The opinion of the court was delivered,
by Sharswood, J.
The 1st assignment of error is to the admission in evidence of the deed of Lindsay and wife to the defendant, dated March 3d 1866, and the 7th and 8th errors to its effect when admitted. The objection was to the insufficiency of the description of the premises conveyed. “ All that certain tract or parcel of land situate in Wood county, West Virginia, located on Little Stillwell creek, between three and four miles from the Baltimore and Ohio Railroad, on the National turnpike.” The abutters on the west and north are then given, but those on the east and south are left in blank; and it then adds, “ and contains 180 acres, more or less, and now occupied by Jacob Buzzard as tenant.” Primff facie such a description was certain enough, and there was no error, therefore, in the admission of the deed. It [226]*226followed the description as contained in the article. It might have been competent to the defendant to have shown by parol evidence that it was insufficient to identify the tract, hut that would be a question subsequent to its admission : Richardson v. Stewart, 2 S. & R. 84. No such evidence was given. The 2d assignment is in overruling the defendant’s motion for judgment of nonsuit. But it is perfectly well settled, that a refusal to direct a nonsuit to be entered is not the subject of review on a writ of error: Girard v. Gettig, 2 Binn. 234; Bavington v. Pittsburg and Steubenville Railroad Co., 10 Casey 358; The United States Telegraph Co. v. Wenger, 5 P. F. Smith 262.
The 3d error assigned is to the admission of a part of the evidence of Jacob Buzzard, in which he was allowed to testify that he had received an offer for the purchase of the land in controversy, at the price of $14,000, from a responsible party, who purchased other land in the vicinity. This evidence was certainly inadmissible. If it showed the opinion of the person who made the offer, it was mere hearsay.
If the value of the land or other thing could be proved in this way, nothing would be easier than to manufacture abundance of such testimony.
The 4th, 5th, 6th, 10th, 11th and 12th assignments may be considered together. They are to answers to points, and to the charge of the learned judge below, all involving substantially the same question. One defence set up was that the plaintiff had been guilty of fraudulent misrepresentations as to the character and value of the land which was the subject-matter of the contract of sale. There was evidence that Glen. Negley, one of the defendants, after the contract had been made and signed, as agent, and on behalf of the others, had visited and examined the property. The learned judge held, and so instructed the jury, that if they found this to be so, and that Glen. Negley became acquainted, or had the opportunity of becoming acquainted with the true state of the facts, the defendants were bound to give notice to the plaintiff, within a reasonable time, of their rescission of the contract, and if they waited until after they had attempted and failed to get up an oil company to take the land, they could not avail themselves of this defence. It was decided, indeed, in Duncan v. McCullough, 4 S. & R. 487, that when a contract is in itself fraudulent, it is void, and cannot be confirmed by any subsequent declarations or acts by which its fairness is acknowledged. “ Where there has been actual and positive fraud, or the adverse party has acted malá. fide, there can be no such thing as a confirmation; what was once a fraud will always he so. The reason of the distinction is, that a contract infected with that kind of fraud, which must be proved and not presumed from the circumstances of the parties, is not merely voidable but void; [227]*227and confirmation without a new consideration would he nudum pactum.” Per Gibson, J. This decision has been recognised and affirmed in Chamberlain v. McClurg, 8 W. & S. 31; Goepp’s Appeal, 3 Harris 428; Miller’s Appeal, 6 Casey 478. Yet there are some cases not easily reconciled with this broad doctrine, as in Juniata Bank v. Brown, 5 S. & R. 234, where Chief Justice Tilghman said: “ To make a confirmation of a contract, in which a man has been defrauded, very strong facts must be shown; and, particularly, it must appear that those acts were done with full knowledge of the truth.” In Staines v. Shore, 4 Harris 200, which was the case of fraud in the sale of a horse by auction by the employment of a puffer, Chief Justice Gibson said: “Had the horse lived, in this ease, it would have been necessary to return 'or tender him to the vendor as soon as the fraud was discovered;” implying that if he was kept on hand and used by the vendee — much more, if he had tried to sell him at a greater price than he had given for him, and only on finding that he could not, offered to return him — the defence of fraud would not avail him. Judge Baldwin, who may be regarded as belonging to our own judiciary, in Blydenburg v. Welsh, Baldw. 338, held, that if, after a party has acquired a knowledge of facts tending to affect a contract with fraud, he offers to perform it, on a condition which he has no right to exact, he thereby waives the fraud and cannot set it up in an action on the contract. “ This,” said he, “ is a waiver of the objection to the contract on the ground of fraud, if he was informed of all -matters which bore upon that question; if he remained ignorant of them it is no waiver.” The authorities cited by Mr. Justice Gibson in Duncan v. McCullough, of Ardglass v. Munbaugh, 1 Vern. 237, and Wiseman v. Beake, 2 Vern. 121, are those of young heirs dealing with their expectancies, “ catching bargains,” where the contract has been held void on the ground of public policy, and as is remarked by Mr. Justice Story (1 Eq. Jur. § 337), “ the aim of the rule is chiefly directed to prevent deceit and imposition upon parents and other creditors.” Of these cases, Lord Hardwicke remarks, the same fraud attended the confirmation as the original bargain. Baugh v. Price, 1 Wilson 320, was a case of the same kind, and it is there expressly put on the ground that the contract was void as against public policy. Brooks v. Gally, 2 Atk. 34, which he also cites, can hardly be said to to support him; for it was a claim for wines and liquors furnished to a school-boy, and a note given by him for the amount, a few days after he came of age.
Of course where a contract is void on the ground of public policy, or against a statute, as the usury law, there is every reason to hold the confirmation affected with the original taint: Shelton v. Marshall, 16 Texas 344. Certain it is, that the doctrine that a contract, void on account of fraud practised on the party, [228]*228is incapable of confirmation, is not the generally received doctrine of the elementary writers: 1 Story’s Eq. Jur. 345; Addison on Contracts 273; 1 Sugden on Vendors 276; 2 Parsons on Contracts 780. But however this may be, we must now consider Duncan v. McCullough as overruled by Pearsoll v. Chapin, 8 Wright 9, in which it was expressly decided that a contract tainted with fraud may be confirmed or ratified without a new contract founded on a new consideration.
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The opinion of the court was delivered,
by Sharswood, J.
The 1st assignment of error is to the admission in evidence of the deed of Lindsay and wife to the defendant, dated March 3d 1866, and the 7th and 8th errors to its effect when admitted. The objection was to the insufficiency of the description of the premises conveyed. “ All that certain tract or parcel of land situate in Wood county, West Virginia, located on Little Stillwell creek, between three and four miles from the Baltimore and Ohio Railroad, on the National turnpike.” The abutters on the west and north are then given, but those on the east and south are left in blank; and it then adds, “ and contains 180 acres, more or less, and now occupied by Jacob Buzzard as tenant.” Primff facie such a description was certain enough, and there was no error, therefore, in the admission of the deed. It [226]*226followed the description as contained in the article. It might have been competent to the defendant to have shown by parol evidence that it was insufficient to identify the tract, hut that would be a question subsequent to its admission : Richardson v. Stewart, 2 S. & R. 84. No such evidence was given. The 2d assignment is in overruling the defendant’s motion for judgment of nonsuit. But it is perfectly well settled, that a refusal to direct a nonsuit to be entered is not the subject of review on a writ of error: Girard v. Gettig, 2 Binn. 234; Bavington v. Pittsburg and Steubenville Railroad Co., 10 Casey 358; The United States Telegraph Co. v. Wenger, 5 P. F. Smith 262.
The 3d error assigned is to the admission of a part of the evidence of Jacob Buzzard, in which he was allowed to testify that he had received an offer for the purchase of the land in controversy, at the price of $14,000, from a responsible party, who purchased other land in the vicinity. This evidence was certainly inadmissible. If it showed the opinion of the person who made the offer, it was mere hearsay.
If the value of the land or other thing could be proved in this way, nothing would be easier than to manufacture abundance of such testimony.
The 4th, 5th, 6th, 10th, 11th and 12th assignments may be considered together. They are to answers to points, and to the charge of the learned judge below, all involving substantially the same question. One defence set up was that the plaintiff had been guilty of fraudulent misrepresentations as to the character and value of the land which was the subject-matter of the contract of sale. There was evidence that Glen. Negley, one of the defendants, after the contract had been made and signed, as agent, and on behalf of the others, had visited and examined the property. The learned judge held, and so instructed the jury, that if they found this to be so, and that Glen. Negley became acquainted, or had the opportunity of becoming acquainted with the true state of the facts, the defendants were bound to give notice to the plaintiff, within a reasonable time, of their rescission of the contract, and if they waited until after they had attempted and failed to get up an oil company to take the land, they could not avail themselves of this defence. It was decided, indeed, in Duncan v. McCullough, 4 S. & R. 487, that when a contract is in itself fraudulent, it is void, and cannot be confirmed by any subsequent declarations or acts by which its fairness is acknowledged. “ Where there has been actual and positive fraud, or the adverse party has acted malá. fide, there can be no such thing as a confirmation; what was once a fraud will always he so. The reason of the distinction is, that a contract infected with that kind of fraud, which must be proved and not presumed from the circumstances of the parties, is not merely voidable but void; [227]*227and confirmation without a new consideration would he nudum pactum.” Per Gibson, J. This decision has been recognised and affirmed in Chamberlain v. McClurg, 8 W. & S. 31; Goepp’s Appeal, 3 Harris 428; Miller’s Appeal, 6 Casey 478. Yet there are some cases not easily reconciled with this broad doctrine, as in Juniata Bank v. Brown, 5 S. & R. 234, where Chief Justice Tilghman said: “ To make a confirmation of a contract, in which a man has been defrauded, very strong facts must be shown; and, particularly, it must appear that those acts were done with full knowledge of the truth.” In Staines v. Shore, 4 Harris 200, which was the case of fraud in the sale of a horse by auction by the employment of a puffer, Chief Justice Gibson said: “Had the horse lived, in this ease, it would have been necessary to return 'or tender him to the vendor as soon as the fraud was discovered;” implying that if he was kept on hand and used by the vendee — much more, if he had tried to sell him at a greater price than he had given for him, and only on finding that he could not, offered to return him — the defence of fraud would not avail him. Judge Baldwin, who may be regarded as belonging to our own judiciary, in Blydenburg v. Welsh, Baldw. 338, held, that if, after a party has acquired a knowledge of facts tending to affect a contract with fraud, he offers to perform it, on a condition which he has no right to exact, he thereby waives the fraud and cannot set it up in an action on the contract. “ This,” said he, “ is a waiver of the objection to the contract on the ground of fraud, if he was informed of all -matters which bore upon that question; if he remained ignorant of them it is no waiver.” The authorities cited by Mr. Justice Gibson in Duncan v. McCullough, of Ardglass v. Munbaugh, 1 Vern. 237, and Wiseman v. Beake, 2 Vern. 121, are those of young heirs dealing with their expectancies, “ catching bargains,” where the contract has been held void on the ground of public policy, and as is remarked by Mr. Justice Story (1 Eq. Jur. § 337), “ the aim of the rule is chiefly directed to prevent deceit and imposition upon parents and other creditors.” Of these cases, Lord Hardwicke remarks, the same fraud attended the confirmation as the original bargain. Baugh v. Price, 1 Wilson 320, was a case of the same kind, and it is there expressly put on the ground that the contract was void as against public policy. Brooks v. Gally, 2 Atk. 34, which he also cites, can hardly be said to to support him; for it was a claim for wines and liquors furnished to a school-boy, and a note given by him for the amount, a few days after he came of age.
Of course where a contract is void on the ground of public policy, or against a statute, as the usury law, there is every reason to hold the confirmation affected with the original taint: Shelton v. Marshall, 16 Texas 344. Certain it is, that the doctrine that a contract, void on account of fraud practised on the party, [228]*228is incapable of confirmation, is not the generally received doctrine of the elementary writers: 1 Story’s Eq. Jur. 345; Addison on Contracts 273; 1 Sugden on Vendors 276; 2 Parsons on Contracts 780. But however this may be, we must now consider Duncan v. McCullough as overruled by Pearsoll v. Chapin, 8 Wright 9, in which it was expressly decided that a contract tainted with fraud may be confirmed or ratified without a new contract founded on a new consideration. It is there said that he who knowingly accepts and retains any benefit under such a contract, or who uses the property acquired as his own, after the discovery of the fraud, or who does any positive act forgiving the fraud, or unduly delays claiming back his property or giving up what he received, affirms the validity of the contract; and decisions in the courts of our sister states are cited in support of these instances. To which maybe added James v. Emery, 40 N. Hamp. 348; Mason v. Bovet, 1 Denio 69; The Mattiawan Co. v. Bentley, 13 Barbour 641; Wheaton v. Baker, 14 Id. 594.
“Ratification,” says Chief Justice Lowrie, “is in general the adoption of a previously formed contract, notwithstanding a view that rendered it relatively void; and by the very nature of the act of ratification, confirmation or affirmance (all these terms are in use to express the same thing), the party confirming becomes a party to the contract, he that was not bound, becomes bound by it, and entitled to all the proper benefits of it; he accepts the consideration of the contract as a sufficient consideration for adopting it, and usually this is quite enough to support the ratification. A mere ratification cannot, of course, correct any defect in the terms of the contract. If it is in its very terms invalid for want of consideration or for any other defect, a mere ratification can add nothing to its binding force.” These principles are only a recurrence to those advanced by Lord Chancellor Hardwicke in Chesterfield v. Janssen, 2 Ves. 125, 1 Atk. 354, the result of which was, that if the original contract be illegal or usurious, no subsequent agreement or confirmation of the party can give it validity. But if it be merely against conscience, then, if the party, being fully informed of all the circumstances of it, and of the objections to it, in his own words, “with his eyes open,” voluntarily confirms it, he thereby bars himself of that relief, which he might otherwise have had in equity: 1 Fonblanque’s Eq. b. 1, ch. 2, s. 13, n. Upon the principles thus established we discover no error in the rulings of the learned judge below upon this subject.
The 9th assignment of error remains to be examined. It presents the question, whether, under the pleadings, it was incumbent on the plaintiff to prove that he had a clear, indisputable title in fee simple to the land which he contracted to sell the defendants. The form of action was debt, and not covenant, as is more usual in such cases; but it can make no difference what is the [229]*229form of action. The declaration, alleged that the plaintiff had on his part duly kept and observed the agreement, and hath at all times been ready and willing to do and perform all things required of him in and by said agreement. Besides the general pleas of non est factum and never indebted, the defendants pleaded, amongst other special pleas, that the plaintiff was not, at the date of the said agreement, and is not, seised of the said tract of land in the said declaration and agreement mentioned. This was not a plea in confession and avoidance, but a traverse of the averment in the declaration of the plaintiff’s performance and readiness to perform. This meets and satisfies those cases which appear to hold it to be necessary, at least in an action of covenant, in which there is strictly no general issue, that the plaintiff by the pleading should have notice that he would be called on to prove his title: Snevily v. Egle, 1 W. & S. 484; Martin v. Hammon, 8 Barr 270; Espy v. Anderson, 2 Harris 308; Hite v. Kier, 2 Wright 72.
I do not propose therefore to discuss this case, nor to inquire whether under the general issue of nil debet, or never indebted in this action, it was incumbent on the plaintiff to meet this proof. That under such a traverse as was put in here, it was so, is abundantly clear. In Dearth v. Williamson, 2 S. & R. 498, which was a covenant to make a lawful deed of conveyance, Chief Justice Tilghman said, “ The plaintiff was to make a lawful deed of conveyance, for which he was to receive the full value of the land. It does not appear that the plaintiff had any title whatever.” In Heron v. Hoffner, 3 Rawle 400, Mr. Justice Kennedy says: “ I apprehend that the vendor when he proceeds to recover the purchase-money, ought at least to show that he had it in his power to make a good title, because he will be bound to make it upon payment of the purchase-money. It would be gross injustice were it otherwise.” Again: In Smith v. Webster, 2 Watts, the same learned judge said: “ This action being carried on for compelling payment of the purchase-money, they (the plaintiffs) ought to have shown that they had it in their power to make an indefeasible title in fee for the land.” How can a defendant show defects in the plaintiff’s title unless it is produced to him ? It is not enough to say that he may resort to the records. He must have some clue to trace it there. Besides, there are many necessary facts as to which the records will give him no information, such as descents under the intestate laws, the death of tenants for life, and others of a similar kind. It may not be necessary for him to produce his deeds or furnish an abstract of his title before commencing his action, but surely the onus is upon him to prove his right to the purchase-money, which it is clear that he has not, unless he can convey a perfectly good title, or the vendee has specially agreed to accept only such title as he has. If this is not so, the vendee may be compelled [230]*230to pay for moonshine; and this, as Mr. Justice Kennedy says, would be gross injustice.
We think, therefore, that the learned judge below committed an error in his answer to the defendant’s 3d point, and that the plaintiff having failed to show any title to the land which he had contracted to convey, he was not entitled to recover.
Judgment reversed, and a venire facias de novo awarded.