— The argument of the counsel for the defendant in error, is, that the plaintiff in error is not entitled to a decree rescinding the contract, because he has not been evicted, nor abandoned the possession of the land. The decisions of this Court are uniform on this subject, when the question has arisen at law — that the vendee, while he retains the possession, cannot refuse to pay the purchase money; otherwise, it might *111happen, that he would get the land without paying for it, as a Court of law, could exact no conditions from him, as the price of affording its aid. But in a Court of Chancery, where the rights of the parties can be accurately adjusted, no reason is perceived why the vendee, who has been induced, by the fraudulent representations of the vendor, to invest his money in the purchase of land, should be required, as a prerequisite to relief in equity, to relinquish the possession of the land, and with it, it may be, his only hope of reimbursing himself. This point has not before been presented in this Court; but we hesitate not to say, that where one by the fraudulent silence, or fraudulent representations of another, in relation to material facts concerning the title of land, the falsehood of which he had not the means of ascertaining, and could not have ascertained by reasonable diligence, is induced to invest his money in the purchase of land, or has made on the faith of such purchase, valuable and lasting improvements, he can have relief in Chancery before an eviction, and without abandonment of the possession.
This point was thus ruled, in the case of Edwards v. McLeay, 1 Cooper Select Cases, 308. That was the sale of a dwelling house in Clapham, in which it was afterwards discovered, that the coach house and stables, a part of the Court and driving way leading up to the house, were situate on Clap-ham Common. The vendor knew of this defect in the title of the premises, and did not disclose it to the vendor. The bill was filed for the purpose of setting aside the sale, and getting back the purchase money. Sir William Plumer, the Master of the Rolls, in the course of his able opinion, says : “ Whether it would be a fraud to offer, as good, a title which the vendor knew to be defective in point of law, it is not necessary now to determine ; but if he knows and conceals a fact material to the validity of the title, I am not aware of any principle on which relief can be refused to the purchaser.” What then is the case made by this plaintiff? He asserts, that the vendors knew that the part in question, was an enclosure from the Common; that they did not disclose the fact to him, and that he could not discover it from the abstract. He also" asserts, that this part of the purchased premises, is material to the con*112venient enjoyment of the rest. The defendants admit they did make such a representation as is stated, with respect to the whole of the premises, they denying that any part of the premises is on the common; and, if such is the fact, deny their knowledge of it.”
An examination of the evidence having resulted in satisfying the Master of the Rolls, that the facts were as stated in the bill, he proceeds to say, “ the only other objection the defendants make to the relief sought by the bill, is, that the plaintiff is premature in his application, inasmuch as he has not yet been evicted, and may, perhaps, never be evicted. But I apprehend that a Court of equity has quite ground enough to stand upon, and that it ought now to relieve the plaintiff from the consequences of the fraud practiced upon him.” He answers the objection, that the Commoners were barred, and that the Lord might never assert his right, by saying, “ though the Lord may never assert his right, is the plaintiff to be compelled to remain for twenty-five years longer in a state, of uncertainty, whether on any day during that period, he may not have the convenience of his habitation entirely destroyed ? I apprehend that the Court is bound to relieve him from that state of hazard into which the misrepresentations of the defendant has brought him.”
Lord Eldon, on appeal, affirmed the decree. He said, “ he knew of no such decision, but that if one party makes a representation which he knows to be false, the falsehood of which the other party has no means of ascertaining, a Court of equity will rescind the contract. [2 Swanston’s Rep. 303.]
The case just cited, resembles this in every important particular. It was proved by the subscribing witness to the bond given for title, and who was present when the land, was sold, that, in answer to a question put by the defendant in error, i'n relation to the title, the vendor said that the titles were at his own house, where the plaintiff could get them, or see them at any time. The plaintiff was a stranger in the neighborhood; and the witnesses who were examined, and who lived in the neighborhood, did not know that the title was not in the vendor, who was in possession. The fact was, that at the time of the sale, the title to the west half of the quarter section, which *113was then sold, was in the United States, and the east half had been entered in the name of an infant son of the vendor.
It is true, that an examination of the land office would have disclosed the true state of the title : but as there Avas no fact or circumstance disclosed, which was calculated to induce a doubt of the title of the vendor, or put the plaintiff on enquiry, such extreme diligence cannot be exacted. He cannot be censured for relying on the representations of the vendor as to the title, Avhen no circumstance had transpired Avhich should have aroused his suspicions. As soon as a rumor reached him, that the vendor had not title, he examined the land office, and ascertained the fact. He then proposed to rescind the contract, on being paid the money he had paid on the contract, and on the refusal of the vendor to comply with this request, his right to apply to a Court of equity for relief, was perfect.
It was argued by the counsel for the defendants in error, that the vendor could not be called on to make title, until the period, stipulated in the bond, arrived. There might be some force in this objection, if the title had been where he could acquire it; but being in an infant, who could make no title, the vendee could not be required to wait, in a state of uncertainty, the possible event of the title being obtained when the infant attained his majority, unable in the mean time, to make Avith safety, any valuable or lasting improvement, and finally perhaps, to lose both his land and money. If a Court of Chancery has no poAver to interpose and prevent such a result as this, it must sit to very little purpose.
No notice has been taken of the fact, insisted on in argument by the plaintiff’s counsel, that the west half of the quarter section, Avas, in fact, purchased from the United States, Avith the money paid by the plaintiff on the contract, as it does not affect the result.
Nor is it material, Avhether the defendant, Younge, had notice of the facts, when he took an assignment of the note for four hundred dollars from the vendor,, as he is affected by any equity Avhich exists against bis assignor.
The decree of the Court below, therefore, dismissing the bill, is reversed, and this Court proceeding to render such decree as the Court beloAV should have rendered, hereby order, ad*114judge and decree, that a reference be made to the master, to state an account between the parties, allowing the complainant interest on the money paid, and a suitable allowance for valuable and lasting improvements, made by him on the premises, and charging him with the value of the use and occupation of the land. That the west half of the quarter section, described in the bill, be sold, and that the complainant be paid out of the proceeds; and if the sale does not yield a sufficient sum, the residue to bo paid by the estate .of the vendor. That the notes for four hundred dollars, and two hundred dollars given by the complainant on the purchase of the land, be delivered up and cancelled; and that the complainant have a lien on the west half of the quarter section, for the money paid by him.
Let the cause be remanded for further proceedings, in conformity with this decree.