ORMOND, J.
The plaintiffs in error purchased from the, defendant, Brown, a large tract of land, composed in part of a sixteenth section, and upon which there was a mill erected — " the purchase money was to be paid in three instalments, which,, were secured by promissory notes, the vendor executing a bond [626]*626with condition to make title to the land On the payment of the purchase money. The notes were transferred to the defeh-da'rits, N & H. Weed & Co. who brought suit on the noté first falling 'due, and obtained a judgment, -to enjoin which this bill Was filed.
The bill seeks to enjoin the collection of the purchase money, on the ground of fraudulent representations -in relation to the Workmanship of the mill dam — because of a mistake in the bond for -title of one of the parcels Of the land which Was essential to the enjoyment of the residue — and because-of €rO alledged inability of the vendor to make-title.
All the allegations of fraud are distinctly and positively defied in the answer, and it is insisted that the plaintiffs purchased with full knowledge of all the facts — that in regard to 'the mistake in the title bond, the defendant, Brown, neter kne w of it'Until the filing of the hill,-and is noW,and would at ail times have been willing to correct it — that as -it respects the title to the land, he believes that'he will be able to make -a good and. sufficient title uncording to his contract — or Will 'be able to 'rcs--pond in damages.
The bill 'states that the 'plaintiff in error "sold one half‘of his interest in the land to one William F. Long, and mádé an in-dorsement to that effect on the bond for title, and'it is noWCdn*-tended fha-t as William F. Long-has-died, his heirs -have such an interest in the bond, that'the mistake-can only be corrected ina Court of Chancery. Mistake is one of the heads of ■Chancery jurisdiction, and there can be no doubt that a Ooürt of'Equity-would rectify the mistake in this casebut there Ss neither reason or propriety in seeking the ¡expensive aid Of that Court, to do that which the vendor Was willing to fio voluntarily. To give a Court of'Equity jurisdiction ¡to Cnjeift -'a judgment at law, until a mistake o’f this kind could 'be ¡rectified application should have been made to the vendor to make it, and on his refusal, that Court would interfere, if necessary-, to prevent an injury from that cause. No application for its ‘correction Was made in this'case, or information .¡given thatlhe 'miátáke 'existed. There was therefore no reason either ‘for grariting, or'continuing the injunction for that cause.
iff it be triié'as'Stated, that'minors are interested in this title hbrid, it is1 not easy to see how they bottld ¡be prejudiced by [627]*627the correction of a mistake. A decisive answer, however, to the objection that the mistake could not be corrected without the interposition of a Court of Equity is, that it is a question in which the minors alone have an interest, and they could not be prejudiced by such a course, as they would not be concluded by the alteration, if fraudulently or improperly made by the adult parties to the contract.
Ip respect to the allegations of the bill of the inability of the vendor to make titles to the land, it is to be observed that a Court of Equity will not interfere between the parties to a contract, although it be executory, where no fraud has intervened, but will leave them to seek that redress for its violation which, by their contract they have stipulated for, unless t¡here exists some special ground for the interposition of a Court of Equity. Thus, Chancery will interpose where the covenants entered into by the parties are independent, and the vendor cannot make or obtain the title, and is insolvent. The ground of its interposition in such a case, is to prevent the irreparable injury which would result from the payment of the purchase money, to one who could not respond in damages for the. breach of the contract on his part.
The allegations of this bill fall far short of these requisitions. The question as to the ability of the vendor to make title to the sixteenth section will be hereafter considered, and in regard to the other portions of the tract, it is not sufficiently alledged that the vendor cannot make the title, or that failing in that he is unable to respond in damages. The allegation is, that they (the complainants,) “ have reason to fear, and do fear, that said Warner Brown is and will be wholly unable to make them title according to his contract, and they also fear he will he unable to respond to them in damages.” Allegations of this loose and indeterminate character, are wholly insufficient to warrant the interposition of Chancery. There is no, sufficient allegation of the insolvency of the vendor, and the allegations of the inability of the vendor to make or procure the title, are too loose, vague and uncertain to be the basis of any action in a Court of Chancery. So far as they are susceptible of being •answered they are all denied.
In relation to the sixteenth section, which constitutes a considerable portion of the land purchased, it is supposed that the [628]*628vendor never can make a good title; because, first, there was no power to sell the land, existing either in the Legislature or in the township, and that the sale was therefore a nullity; and, secondly, if such power existed it was improperly exercised, as the act ol the Legislature did not require the assent of all the inhabitants of the township.
From the vast number of sales which have been made under the sanction of this law, this question is invested with great interest, and has received our deliberate consideration.
The propriety of reserving a portion of the public land, out of the extensive domain from which new States were in future to be created, as the means- of providing a perpetual fund for the purpose of education, early received the attention of our wisest statesman. The first time they were called to legislate upon the lands ceded by the States, was in the establishment of the “Ordinance for the government of the territory of the U. States north west of the river Ohio, in 1787. They declared by the third article of that celebrated instrument, that “ Religion, morality and knowledge, being necessary to good government, and the happiness of mankind, schools and the means of education shall be forever encouraged.” At the same time, whilst authorizing the Treasury to contract for the sale of the western lands, they required the lot No. 16, in each township to be given in perpetuity for the purposes contained in the Ordinance. [1 vol. Land Laws, 361, 362.]
By the fifth clause of the first article of “ The Articles of Agreement and Cession between the U. States and Georgia,” in 1802, by which the United States acquired the right to the territory now composing the States of Alabama and Mississippi, it was declared that the territory thus ceded should, when sufficiently populous, form a State, and be admitted into the Union “ with the same privileges and in the same manner as is provided in the ordinance of Congress of 13th July, 1787, which ordinance shall in all its parts extend to the territory contained in the present act of cession, that article only excepted which forbids slavery.
The act of Congress of 2d March, 1819, for the admission of Alabama into the Union, declares, “that the section numbered sixteen in every township, and when such section has been sold, granted or disposed of, other lands equivalent thereto, [629]
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ORMOND, J.
The plaintiffs in error purchased from the, defendant, Brown, a large tract of land, composed in part of a sixteenth section, and upon which there was a mill erected — " the purchase money was to be paid in three instalments, which,, were secured by promissory notes, the vendor executing a bond [626]*626with condition to make title to the land On the payment of the purchase money. The notes were transferred to the defeh-da'rits, N & H. Weed & Co. who brought suit on the noté first falling 'due, and obtained a judgment, -to enjoin which this bill Was filed.
The bill seeks to enjoin the collection of the purchase money, on the ground of fraudulent representations -in relation to the Workmanship of the mill dam — because of a mistake in the bond for -title of one of the parcels Of the land which Was essential to the enjoyment of the residue — and because-of €rO alledged inability of the vendor to make-title.
All the allegations of fraud are distinctly and positively defied in the answer, and it is insisted that the plaintiffs purchased with full knowledge of all the facts — that in regard to 'the mistake in the title bond, the defendant, Brown, neter kne w of it'Until the filing of the hill,-and is noW,and would at ail times have been willing to correct it — that as -it respects the title to the land, he believes that'he will be able to make -a good and. sufficient title uncording to his contract — or Will 'be able to 'rcs--pond in damages.
The bill 'states that the 'plaintiff in error "sold one half‘of his interest in the land to one William F. Long, and mádé an in-dorsement to that effect on the bond for title, and'it is noWCdn*-tended fha-t as William F. Long-has-died, his heirs -have such an interest in the bond, that'the mistake-can only be corrected ina Court of Chancery. Mistake is one of the heads of ■Chancery jurisdiction, and there can be no doubt that a Ooürt of'Equity-would rectify the mistake in this casebut there Ss neither reason or propriety in seeking the ¡expensive aid Of that Court, to do that which the vendor Was willing to fio voluntarily. To give a Court of'Equity jurisdiction ¡to Cnjeift -'a judgment at law, until a mistake o’f this kind could 'be ¡rectified application should have been made to the vendor to make it, and on his refusal, that Court would interfere, if necessary-, to prevent an injury from that cause. No application for its ‘correction Was made in this'case, or information .¡given thatlhe 'miátáke 'existed. There was therefore no reason either ‘for grariting, or'continuing the injunction for that cause.
iff it be triié'as'Stated, that'minors are interested in this title hbrid, it is1 not easy to see how they bottld ¡be prejudiced by [627]*627the correction of a mistake. A decisive answer, however, to the objection that the mistake could not be corrected without the interposition of a Court of Equity is, that it is a question in which the minors alone have an interest, and they could not be prejudiced by such a course, as they would not be concluded by the alteration, if fraudulently or improperly made by the adult parties to the contract.
Ip respect to the allegations of the bill of the inability of the vendor to make titles to the land, it is to be observed that a Court of Equity will not interfere between the parties to a contract, although it be executory, where no fraud has intervened, but will leave them to seek that redress for its violation which, by their contract they have stipulated for, unless t¡here exists some special ground for the interposition of a Court of Equity. Thus, Chancery will interpose where the covenants entered into by the parties are independent, and the vendor cannot make or obtain the title, and is insolvent. The ground of its interposition in such a case, is to prevent the irreparable injury which would result from the payment of the purchase money, to one who could not respond in damages for the. breach of the contract on his part.
The allegations of this bill fall far short of these requisitions. The question as to the ability of the vendor to make title to the sixteenth section will be hereafter considered, and in regard to the other portions of the tract, it is not sufficiently alledged that the vendor cannot make the title, or that failing in that he is unable to respond in damages. The allegation is, that they (the complainants,) “ have reason to fear, and do fear, that said Warner Brown is and will be wholly unable to make them title according to his contract, and they also fear he will he unable to respond to them in damages.” Allegations of this loose and indeterminate character, are wholly insufficient to warrant the interposition of Chancery. There is no, sufficient allegation of the insolvency of the vendor, and the allegations of the inability of the vendor to make or procure the title, are too loose, vague and uncertain to be the basis of any action in a Court of Chancery. So far as they are susceptible of being •answered they are all denied.
In relation to the sixteenth section, which constitutes a considerable portion of the land purchased, it is supposed that the [628]*628vendor never can make a good title; because, first, there was no power to sell the land, existing either in the Legislature or in the township, and that the sale was therefore a nullity; and, secondly, if such power existed it was improperly exercised, as the act ol the Legislature did not require the assent of all the inhabitants of the township.
From the vast number of sales which have been made under the sanction of this law, this question is invested with great interest, and has received our deliberate consideration.
The propriety of reserving a portion of the public land, out of the extensive domain from which new States were in future to be created, as the means- of providing a perpetual fund for the purpose of education, early received the attention of our wisest statesman. The first time they were called to legislate upon the lands ceded by the States, was in the establishment of the “Ordinance for the government of the territory of the U. States north west of the river Ohio, in 1787. They declared by the third article of that celebrated instrument, that “ Religion, morality and knowledge, being necessary to good government, and the happiness of mankind, schools and the means of education shall be forever encouraged.” At the same time, whilst authorizing the Treasury to contract for the sale of the western lands, they required the lot No. 16, in each township to be given in perpetuity for the purposes contained in the Ordinance. [1 vol. Land Laws, 361, 362.]
By the fifth clause of the first article of “ The Articles of Agreement and Cession between the U. States and Georgia,” in 1802, by which the United States acquired the right to the territory now composing the States of Alabama and Mississippi, it was declared that the territory thus ceded should, when sufficiently populous, form a State, and be admitted into the Union “ with the same privileges and in the same manner as is provided in the ordinance of Congress of 13th July, 1787, which ordinance shall in all its parts extend to the territory contained in the present act of cession, that article only excepted which forbids slavery.
The act of Congress of 2d March, 1819, for the admission of Alabama into the Union, declares, “that the section numbered sixteen in every township, and when such section has been sold, granted or disposed of, other lands equivalent thereto, [629]*629and most contiguous to the same, shall be granted to the inhabitants of such township for the use of schools.”
This grant by Congress cannot properly be called a donation; it was the performance merely of a solemn obligation created by the compact with Georgia, and was intended as'a grant to(the State, to be held in perpetuity for the use and benefit of the inhabitants of the township. The legal title to these lands, could not vest in the' inhabitants of the township, as they had no corporate existence, nor could such a capacity be conferred on them'by the act of Congress; and it is very certain was not intended to be conferred. Nor can any doubt be entertained that the legal title was intended to be vested by the act of Congress in this State, and did so vest, by the acceptance of the conditions proposed by the act of 2d March, 1819, by the convention of this State, in August of the same year.
By the acceptance of this trust, the State impliedly stipulated to do those acts which were necessary to give full effect to the grant, and this trust it has faithfully executed. As early as 1819 agents were appointed to take care of the lands, and subsequently school commissioners were appointed, and trustees required to be elected by the township for the management of the sixteenth section in each township, who were declared a body corporate.
As the land in its wild state was of no benefit to the people of the township, and as a revenue could only be derived from it by cultivation, the lands were leased under suitable provisions to preserve them from waste. It was soon, however, discovered that this process would end in the destruction of the ■land; every where the sixteenth section was in a state of ruinous dilapidation. In this condition of things, application was made to Congress, by the Legislature of this State, for leave to authorize the sale of the sixteenth section, by the assent of the township, which was granted — the proceeds of the sale to be invested in some productive fund. f
We agree entirely with the counsel for the plaintiff in error,, that this act conferred no power; nor had Congress any right whatever to interfere in the matter. It is, however, evidence of the strong desire of the Legislature to act in good faith, and to keep within the pale of the law. Having thus obtained the assent of Congress, the Legislature passed an act authorizing [630]*630the sale of the sixteenth section in each township, with the assent of the inhabitants, the proceeds to be placed in one of the Banks of the State, and to carry interest at the rate of six -per cent per annum, payable quarterly, and secured to the people of the township whose lands were thus sold.
It is very clear that power must exist somewhere to control the subject of the grant, so as to make it subserve the purpose it was designed for. The State very properly supposed that this power was lodged with the inhabitants of the respective townships ; a majority were therefore authorized to act, and if in their opinion a sale of the land was advisable, to make sale thereof. The whole scope and design of the law is merely to give the assent of the State to such sale, and by providing the necessary machinery to carry out in action the wishes of the township, and at the same time afford the inhabitants a guaranty, that the principal of the proceeds of such sale should be forever kept inviolate, for the benefit of posterity, and the annual interest ouly be consumed by the existing generation.
The act authorizing these sales, passed in 1828, requires the assent of the inhabitants of the township to such sale, to be ascertained by taking the vote of the qualified electors resident in the township, a majority of whom voting in the affirmative was necessary to a sale. It is denied by the counsel for the plaintiff in error, that the assent of a majority of the electors, of the township, is the assent of a majority of the inhabitants, which term he insists means householders, and includes females as well as males. [Tomlin’s Law Die. Title, Inhabitant.]
The popular meaning of the term inhabitant is, a resident or dweller in a place, in opposition to a mere sojourner or transient person; [1 Bouv. Law Dic. 504; Webster’s Die.] and such, beyond all doubt, was the meaning of the act of Congress. In this sense then, the aggregate mass of the people, men, women and children, resident in the township are the inhabitants to whom this grant is made in perpetuity. How then is the land to be sold and converted into money, if it becomes obvious that a sale is necessary to prevent the destruction of the fund ; must the assent of every one of the inhabitants be obtained, as a prerequisite; or may not the assent of a .majority of those to whom, from their sex and age, the politi[631]*631cal interests of the country are confided, be considered as a fair exponent of the wishes of a majority of all the inhabitants? We are of that opinion ; to obtain the assent of all, or even the opinion of all, would be impracticable.
It is the established law, that in the case of a corporation aggregate, the opinion of a majority binds the whole, and it is ■quite obvious, from the diversified opinions of men on all subjects, that in all matters in which the entire mass are interested, the majority must govern the minority; and were it otherwise, civil government would be at an end. From the necessity of the case, therefore, a majority of the inhabitants must be permitted to act for all; and we think the Legislature acted wisely in considering that the consent of all the inhabitants might be fairly implied from the consent of a majority of the qualified electors, as it is impossible to suppose that the interest of a majority of the qualified electors of any township, is not identical with the interest of a majority of the inhabitants of the same township.
We are' therefore clearly of opinion, that the grant of sixteenth sections is in perpetuity to the inhabitants of the respective townships — that the legal title to the land is in the State, jp trust for the inhabitants of the respective townships, in which the land is situated — and that a sale of the land, pursuant to the act of the Legislature is valid and binding on the inhabitants of the township.
We are not called on in this case, to determine whether the sale of the sixteenth section in this instance was regular.; -or if irregular, whether such defect was not waived by the town-ship if it acquiesced therein, and received the interest of the ¡proceeds of the sale — or, lastly, whether all -inquiry into the regularity of the sale would not be concluded by ¡the issuance of ¡the patent.
It was not improper to entertain the motion -to dissolve the injunction, on-the answer of Brown alone, as there is no’.allegation in the bill that the other defendants ha-ve any knowledge whatever of the facts constituting the supposed 'equity of the bill, and, indeed, the contrary is shown by the bill itself.
■Nor did the-Court err in refusing permission to ¡the plaintiff •in error to read affidavits in support of the bill. It is perfectly well settled, both in England and this country, 'that, upon :a [632]*632motion to dissolve an injunction, affidavits cannot be received, either to support or contradict the answer, with the single exception of waste, where the injury would be irreparable. All other cases are provided for in this State by the bond of the defendant, which will be a sufficient guaranty. [8 Vesey, Jr. 35; 1 John. Ch. 211, 444 ; 2 id. 202.]
Let the decree of the Chancellor dissolving the injunction be affirmed.