The following case is made by the pleadings: Philip Beeker, the intestate of the defendant Foard, contracted to sell to the plaintiff two tracts of land lying in Davidson County, one of two hundred acres for $600, and one of fifty acres for $200 — making it all $800. He received in cash $300 and took the plaintiff's notes for the remainder of the eight hundred dollars. At the same time he executed a penal bond in the sum of $1,600, reciting the sale of the said two tracts of land, with *Page 86 a condition to make or cause to be made to the plaintiff "a good and lawful warrantee deed" for the same. The said two-hundred-acre tract had, before the date of the said bond, been devised by Henry Beeker to his son "Philip Beeker's heirs by the name of Beeker," and the said Philip Beeker was living at the time the said will took effect and had at the same time seven children, all of whom were infants at the time of the bringing of the suit except one. The several notes given for the remainder of the purchase money are in the possession of the defendant Foard, the administrator.
The bill alleges that the title of Philip Beeker to the tract of 200 acres is defective, and submits to take the fifty-acre tract at two hundred dollars, the price agreed on. The prayer of the bill is that the (126) contract may be rescinded so far as related to the two-hundred-acre tract; that the notes may be surrendered up to be cancelled, and that the defendant Foard be decreed to repay the money paid, after deducting the price of the fifty-acre tract. John C. Foard and the children of Philip Beeker are made defendants.
The defendants insist that the plaintiff purchased with full notice of the defect in the title, and agreed to buy his title and take the risk. There was replication and proofs taken in the cause. Set for hearing and removed to this Court. There can be no doubt that the title of the defendant Foard's intestate to the principal tract of land sold to the plaintiff was, at the time of the sale, and still is, defective. That tract was devised to Henry Beeker, the father of the intestate Philip, to his (Philip's) heirs by the name of Beeker. This was a good devise to his children of that name, though he was living at the time and took no interest in it. Ward v. Stowe, 17 N.C. 509.
There was, then, an entire failure of the consideration for the money paid and the notes given for that tract of land. No fair pretence can be made that the plaintiff was acquainted with the state of the title and intended to purchase the mere chance of getting a good one. The full price which he agreed to pay for the land, as well as the bond given by Philip Beeker to make or cause to be made to him a good and "lawful warrantee deed" for it upon payment of the purchase money, is directly opposed to such a supposition. The plaintiff is, then, clearly entitled to relief if there be no defect in the frame of this bill.
It is said in the argument here that there is a fatal defect in (127) it, to wit, that it sets out a different title which the intestate was bound to make upon the payment of the purchase money for *Page 87 the land from that which is mentioned in the bond. It is insisted that the bill alleges that the intestate was to execute a deed containing a covenant of seizin, while the bond exhibited in evidence shows that the deed was to have a covenant for quiet enjoyment only. Hence it is contended that there is a substantial variance between the allegation and the proof, and that consequently the bill must fail. If the premises be correct the conclusion is legitimate; but are they correct? We understand the statement of the bill to be different from what is assumed by the counsel. The statement is that the intestate bound himself in an obligation to make "a good and sure title in fee simple," and it then refers to the bond and prays that it may be taken as a part of the bill. If it be admitted that "a good and sure title in fee simple" is different from "a good and lawful warrantee deed to the plaintiff or his heirs," the more extended sense of the first expression is restricted by the reference to the bond which immediately follows. The apparent repugnancy between the allegation and the proof thus vanishes. But it is said further that the bill ought to state the price as specified in the bond for title. It does so, so far as we can infer any statement of the price in the bond, and that is half the penalty therein mentioned. The bill states (and in that it is sustained by the proofs and by the answer of John Beeker) that the plaintiff was to pay eight hundred dollars for the two tracts, to wit, six hundred for the larger and two hundred for the smaller.
Of this sum he paid three hundred and fifty dollars in cash, and gave his notes for the residue. No difficulty has arisen as to the smaller tract, but for the money and notes given for the other the plaintiff is entitled to relief. That relief is to have his bonds in the hands of the defendant Foard, as administrator, surrendered up and to have an account of the assets in the hands of the said administrator (128) to ascertain whether there be sufficient to satisfy his claim for the money paid, after deducting the price of the small tract.
Decree accordingly.