There is no pretence, that, in the contract between the parties, or any proceeding under it, fraud has been committed ; but, on the contrary, the conduct of both has been fair and honourable.
It was the mutual understanding, that Mead should be invested with a title in the land, embraced by the covenant. By both it was believed, that a valid title had been acquired ; nor was the contrary known, until after the lapse of a number of years. The failure of consideration is admitted; and a restitution of the money paid for the land, is now demanded.
It is said to be extremely difficult, if not impracticable, to extract from the books, what the rule of equity is, on this point. 1 Fonb. 363. On principles of natural justice, it is clear, that an error in that particular, in prospect of which a man is induced to come to an agreement, and which constituted the material motive to his assent, should invalidate the contract. Puff. L. JV. lib. 1. c. 3.ff. 12., Poth. 14. 15. And the civil law seems, on this foundation, to have required the seller, in some cases, to declare the defects of the thing sold. Dig. lib. 21. tit. l.ff. 1., Domat, lib. 1. tit. 2. Jf. 11. It was determined, by Lord ¡Nottingham, (Anon. 2. Ch. Ca. 19.,) that the evicted purchaser is relievable from the payment of the purchase money ; and in Bumpus v. Platner & al. 1 Johns. Chan. Rep. 213., an eviction at law was considered, as anindispen-sible part of the plaintiff’s claim to relief in chancery, on the mere ground of failure of consideration. For the distinction *598between failure of title, proved by eviction, under a better title, and without this accompaniment, I take the reason to be, that, in the former case, the want of consideration, is indisputably established ; and that, in the latter, it is not, and cannot be tried in chancery on bill. Waiving a discussion of the point ag unnecessary, it is observable, in this case, that the defect of title is admitted by the parties ; and, therefore, that it rests, substantially, on the same ground, as if there had been an eviction. On the part of Mead, I can discern no neglect or acquiescence, that should seclude him from relief; and the injustice of his remaining unredressed, in some proper manner, is too palpable to be questioned.
The enquiry, then, remains, what remedy is adequate to the plaintiff’s case ; and, the general answer is, that which will do equal justice to the parties. The mistake was mutual, uncontaminated with fraud; and, all that justice requires, is, that Mead should be placed in a condition equally beneficial, as if no mistake had intervened. As soon as was convenient, after notice of the failure of consideration, Johnson acquired a good title to the premises, from the grand-children of Harman , Lyng, “ who,” as Mead avers in his bill, were “ solely and exclusively entitled thereto in fee simple.” This title Johnson offers to convey to Mead, by deed of release ; and to this several objections have been made.
1. It is said, that the conveyance should be by deed, with covenants of warranty. Had the covenant between the parties remained in full force, the objection would be well founded ; but satisfied with the title acquired, it was voluntarily surrendered and annulled. In doing this, there undoubtedly was a mistake ; but that respected the title only, and not the relinquishment of the warranty. The transaction, necessarily, involved this understanding, that the title being good, as it was supposed to be, the deed with warranty was not to be exacted. After this, it never can be required, on any just principle, that there should be a retrospect, placing Mead on higher ground, than that which he had voluntarily, and without mistake, abandoned. The covenant having been annulled, on the principle, that there was a good title, and the warranty dispensed with, the case ought to be viewed, as if the contract were merely to give a good and sufficient deed. A contract of this description is performed, if a deed without warranty, competent to pass the title, is delivered. Van Eps v. Schenec*599tady, 12 Johns. Rep. 436. 442., Gazley v. Price, 16 Johns. Rep. 267.
2. It has been insisted, that on the part of Johnson, there has been unjustifiable neglect; but the facts do not warrant this assertion. He believed, in 1809, when the covenant was annulled, that Mead was invested with a good title to the premises ; and from that moment, he was under no conceivable obligation, to make further enquiry into the subject. So soon as the defect of title was made known to him, he hastened to repair it ; and now offers to give a title, found to be unquestionable, and entirely unquestioned by the plaintiff.
3. It is further contended, that the length of time elapsed, isa fatal objection to a specific performance ; and particularly, as material disadvantage has been incurred by its lapse. It is not a fact, that any damage has resulted, from the want of precise performance. The value of the contract has not been impaired, by any omission on the part of Johnson, but by the accidental consequence of that general depreciation of property in the market, which resulted from public causes, operating throughout the country. It is not averred, by Mead, that he has been obstructed in the possession, improvement, or disposal of the land purchased, or embarrassed in any of his proceedings. The same depreciation of property complained of, would have equally existed, if the title had been unquestionable ; and it is as unfounded to say, that Johnson was under an obligation to sustain this accidental loss, as that he was invested with a right to demand a portion of any appreciation, which might arise. Independent of circumstances materially affecting the benefit of the contract, for which he ought to be' responsible, and none such exist, the lapse of time would constitute no objection to a specific performance, if the land has been in the occupancy, or under the controul, of Mead. But this is not the correct light, in which the subject should be viewed. Mead has exhibited his bill to obtain restitution of the money paid by him; and Johnson, throughout, is essentially in the character of a defendant, repelling the plaintiff’s claim. Johnson, without delay, has promptly offered to convey a good title to the premises, which, at some expence, he has procured; and this being done, the only complaint of Mead is annihilated. This is a remedy appropriate to the case, founded in the most exact justice, and conferring on Mead all the benefit, which the equity of tfie case demands.
*600I would, therefore, advise, that the bill of Mead be negatived ; and the cross-bill of Johnson, granted ; and on his depositing the deed of release, executed by himself and wife, with the clerk of the superior court, for the use of Mead, that Mead be enjoined against any further proceedings at law, or in equity ; and that no costs be taxed for either party.
The other Judges were of the same opinion, except Bristol, J. who, being related to one of the parties, gave no opinion.