(414) On the trial the plaintiff produced a bill in equity filed by one Thomas Overton, against the plaintiff and defendant, whereby he prayed a conveyance of the same land on the ground of a prior contract for the sale of it by the present defendant to him, upon which he had paid a part of the purchase money; and also a decree in that suit by which he (the plaintiff) was directed to convey the bargained and sold premises, and give possession thereof to Overton. It appeared from the plaintiff's answer to Overton's bill, and from testimony in this cause, that he had full notice of Overton's equity when he received the deed which contained the covenant on which this suit was brought.
The counsel for the defendant requested the judge to instruct the jury that if they believed the plaintiff had notice of *Page 273 Overton's equity when he purchased, he was only entitled to nominal damages. But his Honor, Judge Daniel, refused to give these instructions; on the contrary, he informed the jury that the decree was equivalent to an eviction under a judgment in ejectment, and that the plaintiff was entitled to a verdict for his purchase money, with interest from the time he surrendered the possession in obedience to the decree.
A verdict being returned according to the charge, the defendant appealed. It is true in this case that the plaintiff had notice of Overton's claim to the land; but the defendant had a much better knowledge of its nature. It is not very likely that if the plaintiff had had a full knowledge of the extent of the claim, he would have laid out his money in the purchase. But if the defendant, with the knowledge he had, thinks proper to sell the land, warrant the title of it, and receive the purchase money, it is then but just that when the plaintiff lost the land in consequence of the defendant's having contracted to sell to Overton, that he should refund the purchase money with interest, as the judge, in my opinion, very properly instructed the (415) jury.
It is true, the defendant conveyed the legal title to the plaintiff, but he conveyed it subject to Overton's equity, and the decree by which he lost it was tantamount to an eviction by process of law. I think the rule for a new trial should be discharged.
PER CURIAM. Judgment affirmed.