The appellant, through her agent, Leslie E. Brooks, sold to the appellee a lot of land in the city of Mobile,, received payment of the purchase-money, and executed a deed to the purchaser warranting the title. The purchaser went into possession of the property, and made valuable improvements upon it. Afterwards, ascertaining that his vendor had no title to the land, but that the title was in her husband, who was dead at the time of the sale, he abandoned the possession, and brought this suit for a rescission of the contract. The defendant admitted the sale, and her want of title, but professed her belief at the time that the property was a part of her separate estate; and she insisted, by demurrer, that there was no *160intentional misrepresentation of her right to sell, and, consequently, that the complainant could have no other remedy than by action at law on her warranty of title, whenever his possession was disturbed, which had not as yet been the case. She made, however, no offer to perfect the purchaser’s title, and it is apparent from the evidence that she could not do so.
In Lanier v. Hill (25 Ala. 554), the alleged fraudulent misrepresentation turned out to be 'only the honest mistake of the administrator with the will annexed, in supposing that he had authority under the will to sell the land. The intent was held to be immaterial, and relief was granted on proof of the mistake. To the same effect are Bailey v. Jordan, 32 Ala. 50; Foster v. Gressett, 29 Ala. 393; Munroe v. Pritchett, 16 Ala. 785; Young v. Harris, 2 Ala. 108. The jurisdiction of equity to rescind a contract, in such case, is not taken away because the purchaser may also have a remedy at law for deceit, or on his covenants of warranty. Cullum v. Branch Bank, 4 Ala. 21.
The complainant might, by the exercise of more than ordinary diligence, have ascertained the status of the title before his purchase, as he has done since. But the testimony shows that the defendant did have a separate estate in certain lots in the vicinity of the one sold to the complainant, and that there was a strong conviction of this being a part of it, not only on her part, but in the minds of her agent and the members of her family. Under these circumstances, she cannot complain that her vendee believed the representations made to him, and can claim no advantage, as against him, of a credulity in which she participated to a greater extent than he did. Generally, proof sufficient to establish innocence of intentional misrepresentation on the part of the vendor will acquit the purchaser of laches in not ascertaining the true condition of the title.
The court did not err in the measure of relief granted. Bryant v. Boothe, 30 Ala. 311; Thompson v. Lee, 31 Ala. 292.
The decree is affirmed.