The defendant in his answer admitted the sale of the (417) lots at public auction, and averred that he sold them merely as a trustee, acting under certain deeds of trust from John S. Powell, and that he set up and sold only the interest which John S. Powell had in them. He denied that he affirmed that a good and indefeasible title in fee simple would be made to the purchaser, or that he had agreed or given any assurance that he would warrant the title to the property. He also averred that the plaintiff knew the title of John S. Powell as well as the defendant did. He also averred that he had tendered to the plaintiff a deed conveying all the interest of the *Page 339 said Powell, and he was now ready to deliver the same, but had refused to execute a deed by which the defendant should bind himself in a general covenant of warranty as to the title.
Replication was entered to the answer and depositions taken. It seemed from the proofs that the defendant said at the sale of the lots that he would make a good title to the purchaser. The lots themselves were sold by the defendant, who it was well understood was the trustee of John S. Powell. It also appeared that John S. Powell had previously contracted for the purchase of the lots from the husband of a woman to whom they belonged, and had paid the purchase-money for them, but he had never received a legal title as no conveyance had been executed by the wife with the solemnities required by law for the conveyance of land by femes covert. The cause was then set for hearing, and at Spring Term, 1841, transmitted to the Supreme Court. In this case three witnesses prove that the defendant said at the sale of the lots of land mentioned in the pleadings that he could make a good title to the purchaser. The plaintiff became the purchaser and gave his bond for the purchase-money. It appears from the exhibits that there is a defect in the title to the lots, inasmuch as the deed from Mr. Smith and wife has not attached to it the certificate of the private examination of Mrs. Smith taken according to law to pass her interest. We think that it is the duty of Leach, the (418) vendor, to procure a proper deed to be executed, which will pass the fee in the said lots of land from Smith and wife. It appears that the defendant sold the lot as a trustee. The law never compels a trustee to enter into any covenants in his deed except a covenant against his own encumbrances. The demand of the plaintiff that Leach should execute to him a deed with a covenant of warranty is therefore inadmissible. The decree will be that the defendant shall, before 15 February next, procure a deed to be executed by Smith and wife to the plaintiff, which deed shall be approved by the master, sufficient in law to extinguish the title in fee in the said Smith and wife in and to the lots of land mentioned; and the cause will be retained for further directions.
PER CURIAM. Ordered accordingly. *Page 340