Jesse Wilson was seized of a tract of land, and, in 1831, devised it to his wife for her life or widowhood, and after her death or marriage, to his ten children, Greenberry, George, John, Nancy, Ann, James, Corrindon, Acquilla, Parthena, and Mary, in fee, equally to be divided between them. He also bequeathed to each of his children several negroes and other chattels. The will then adds: "Should any of my children die before they have lawful heirs of their body, the property of my child that may decease shall be equally divided among my children that (297) may survive." After the death of the widow, partition was made between the children, and the three shares of John, Corrindon, and Parthena fell together, and contained, together, 291 acres — the lot of Parthena being between the other two. Corrindon Wilson purchased from John and Parthena their lots and took conveyances in fee; and in July, 1842, he contracted to sell the whole 291 acres to the plaintiff Benjamin Sadler, in fee, at the price of $583, payable December, 1845, with interest from the contract; and he then executed a conveyance accordingly and took the bond of the plaintiff Benjamin, and of the two other plaintiffs, as his sureties for the purchase money. The bill states that at the same time, the brothers Greenberry, George, and Acquilla, and the sister Ann, and her husband, H. Smith, executed to the purchaser releases and conveyances of all their interest in the land sold; and Corrindon Wilson and his brother Greenberry joined in a bond to the plaintiff Benjamin, in the penalty of $80, with condition which recites "that the said Benjamin had that day bought from the said Corrindon, a certain piece of land, situate, etc., which included a certain tract of land which the said Corrindon purchased from Parthena Wilson, and which fell to the said Parthena under the will of Jesse Wilson, and was to revert back to the heirs of Jesse Wilson's property, provided the said Parthena should die without issue, for a division among the said legatees; and Milton A. Browder, and his wife, Mary, John Wilson, James Wilson, and Thomas P. Owen and his wife, Nancy, are entitled to shares in the said lot of the said Parthena," and then obliges the obligors to cause the said Browder and wife, Owen and wife, and John and James Wilson, "to make a final relinquishment of the interest and right of the said legatees in the above mentioned parcel of land."

The bill states that Corrindon and Parthena Wilson had never been married, and that the latter was advanced in age beyond the (298) period of child-bearing. It also states that while treating for the purchase, the plaintiff had doubts whether upon the proper construction of the will the children took an absolute fee in their several shares, and that the defendant Corrindon assured him that eminent counsel had been consulted and had advised them that they did; and that as a further assurance thereof the defendant Corrindon proposed to give and did give the obligation above set forth; and that upon the faith of those declarations the plaintiff closed the contract by accepting a deed, as aforesaid, and entering into the premises, and by giving his bond for the purchase money, and also, as a further security, conveying the land to the other defendant, Bethell, as a trustee, with power to raise the money, if not punctually paid, by a sale of the premises. The bill further states that Ann Smith has not acknowledged her release upon privy examination, and that no conveyances or releases have been made by Browder and wife, Owen and wife, and John and James Wilson, or either of them; and therefore that the title is defective, and the plaintiff may be greatly injured, as he has made valuable improvements on the land, and especially if he should lose the parcel allotted to Parthena, which is so situated that without it the other two lots are of little value: that the defendant Corrindon had removed from the State, but had recently recovered a judgment at law on the bond for the purchase money, and threatened to raise the money by a sale under execution or the deed of trust.

The prayer is that the defendant Corrindon may be compelled to complete the title to all the land, if it can be done; and, if it cannot, that the whole contract be rescinded and the defendant Corrindon be compelled to take back the land and pay a reasonable sum for the outlays and improvements on it, and for general relief; and, in the (299) meanwhile, for an injunction against any proceeding to raise the purchase money.

Both of the defendants put in answers; but that of Bethell is not material to the present point. That of the other defendant admits the will of Jesse Wilson, the partition, the relative situation of the shares, the contract of sale, conveyance and releases, and the obligation from the defendant and Greenberry Wilson, as stated in the bill. It also admits that Parthena was never married and was past the age of child-bearing. But it states that both the defendant and John Wilson were married and have large families of children. The answer denies that the defendant made to the plaintiff the representation that counsel had given an opinion that under the devise the children took an absolute estate in fee, or anything to that effect. It states that, on the contrary, it was expressly understood by both parties that the title to the part allotted to Parthena was then defective, and, probably, for the want of issue, would not become good under her conveyance; and that to supply that defect in part was the purpose of the several releases of Greenberry, George, and Acquilla Wilson, and of Smith and wife; all of which were prepared by the plaintiff's son and were satisfactory to him. It further states that the other four brothers and sisters, John, James, Mary, and Nancy, resided out of the State, so that releases or conveyances from them could not be had; and that to provide and indemnity against that defect the bond in the penalty of $80 was given, in case those persons would not release or convey their several contingent interests; and the defendant states that, though he has removed from the State, Greenberry, the surety, remains here and is well able to pay the bond, or any damages which the plaintiff might sustain in the premises. He further states that finding he would probably have some difficulty with the plaintiff, he proposed to him, several months after the contract, to rescind (300) it, and that the plaintiff positively refused, alleging as the reason that he had bought a bargain and would hold on to it; and that then the plaintiff executed the deed of trust to Bethell.

Upon the filing of the bill in May, 1846, an injunction was granted as prayed for. On the coming in of the answers the defendant moved to dissolve it, which was allowed, except as to $80; and as to that sum the injunction was continued to the hearing. From that order the plaintiff was allowed an appeal.

RUFFIN, C. J.

There is no ground for rescinding the contract in respect to the whole of the tract of 291 acres, or for any greater relief than the order gives the plaintiff. The will gives no estate to the issue of testator's children; but it makes the fee of each defeasible upon his or her death before having a child, and in that event makes a limitation over to the surviving children. The fee was therefore contingent upon the birth of issue. The testator meant, if his children should have issue, that they should have the means of advancing them in their lives, and not that they should be restricted to the power of disposing of the estate, if they should leave issue at their deaths. This not only results from the terms of the limitation over, but from the consideration that it is not confined to the land, but embraces all the property bestowed by the testator on his children, without which they could make no provision for their families. As both John and Corrindon have married and had issue, as stated in the answer and to be inferred from the obligation, which only speaks of Parthena's lot, the title to those two lots had become absolute and the plaintiff got a good title to them, as he expected.

To the remaining third the title is not perfect, and from (301) present prospects only an estate for her life will be obtained under the conveyance of Parthena. What is to follow from that? Certainly, not the consequence, asked by the plaintiff, of rescinding the whole contract, nor more, we think, than allowing him a proportionable abatement of the price, or a just compensation for what he loses. It is beyond a doubt that no imposition was practiced on him. He does not pretend that he did not see the will; and he certainly did, as he says he entertained doubts of the construction. He says, indeed, that the defendant assured him that counsel had given an opinion that the children took an absolute fee. But the defendant denies making the representation; and he certainly could not have made it, for the obligation expressly recites that the title to this lot of Parthena was not good, and that it would "revert back to the heirs of Jesse Wilson's property, provided the said Parthena should die without issue." Then the plaintiff's case is, that he knowingly purchased the land with a defect in the title of one-third of it, and took a conveyance from the vendor, and at the same time took from other persons, who had a contingent interest in fee in that third after the life of the person under whom he claims, conveyances of his own preparing, for that interest, being four-ninths, in addition to that of his vendor, and took also a collateral engagement from the vendor, and a surety, that those to whom the other four-ninths belonged would convey the same. Upon that case it is manifest the purchaser cannot rescind the contract even as to that lot, but, at most, is entitled only to compensation out of the purchase money. Mr. Sugden says, indeed, that even when the contract rests in articles, if the purchaser, before executing the articles, has notice of an encumbrance which is contingent, and it is agreed that the vendor shall covenant against encumbrances, the purchaser has entered into the articles with his eyes open, and chosen his own remedy, and equity will not assist him, (302) and he cannot retain any part of the purchase money. Sug. Ven., ch. 9, sec. 6. But here the party took a conveyance from the vendor for the whole, with a separate covenant in relation to four-ninths of a third — as to which latter part alone there is a defect of title. The plaintiff has not shown his deeds, so that it may appear what covenants they contain. If they contain none, the plaintiff is clearly entitled to no relief, unless in respect of the separate obligation, because he knew of the defect and ought to have provided against it. And certainly the bond can entitle him to not more than a proper deduction at the hearing for the loss of part of the land, if to that. Indeed, the plaintiff asked in his bill for, as far as it appears in the argument, nothing less than a decree for completing the title, or putting an end to the bargain as to the whole tract of 291 acres. That last he was clearly not entitled to under the circumstances. Being obliged to keep two of the lots, it is to be presumed that it was the plaintiff's object and interest to hold as much of the intermediate lot as he could get a good title for; and it was for that reason that he did not ask to rescind the contract as to that lot alone upon the ground of losing so much as four-ninths of it. As he did not ask it, the court, of course, would not frame the decree with a view to that result. We think the court went far enough in retaining a sum which seems amply sufficient to indemnify the plaintiff. The price of the whole tract was $583, which makes the price of each lot $194.33 1/3. Hence the value of the fee in possession of four-ninths would be a little under $80. But here the purchaser has at all events an estate for the life of Parthena, which he has already enjoyed for six years; so that the sum for which the injunction was held up must, apparently, prove adequate to anything decreed, as an abatement, on the hearing. Therefore the Court is of opinion that the decree is not (303) erroneous, at least, as against the plaintiff, and ought to stand affirmed, with costs in this Court.

PER CURIAM. Affirmed.

Cited: Mills v. Abrams, 41 N.C. 462; Kelly v. Williams, 113 N.C. 438; Whitfield v. Garris, 134 N.C. 31.