OPINION. The opinion in this case was filed on September 22, 1910, but held up on petition for rehearing until
March 15, 1911. The opinion of the Court was delivered by It will not be necessary, to consider the exceptions in detail, as the questions presented by them, *Page 138 are dependent upon a few well settled principles of law and equity.
When negotiations for the sale of land, culminated in an executed contract, by delivery of the deed, and payment of the purchase money in full, and the purchaser thereafter discovers, that there is an outstanding paramount title to a part of the land, he may elect to pursue one of the following remedies against his vendor: (1) he may bring an action for rescission of the contract, or (2) he may sue to recover damages for fraud, Welborn v. Dixon, 70 S.C. 108,49 S.E. 232, or (3) he may sue upon the covenants of warranty in his deed.
The first question that will be considered is whether there was error on the part of the Circuit Judge, in ruling, that the plaintiffs were not entitled to a rescission of the contract.
"While a purchaser of land remains in quiet possession thereof, he cannot sustain a bill for a rescission or abatement of price, on the ground of an outstanding title, unless on the score of fraud." Lessly v. Bowie, 27 S.C. 193,3 S.E. 199; Whitworth v. Stuckey, 1 Rich. Eq. 404; VanLew v. Parr, 2 Rich. Eq. 350; Childs v. Alexander, 22 S.C. 185;Latimer v. Wharton, 41 S.C. 508, 19 S.E. 855;Nathans v. Steinmeyer, 57 S.C. 386, 35 S.E. 733; Diseker v. Eau Claire, 86 S.C. 281.
The reasons for the rule are stated in Whitworth v.Stuckey, supra, and quoted with approval in Nathans v.Steinmeyer, supra. Turning to the complaint we find that it does not allege fraud, on the contrary the master ruled that intentional misrepresentation is not charged, and from his ruling there was no appeal.
And the testimony shows that the plaintiffs, have such possession of all the lands conveyed, as the law recognizes and which would ripen into a title by adverse possession, if continued for ten years. Code, section 102; Massey v.Duren, 3 S.C. 34. *Page 139
The testimony is to the effect, that the plaintiffs entered into possession of the land, upon the delivery of the deed and have exercised general acts of ownership, such as paying the taxes, collecting the rents, making repairs and improvements, advertising the land for sale under the description contained in their deed for $75,000.00 with the statement that the title was first-class, and that they would make a warranty deed to the purchaser. There is no testimony tending to show that the plaintiffs have been evicted or even disturbed in their possession. The exceptions raising this question must, therefore, be overruled.
Even if this could be regarded as an action for damages founded on fraud, they could not be recovered as fraud is not alleged. Nor, if it could be regarded as an action upon the covenants of warranty in the deed, the plaintiffs could not recover any portion of the purchase money, as fraud is not alleged and there has not been an eviction.
Judgment affirmed.