This suit is upon a note of .the defendants, the consideration of which is a bond given by the .plaintiff, con*349ditioned to convey a tract of land therein described to them upon their payment of certain notes specified in the bond.
The bond alleges that “ said Freeman Coburn is possessed and seized in fee of a certain tract or parcel of land situated in Greene, aforesaid, bounded as follows,” &c., then giving the boundaries. In fact, however, the plaintiff was not “ possessed and seized in fee ” of the premises contracted to be conveyed, having only a bond from the legal owners, which he permitted to be forfeited before the maturity of the note in suit, but of which he afterwards obtained a renewal. It does not appear that he has now acquired the title.
The defendants seek to avoid their liability, on the ground that the plaintiff was guilty of a fraudulent misrepresentation of his title, by stating that he was “ possessed in fee ” of the premises, when he had no title thereto. A promissory note, founded on the payee’s bond to convey to the promisor land belonging to a third person, is not void for want of consideration. Trask v. Vinson, 20 Pick. 108. It is a promise for a promise, — one being the consideration of the other. “ Whether the contractor would be bound to disclose his want of title, or whether the omission to do so would be such a suppressio veri as would render the contract voidable, are questions,” observes Morton, J., “ which we are not now required to decide.”
A material misrepresentation in reference to the essentials of a contract will justify a party deceived thereby in rescinding the same.
In Trask v. Vinson, supra, the contract was “ executory, and contained no stipulation that the contractor was then seized of the estate.” In the case before us there is the express assertion, that the obligor “ is possessed and seized in fee ” of the land described in the bond.
Now for what were the defendants contracting ? Not for a lawsuit, the result of which might be a sum in damages. The contract was for the land which one was to convey, and for which the defendants were to pay. Whether the obligor had or had not a legal title was material. If he had the title, a court of equity would compel him to convey the premises upon a performance, by the defendants, *350of what was to be done and performed by them. If the obligor had no title, as he might never obtain any, all the obligees could recover would be the damages sustained, and thus the object of the party contracting for the land would be defeated. The defendants had a right to rely on the assertions of the plaintiff, as to his title, and the latter cannot complain if, finding those assertions false, they seek to avoid then* liability. Stow v. Towle, 22 Pick. 166.
The obligor, if he would tender a deed, it must be one conveying the title. To tender one conveying no title would not be deemed a performance. The title is manifestly of the essence of the contract, and a false assertion in relation thereto cannot be deemed other than material. When a vender of an estate had made a fraudulent misrepresentation of the title, the vendee is entitled, in equity, to a rescission of his contract. Harris v. Carter, 3 Stew. 233.
It was not necessary for the defendants to return their bond. They may rely on the misrepresentations of the plaintiff as a defense without returning the bond. Wyman v. Heald, 17 Maine, 329.
Plaintiff nonsuit.
Cutting, Walton, Dickerson, Barrows, and Tapley, JJ., concurred.