The opinion of the court was delivered by
Kennedy, J.The terms of the covenant, on the part of the plaintiffs below, being “ to make and execute to the defendant, his heirs and assigns, a good and sufficient deed for the said piece of ground in fee simple, with general warranty, of a clear title, and free from all incumbrances,” cannot be satisfied merely by the execution and tender of a deed of conveyance containing a covenant to that effect, when a defect in the title or an incumbrance on the estate appears or is shown to exist; because, from the language of the covenant, it is manifest that it was the intention of the parties at the time, that the title to the estate and the estate itself, should be free from all objection or defect and incumbrances at the time of the deed’s being executed. The insertion, however, of such a covenant in the deed, would doubtless be requisite for the purpose *416of protecting the purchaser from defects and incumbrances which may exist, but are not known to him. In such case, it is not necessary that the purchaser should show that the title of the seller is decidedly bad, in order to warrant the refusal of an acceptance of it. It is sufficient for him to show that it is doubtful, or attended with circumstances unknown to him at the time of the purchase, which must in all human probability involve him in a lawsuit and the expenses thereof, unless he should buy his peace by paying a very considerable sum of money. In the ordinary case of an agreement for the purchase of an estate, couched in terms much less strong than the present, merely binding the seller to make a good title to the purchaser for it, the latter cannot be compelled to accept of a doubtful title. This is the settled and invariable rule in equity on a bill for a specific performance of the contract. Morlow v. Smith, 2 P. Wms 198; Mitchell v. Neale, 2 Ves. 679; Shapland v. Smith, 1 Bro. C. C. 75; Cooper v. Denne, 4 Bro. C. C. 80; 1 Sugden on Vend. 339, 340, and. the cases there referred to. And I take it that it is also a good defence at law too, in an action brought by the vendor to compel the payment of the purchase-money as in this case. Hartley v. Penhall, Peake’s Ca. 131; Wilde v. Trout, 4 Taunt. 334. For it would be most unreasonable to make the purchaser pay the purchase-money without getting what he contracted for; such as a title free from all objection, if not suspicion. But can one be so, which, if accepted of, and the estate taken possession of under it, will, to an absolute certainty almost, involve the purchaser in a law suit? As it appears plainly that he could not have contemplated any thing of the kind in making his contract for the purchase, it would be highly unjust to force such an evil upon him.
Then what is the title which the plaintiffs below have shown for the ground sold by them to the defendant? They, as it appears, are invested with the title, or right which Theodosia Woods had to it; but she had no claim, excepting what she had acquired under the conveyance from James Ross, Henry Woods, and John M’Donald, Esqrs.; because they could only convey what they had at the time; and it is perfectly clear, that at the time they conveyed to Mrs Woods, they had no interest or authority whatever in or over the ground, excepting what was vested in them by the mortgage, which they had taken of Samuel Thompson; for, under the authority given to them by the will of their testator, they had by their deed of conveyance divested themselves of all their right and authority so acquired, and thereby invested Samuel Thompson with the fee simple estate in the ground, which remained in him, so far as it was not affected by the mortgage. The mortgage, however, in lato, merely stripped Thompson of the legal title; but in equity, it being considered a security simply for the payment of the debt mentioned in it, he still continued'to be the owner of the ground in fee; and the judgment of Gano, as soon as obtained, became a lien upon it as such, subject, however, to the prior lien created by the mortgage. *417Thus it appears that the plaintiffs below, being the assignees of Mrs Woods, can, at most, independently of the circumstance of Mr Ross having purchased all the estate and interest of.Samuel Thompson in the ground at sheriff’s sale; under the Gapo judgment, be considered as the assignees of the mortgage given by Thompson, and entitled as such to hold the possession merely of the ground, for that was all that was in reality regained by Messrs Ross, Woods and M’Donald, in their action of ejectment against him, until they are paid the amount of the mortgage-debt, with interest thereon, during the time that Thompson had the possession. It was certainly a mistake in those gentlemen to recite in their deed of conveyance to Mrs Woods, that they had by their proceeding in the action of ejectment regained the title; for the title to the freehold, or fee in the ground, was in nowise affected thereby: it remained as it did before, without any change; it was the possession alone that was regained and changed by the recovery in the ejectment, which had no effect whatever in foreclosing the mortgagor’s right to redeem the estate. But it is said, as Mr Ross became invested by his purchase at the sheriff’s sale with all Thompson’s interest and estate in the ground, that his purchase thereof enured, under his covenant contained in the deed made to Mrs Woods, to her benefit, and passed to the plaintiffs below as her assigns: that it would be an infraction of his covenant to attempt to claim the ground as his right; and hence he would be estopped thereby from doing so. But as it appears that a considerable portion of the money paid by Mr Ross for the ground, on the sheriff’s sale thereof, was actually paid by him out of his own pocket, it is therefore most probable that he will, if he. has not already, assert his right acquired under the sale, and be unwilling to give it up, without being reimbursed at least the amount of the money so paid out, with interest-thereon. Now it maybe, that Mr Ross, under the liberal construction given to covenants for title in the case of Butler v. Swinnerton, Palm. 339; S. C. Cro. Jac. 657; and the principle established in Hurd v. Fletcher, Doug. 43, and recognized in Evans v. Vaughan, 4 Barn. & Cress. 261; S. C. 10 Eng. Com. Law Rep., may be precluded from claiming the ground in question, even if he were to tender to the plaintiffs below the amount of the mortgage-debt,.with the interest thereon, as it might be thought to be a claim derived “ through himself,” which would be in opposition to his covenant contained in the deed made by him and the other gentlemen to .Mrs Woods. But it must be observed that, although Mr Ross being no party to this action, has had no opportunity of being heard on the subject of his right or claim, and therefore would not be bound or concluded by any decision which we would make here in regard to his right, yet it is obvious, if we were to come to a conclusion against his right, and it should happen to be erroneous, that it might prejudice him, perhaps, hereafter, so far as to defeat his right altogether in a future action brought by him to enforce it. The'right, therefore, of a third per*418son, brought collaterally' into view, as his is here, ought not to be passed on by the court, when he cannot be heard in defence of it, especially where any doubt or difficulty arises in regard to it, excepting when it is indispensably requisite to do so, in order to settle and determine the issue between the parties to the action. But here we think such necessity does not exist: for the claim of Mr Ross against the title or right of the plaintiffs below presents a question, perhaps, somewhat new here, and suchas will certainly be attended with an expense, and perhaps some risk, to have it settled, which the plaintiffs below, according to their agreement with the defendant for the sale of the ground in question, have no right to impose on him. We, therefore, without deciding upon Mr Ross’s claim, reverse the judgment rendered for the plaintiffs below, and direct judgment to be entered, on the case stated, for the defendant.
Judgment reversed, and judgment for the defendant.