The object of the bill is, to obtain the title to sixty-two acres of land, part of a large tract purchased by the defendant in error, of Moore, which it is alledged, was fraudulently omitted, both in the memorandum of the sale, and in the deed subsequently executed.
It appears from the record, that Moore offered for sale, his tract of land, in Ashburn Cove, in Jackson county, including the lands purchased of the heirs of Daniel McDuff, containing about nine hundred and eighty acres. It is admitted by Moore, in his answer, that he had offered the land to Clay at some time previous to the consummation of the contract, and as appears from the testimony of Jordan, Clay, at the instance and by the request of Moore, to whom Jordan had been sent by Moore for that purpose, appointed a day for the examination of the land.
Clay accordingly went, accompanied by W. Brandon, but as it appears, having some distrust of Moore, did not ask him to show him the lands, but got Mr. Gurley, one of Moore’s neighbors, who knew the land, to aid him in the examination. Gurley accordingly showed him all the land, including the sixty-two acres in dispute. The next morning the parties met at Gurley’s house, and upon making an estimate, Clay remarked to Moore, that there was not as much land as he expected, to which Moore replied, “well, it is worth as much as I asked you for it,” whereupon Clay agreed to take it, and the writings were executed, enumerating each particular piece, of which the entire tract was composed, but leaving out the sixty-two acres.
There can be no doubt whatever, that Clay supposed he was *748purchasing the entire tract, which had been offered to him, and which he had examined, of which this sixty-two acres comprised a part. It is equally as certain, that Moore knew when the contract was made, that Clay was acting under a mistake, as to the sixty-two acres, and did not undeceive him. This appears, not only from the circumstances, attending the transaction, but explicitly from the proof, without considering the admission made by Moore, upon the proposed reference to arbitration. The evidence of Taylor, and Chambliss, proves that Moore knew of the mistake of Clay, and that he assigned as a reason for not undeceiving him, that Clay had distrusted him, and had procured others to aid him in the examination of the land, and considered the deception a good joke.
This conduct is wholly indefensible in morals, and the question is, whether in the estimation of a Court of Chancery, it is a fraud. Fraud in its broadest sense, consists in the assertion of a falsehood, or in the suppression of the truth. The latter branch of this definition, is much more difficult of application, than the first, from the narrow boundary, which frequently separates cases of conscience, from questions of law. Motives, which address themselves to the honor of the party, from those acts, and omissions which the law can redress.
This topic has frequently been under discussion in this Court. In Camp v. Camp, 2 Ala. Rep. 636, after an examination of this principle, it is said, “ But the law is not so destitute of morality, as not to require each of the contracting parties to disclose to the other, all the material facts of which he has knowledge, and of which he knows the other to be ignorant, unless they are open to common observation ¿ and not to forbid any intentional concealment, or suppression of the material facts necessary to be known, and to which the other party has not equal access, or means of ascertainment.” So in Steele v. Kinkle & Lehr, 3 Ala. Rep. 357, it is said, a fraudulent concealment, is the failure to disclose a material fact, which the vendor knows himself, which he has a right to presume the person he is dealing with is ignorant of, and of the existence of which the other party cannot by ordinary diligence, become acquainted.” Mr. Justice Story, in his work on Equity, 213, § 204, thus defines it — “ The case must amount to the suppression of facts, which one party under the circumstances, is bound *749in conscience and duty to disclose to the other party, and in respect to which, he cannot innocently be silent.”
It is perfectly clear, that Moore was aware that Clay was ignorant of the fact, that in putting down the several parcels of which the tract was composed, he had left out the sixty-two acres. His attention was drawn to it, by the surprise expressed by Clay of the diminution in the quantity. This expression on the part of Clay, had reference to the previous conversation of the parties about the purchase of the land, and instead of informing him of the true state of the case, that his representation was correct, but that he, Clay, had omitted one of the parcels, he makes a remark, the direct tendency of which was to mislead, and throw him off his guard — that the land was, nevertheless, worth what he asked for it. The plain and evident meaning of which is, although I' may have over estimated the number of acres in the tract, it is worth what I ask for it. Clay being of that opinion, and being willing to give the price asked for the land he had examined, concluded the bargain. It is important to consider, that this was not a sale by the acre, but at a gross price. The precise number of acres of which it consisted, was not therefore a matter of vital importance to be known.
This conduct on the part of Moore, appears to be the “ industrious concealment,” spoken of in the books — it was a resort to artifice to throw the other party off his guard, and'prevent the true state of the case from being known, and approaches very near, if it is not in fact, the assertion of a falsehood. For the answer of Moore to Clay’s remark, was intended to be understood, in a different sense from what was really the truth, as he knew at the time that the tract he was offering to sell, and Clay supposed he was buying, did contain nine hundred and eighty acres.
Again, in the deed which was made, after describing all the land except the sixty-two acres, the description continues, “and including the lands purchased by said Moore, of the heirs of Daniel McDuff,” &c. This is a direct admission of the fact, which, in connection with the other proof, leaves the matter free from the possibility of doubt, that this particular tract was included as part of the land offered for sale.
That a Court of Equity can afford relief in such a case, when *750the facts are fully and clearly made out, we think, cannot admit of serious doubt, at this day. The counsel for the plaintiff in error, supposes that relief can only be granted by enforcing the parol negotiations, which preceded the sale, and the consummation of the contract. They were, as he insists, negotiations merely, and therefore not binding on either. They are only referred to, as explanatory of the meaning and intentions .of the parties, as to the subject matter of the contract, and .not to explain, add to, or vary its terms, and the admission of such testimony has never been held, as violating either the rule of evidence, that a written instrument cannot be varied by parol, or the statute of frauds. [Ogilvie v. Foljambe, 3 Merivale, 52; Ellis v. Burden, 2 Ala. Rep. 463.]
Independent of this consideration, it is the established practice of Courts of Equity, to relieve against a written contract, where material stipulations have been added, or omitted, by mistake or fraud. This has always been considered an exception to the general rule, and is submitted to from the necessity .of the case, to prevent a greater evil — the triumph of fraud, or the taking advantage of an innocent mistake. This point, was expressly thus ruled by this Court, in Minge v. Smith, 1 Ala. Rep. 415 — that in a sale of lands, if either party has misrepre.sented, or made a fraudulent concealment as to quantity, the law will afford redress to the party aggrieved. See also Barnett v. Stanton & Pollard, 2 Id. 182 ; Cullum v. The Br. Bank at Mobile, 4 Ala. Rep. 21; Van Arsdale & Co. v. Howard, 5 Ala. Rep. 601; see also, 1 Story’s Eq. 166, §§ 154, 155, and cases cited.
Having thus ascertained that the complainant is entitled to relief against Moore, we come to the consideration of the question, whether he is also entitled to relief against Freeman, who claims to be a purchaser of the land, without notice of the equity of Clay.
The doctrine upon this point is perfectly well understood, and free from all difficulty. A purchaser who buys land previously purchased by another, pays the purchase money, and obtains his title, before he receives notice of such prior purchase, will be protected against it. The plea, or answer, in which this defence is made, must aver these facts. Let us examine the answer of Freeman in this case. He admits, that *751in the fall of 1834, he purchased from Moore a tract of land, consisting of two hundred and seventy-nine acres at the price of $2,599, payable in three annual instalments, the first falling due 1st January, 1835, all of which he has paid, and obtained a deed therefor from Moore. He admits, that the land in dispute was included in his purchase, but denies that he ever heard of the claim of the complainant, before he made the purchase. The deed from Moore to him, which is made an exhibit, is dated 1st February, 1836.
The allegations of this answer, considered under the statute as a plea, are wholly insufficient. The allegation that he did not have notice before he made the purchase, is of no avail, because, if he received notice before he, paid the purchase money, it was sufficient. If he had paid a part of it, he should have proceeded no further with the contract, after receiving notice. It is insufficient, in not stating when he paid the purchase money. These important allegations are studiously avoided, nor indeed, is it stated with any thing like certainty, what price he was to give for this particular tract, or what proportion it bore, in value, to the entire tract purchased by him. If notice is not charged in the bill, it must nevertheless be denied in the plea, or answer — and it must be aliedged that the vendor was, or pretended to be, seized in fee, and was in possession. [Boon v. Chiles, 10 Peters, 211; Story v. Lord Windsor, 2 Atk. 630; Duphey v. Frenaye, 5 Stew. & Por. 238; Sugden on Yen. 555.]
From this it appears, that the answer is entirely insufficient, admitting it to be true, to show that Freeman is a purchaser, for valuable consideration, without notice of the complainant’s title. The complainant is entitled to the oath of the party seeking thus to protect himself, in addition to proof of the facts by competent testimony, and he must swear that he had not •notice at the time of the purchase, and down to the time of the payment of the purchase money, and the execution of the deed. But in this case, the record shows that he was served with a subpoena and copy of the bill, before all the purchase money was due, and before he received a deed for the land. It is therefore unnecessary to consider, whether the evidence of Moore was properly rejected or not, as it could not have availed the defendant, Freeman, if it had been considered.
*752The proof is ample to show, that the sixty-two acres in controversy was assigned to Richard McDuff, as one of the heirs of Daniel McDuff, and that he sold it to Moore, and put him in possession, if the record of the Orphans’ Court of Jackson county, by whose direction the division was made, is competent testimony. The case of Wyman v. Campbell, 6 Porter, 221, is a conclusive authority, that the record of the Orphans’ Court cannot be impeached collaterally, for any irregularity, or informality in the proceedings, if the Court obtained jurisdiction, and rendered a final decree. The proceeding in this case was under the act of 1822, (Clay’s Dig. 196, § 22.) Upon the petition of one of the heirs, the Court appointed commissioners to divide the real estate of Daniel McDuff, and ordered the return to be made, at a particular term of the Court. A survey and division of the land was made, and returned by them, and recorded by the clerk, and however irregular it may be, it cannot be impeached in this collateral way. The Court having acquired jurisdiction, and made its order or decree, the action of the commissioners, consequent thereon, is final, until reversed in a direct proceeding, having that for its object. The Court therefore did not err in divesting the title, which still remained in the heirs of Richard McDuff, and vesting it in the complainant.
It only remains to consider the final decree. There being no exception to the master’s report, the only matter left open for the Chancellor, upon the final decree, was to make a proper disposition of the purchase money, still due from Clay to Moore, and the amount found by the report, to be due for the rent and profits of the land. It appears by the master’s report, founded upon the testimony of Bradley, that all the purchase money has been paid by Clay, except $500. An objection has been raised to this evidence, because the bills and notes paid off were not produced, or their absence accounted for. This was not necessary, as was held by this Court in the P. and M. Bank v. Borland, 5 Ala. Rep. 543, and in other cases. This money belongs to Moore, and should have been decreed to him, but the Chancellor has decreed a perpetual injunction against its collection, probably considering that the amount due from Freeman for rent, being about the same amount, extinguished it. This, however, cannot _ be accomplished in this *753mode, as the moneys are not due in the same right. The decree should have been in favor of Moore, against Clay, for the purchase money unpaid, and in favor of Clay, against Freeman for the rents and profits.
It is true, that a Court of Chancery will, when it has the power, decree as between the defendants, and settle the entire controversy in one suit. This is peculiarly a case of that kind. If Freeman has paid Moore, he should be allowed to extinguish the amount so paid in the hands of Clay. And this Court would so decree, if the record;. furnished the necessary data. But there is no evidence of the amount paid by Freeman to Moore, in any part of the record, for this particular piece of land. The testimony of Moore, which might be looked to for this purpose, does not state the amount, or when it was paid.
The decree of the Court must be therefore modified, so far as to render a decree in favor of Moore, for the purchase money unpaid, in all other respects it is affirmed. As the case has not been considered in the aspect last adverted to, by the Chancellor, the cause will be remanded, to enable either of the parties, if they think proper, upon a showing of the necessary facts, to move the Court to decree an extinguishment to the amount of the sum paid by Freeman to Moore, with interest.
From the peculiar condition of this cause, we do not think it equitable that either of the parties should be taxed with the entire costs of this Court, it must therefore be borne equally, by Moore, Freeman and Clay, the real parties litigant upon the record.