johnston to prosecute the ejectment suit, and if he recovered therein, to put Jarrett in possession of the land in dispute.
For these reasons the decree of the circuit court of Greenbrier county, rendered in this cause on the 13th [242]*242day oí November, 1876, is reversed, with costs to the appellant against the" appellee, James Jarrett; and this cause is remanded to the circuit court of Greenbrier county with instructions to enter a decree requiring Jarrett within such a reasonable tiifie, as the court may appoint, to pay to Johnston the residue of the purchase money to-wit: $300.00 with interest thereon from the 10th day of November, 1871, and the costs of said suit; and to appoint a commissioner to make sale of a sufficient portion of said land to pay the same, in the event Jarrett should fail to pay; and for further proceedings to be had in the case, according to the principles of of this opinion, and further according to equity.
The Other Judges CONCURRED.
Decree Reversed. Cause RemaNded.