DARGAN, J.
In the case of Shields v. Lyon, Minor’s Rep. 278, this court decided that the certificate of the board of commissioners, confirming a claim to land under a Spanish warrant of survey, is evidence of such an estate as entitles the widow to dower under our statutes; that it was such a title as gave the party to whom it was confirmed a perfect right to call on the government for a patent, and hence the widow was entitled to dower therein. This decission was made at an early day after the organization of .our State government, and from that time until the present, it has been considered as settled law, that if the husband held such evidence of title as entitled him to, demand and receive from the government of the United States a patent for the land, his widow was entitled to dower therein. See the cases collected in Edmondson v. Montague, 14 Ala. 370. Under the treaty of 24th March 1832 between the United States and the tribe of Creek Indians, an Indian reservee was authorised to sell the land reserved to him, and if the contract of sale was ratified, and approved of by the President, the purchaser became entitled to a patent. [537]*537Chinnubbee v Nicks, 3 Porter 362. In the case of Jones & Parsons v. The Heirs of Inge, et al. 5 Porter, 327, it is said, that an Indian reservee, when the land reserved to him had been selected and set apart by location, became entitled to the possession until he had disposed of it according to the terms of the trealy, or had abandoned it; that this right of possession gave him a legal title, which a court o,f law would protect and enforce, and that his purchaser or grantee, as soon as the contract of purchase became valid, by the approval of the President, became entitled to all the estate vested in the Indian by the treaty. A purchaser from an Indian reservee, after his purchase has received the sanction of the President, becomes entitled to a patent from the Federal Government without having to perform any condition precedent to his right to demand it. If we were therefore to admit, that the contract of purchase was not the highest evidence of legal title or seizin, but that the patent, issued in pursuance of that contract, bore that evidence, yet as the contract, by the terms of the treaty, gave a perfect right to the patent, the wife of the purchaser becomes entitled to dower, after the contract of purchase made with the Indian reservee has been ratified by the President, and the issuance of the patent to her husband is not necessary to complete her right to dower, as against the heir of her husband or his assignee. Having attained this conclusion, it follows that Mrs. Freeman, the wife of John W. Freeman, who purchased from the Indian reservee, has an inchoate • right to dower in the lands, which will become perfect on the contingency of her surviving him. The contract made by Freeman was ratified by the President. After this was done he transfered the contract, but Mrs. Freeman did not release her dower. The land is therefore still charged with the bur-then of her dower.
2. The bond of the defendant stipulates for a good and lawful title, and the question is, can a purchaser, who contracts for a good title, and who relied on the representations of the vendor, that he could make such, be compelled to receive a title which is charged with an inchoate right of dower in favor of the wife of a remote vendor? To justify a court of equity in compelling a purchaser to receive a title, when he contracts for a good one, relying on the ability of his vendor [538]*538to make such, the title of the vendor should be unquestionably good, and it is said, “like Cassar’s wife,.ought even to be free from suspicon.” — 1 Sugden on Vendors, 340. A court of equity will never compel a purchaser tO' take a title, unless it could say, you can never be ousted, holding the title the vendor proposes to give you. If, however the title proposed is liable to be defeated in tlie whole or part, upon, the contingency of the survivorship of a wife of a remote vendor, or on any other contingency within the- range of probability, the court should not decree a specific' performance.. In the case of Porter v. Noyes, 2 Greenl. Rep. 22, the contract was that the vendor should make a warranty title,, free and clear' of all incumbrances, but at the time the deed was tendered, it appeared that one C. had an inchoate right of dower in. the premises:. The court considered this as an existing incumbrance that justified the vendee in refusing to. perform the contract on his part. To the same effect is the case of Clarke v. Redman, 1 Blackf. 379. — See also Judson v. Wass, 11 Johns. 525.
3. The defendant has failed to show suelva title as a court of equity will compel the complainant to accept, on account of the dower right of Mrs. Freeman, and of course the complainant may abandon the contract at any time'previous tO'thc' removal of that objection-to the defendant’s title; but-as yet, the contract is not rescinded, nor the possession abandoned. The complainant, however, offers by his bill, to rescind the contract, and claims to hold on to the land as an indemnity for the portion of the purchase money fee has paid, and the improvements made upon it. The question therefore arises whether the complainant has made out such a case as requires a court of equity actively .to interfere in Ms béhalf, and to rescind the contract for him, whilst he holds- on to- all the benefits confered by the contract, to wit, the possession and use of the land. There is a marked distinction, between rescinding a contract, and refusing to- enforce one, and it is- well settled, that a court of equity may refuse- to rescind a contract, when it would not specifically enforce it. Beck v. Simmons and Kornegay, 7 Ala. 71; Seymore v. Delaney, 3 Cowen, 530; Jackson v. Ashton, 11 Peters, 248. I have not been able to find a case where a court of equity has rescinded a contract of a sale of land, at the instance of the purchaser, while he [539]*539bolds on to the possession, unless the contract has been tainted with fraud, or- unless injury Avo.uld result to the purchaser from giving up (he possession. In the case of Young v. Harris, 2 Ala. 108, this court decreed the rescission of a contract at the suit of the vendee, who had taken and retained the possession, and also charged the land with the portion of the purchase money that had been paid, but the complainant made out a clear case of fraud. The authorities all agree, that if a purchaser has been induced by fraudulent means to> enter into-a contract, and expends money, or pays it as purchase money,: he may apply to a court of equity for a rescission and relief, without yielding up the possession. — Edwards v. McLeary, 1 Cooper’s Sel. Cases, 308; 2 Swanston, 303. Hut in the-case of Duncan v. Jeter, 5 Ala. 604, it was said in reference to the abandonment of possession, that circumstances may exist Avhich will authorise a vendee to retain it whilst he seeks-a rescission of the contract, as where the vendee was insolvent,, and Avas unable, or unwilling to make title; in such a case the possession may be retained as the only means of reimbursement; and in the case of Long, et al. v. Brown, 4 Ala. 622, this court held, that equity ought no-t to interfere between the parties although the contract be executory, where no-fraud has been practiced, but will leave them to seek the redress the law will afford, unless there be some special ground for the interposition of the court of equity.
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DARGAN, J.
In the case of Shields v. Lyon, Minor’s Rep. 278, this court decided that the certificate of the board of commissioners, confirming a claim to land under a Spanish warrant of survey, is evidence of such an estate as entitles the widow to dower under our statutes; that it was such a title as gave the party to whom it was confirmed a perfect right to call on the government for a patent, and hence the widow was entitled to dower therein. This decission was made at an early day after the organization of .our State government, and from that time until the present, it has been considered as settled law, that if the husband held such evidence of title as entitled him to, demand and receive from the government of the United States a patent for the land, his widow was entitled to dower therein. See the cases collected in Edmondson v. Montague, 14 Ala. 370. Under the treaty of 24th March 1832 between the United States and the tribe of Creek Indians, an Indian reservee was authorised to sell the land reserved to him, and if the contract of sale was ratified, and approved of by the President, the purchaser became entitled to a patent. [537]*537Chinnubbee v Nicks, 3 Porter 362. In the case of Jones & Parsons v. The Heirs of Inge, et al. 5 Porter, 327, it is said, that an Indian reservee, when the land reserved to him had been selected and set apart by location, became entitled to the possession until he had disposed of it according to the terms of the trealy, or had abandoned it; that this right of possession gave him a legal title, which a court o,f law would protect and enforce, and that his purchaser or grantee, as soon as the contract of purchase became valid, by the approval of the President, became entitled to all the estate vested in the Indian by the treaty. A purchaser from an Indian reservee, after his purchase has received the sanction of the President, becomes entitled to a patent from the Federal Government without having to perform any condition precedent to his right to demand it. If we were therefore to admit, that the contract of purchase was not the highest evidence of legal title or seizin, but that the patent, issued in pursuance of that contract, bore that evidence, yet as the contract, by the terms of the treaty, gave a perfect right to the patent, the wife of the purchaser becomes entitled to dower, after the contract of purchase made with the Indian reservee has been ratified by the President, and the issuance of the patent to her husband is not necessary to complete her right to dower, as against the heir of her husband or his assignee. Having attained this conclusion, it follows that Mrs. Freeman, the wife of John W. Freeman, who purchased from the Indian reservee, has an inchoate • right to dower in the lands, which will become perfect on the contingency of her surviving him. The contract made by Freeman was ratified by the President. After this was done he transfered the contract, but Mrs. Freeman did not release her dower. The land is therefore still charged with the bur-then of her dower.
2. The bond of the defendant stipulates for a good and lawful title, and the question is, can a purchaser, who contracts for a good title, and who relied on the representations of the vendor, that he could make such, be compelled to receive a title which is charged with an inchoate right of dower in favor of the wife of a remote vendor? To justify a court of equity in compelling a purchaser to receive a title, when he contracts for a good one, relying on the ability of his vendor [538]*538to make such, the title of the vendor should be unquestionably good, and it is said, “like Cassar’s wife,.ought even to be free from suspicon.” — 1 Sugden on Vendors, 340. A court of equity will never compel a purchaser tO' take a title, unless it could say, you can never be ousted, holding the title the vendor proposes to give you. If, however the title proposed is liable to be defeated in tlie whole or part, upon, the contingency of the survivorship of a wife of a remote vendor, or on any other contingency within the- range of probability, the court should not decree a specific' performance.. In the case of Porter v. Noyes, 2 Greenl. Rep. 22, the contract was that the vendor should make a warranty title,, free and clear' of all incumbrances, but at the time the deed was tendered, it appeared that one C. had an inchoate right of dower in. the premises:. The court considered this as an existing incumbrance that justified the vendee in refusing to. perform the contract on his part. To the same effect is the case of Clarke v. Redman, 1 Blackf. 379. — See also Judson v. Wass, 11 Johns. 525.
3. The defendant has failed to show suelva title as a court of equity will compel the complainant to accept, on account of the dower right of Mrs. Freeman, and of course the complainant may abandon the contract at any time'previous tO'thc' removal of that objection-to the defendant’s title; but-as yet, the contract is not rescinded, nor the possession abandoned. The complainant, however, offers by his bill, to rescind the contract, and claims to hold on to the land as an indemnity for the portion of the purchase money fee has paid, and the improvements made upon it. The question therefore arises whether the complainant has made out such a case as requires a court of equity actively .to interfere in Ms béhalf, and to rescind the contract for him, whilst he holds- on to- all the benefits confered by the contract, to wit, the possession and use of the land. There is a marked distinction, between rescinding a contract, and refusing to- enforce one, and it is- well settled, that a court of equity may refuse- to rescind a contract, when it would not specifically enforce it. Beck v. Simmons and Kornegay, 7 Ala. 71; Seymore v. Delaney, 3 Cowen, 530; Jackson v. Ashton, 11 Peters, 248. I have not been able to find a case where a court of equity has rescinded a contract of a sale of land, at the instance of the purchaser, while he [539]*539bolds on to the possession, unless the contract has been tainted with fraud, or- unless injury Avo.uld result to the purchaser from giving up (he possession. In the case of Young v. Harris, 2 Ala. 108, this court decreed the rescission of a contract at the suit of the vendee, who had taken and retained the possession, and also charged the land with the portion of the purchase money that had been paid, but the complainant made out a clear case of fraud. The authorities all agree, that if a purchaser has been induced by fraudulent means to> enter into-a contract, and expends money, or pays it as purchase money,: he may apply to a court of equity for a rescission and relief, without yielding up the possession. — Edwards v. McLeary, 1 Cooper’s Sel. Cases, 308; 2 Swanston, 303. Hut in the-case of Duncan v. Jeter, 5 Ala. 604, it was said in reference to the abandonment of possession, that circumstances may exist Avhich will authorise a vendee to retain it whilst he seeks-a rescission of the contract, as where the vendee was insolvent,, and Avas unable, or unwilling to make title; in such a case the possession may be retained as the only means of reimbursement; and in the case of Long, et al. v. Brown, 4 Ala. 622, this court held, that equity ought no-t to interfere between the parties although the contract be executory, where no-fraud has been practiced, but will leave them to seek the redress the law will afford, unless there be some special ground for the interposition of the court of equity. Governed by these authorities, as the complainant yet retains the possession of the land, and derives all the benefits contemplated by the contract, he must show some other reason for the interference of the court in his behalf, than the mere dry legad right he has by the terms of the contract, to abandon it ora his part. In addition to showing that the contract could not be specifically enforced, he must either show fraud, or that injury would result to him from the insolvency of the vendor. If neither of these circumstances be shown, Avemust leave him to-exercise his legal rights as he may see fit. The bill,, ansAver and: proofs, in our opinion, entirely fail to- sIioav either fraud or insolvency on the part of the vendor, and Ave therefore must decline to interfere for the purpose of rescinding the contract.
It is, however, contended, that as the vendor resides in Georgia, that this is a sufficient reason to justify the court in re[540]*540scinding the contract. In this we cannot agree with the defendant’s counsel. The vendor resided in Georgia at the time of the purchase, and this was known to the complainant — he still resides there, and is shown to be solvent; he has not been guilty of any fraud, and the only defect in his title, is an inchoate right to dower in the wife of a remote vendor, whose husband is still living. Under such circumstances, a court of equity should not be active in rescinding the contract, but should leave the complainant to the exercise of his legal rights. We have not noticed the question of dower in the wives of the other vendors, through whom the defendant claims title, because two of them have released their right of dower, if any they ever had, and we think Mrs. Chappell is barred of her right by the provisions of her husband’s will, as it is shown that she has not dissented from it, but has received the lands and other property devised to her. It is true, that it is frequently a difficult question to determine when a widow shall be put to her election between her right of dower and the provision made for her by the will of her husband, but I think she would be when her claim to dower would disturb the devise, or be inconsistent with her own title as devisee, as well as the title of other devisees. For instance, if the land be devised to be equally divided between the wife and children, she cannot hold her share as devisee and also from the same land claim dower, but she is put to her election, either to take as doweress or as devisee. This is the character of the will of Chappell, and although it is not expressed in totidem verbis, that the provision for his wife was intended in lieu of dower, yet he could not have intended that she should claim her dower out of the lands he devised and also claim her portion as devisee.
This concludes our examination of all the questions presented by the briefs and argument of counsel, and the result of our opinion is, that the chancellor erred in decreeing a rescission of the contract. He should have declined to interfere. We must therefore reverse his decree, and render a decree dismissing the bill.
Chilton, J., not sitting.