delivered the opinion of the Court.
In relation to the instruction requested by the plaintiff’s counsel in the County Court, we are of opinion that it clearly arose out of the testimony presented on the trial, that it was legal and propel, and should have been given by the Judge to the jury.
As to the charge given by the Court at the request of the defendant’s counsel, we think it was improper, because it was illegal and did notarise out of the testimony. It does not appear that there was any evidence going to prove that Evans had divested himself of title. The deed of trust was truly an incumbrance on the land, but cannot be considered as an absolute conveyance by which Evans had parted with all his right and title; and whether Evans had or had not parted with his title, there was not a total failure of consideration, for the vendee had the use and occupation of the land from the period of the sale to the present time, which was a benefit to him, and therefore in law, was some consideration. .As to the fraudulent rep® *493assentation made at the time of the sale, by the vendor to the vendee, that the land was free from incumbrance, it appears that the vendee knew of the incumbrance when he took possession of the land ; yet instead of rescinding the contract of sale, he confirmed the same, and acquiesced in the fraud, if any, by taking and continuing in possession, and afterwards paying a part of the purchase money.
Note. See a previous trial of this cause reported in Minor’s Ala. Rep p. 354.If there was a fraudulent representation, the vendee might have rescinded the contract as soon as he discovered the fraud; but having acquiesced in the fraud, and proceeded to take the benefit of the contract, he cannot rely on this ground to avoid the payment of the purchase money.
Perhaps in an action of covenant on the warranty expressed in the deed or implied in law, a subsisting incum-brance at the time of the sale, would be evidence of a breach of covenant, and support the action without an eviction by title paramount; but we do not undertake to •settle this principle, not thinking it necessary in the present case.
We are all of opinion that if the vendee with a knowledge of the incumbrance, took possession of the land, and has continued in the quiet and undisturbed possession of the same, though there was a fraudulent representation as to the title at the time of sale, he is yet bound to pay to the vendor or his assignee, the purchase money agreed to be paid. The judgement of the County Court is reversed and the cause remanded.
Judge Taylor not sitting.