delivered the opinion of this court.
The bill in this case was filed by the intestate of the appellant, to restrain proceedings at law by the appellee, to recover the amount of a note or single bill of Daniel Bussard, payable on the first day of October 1816. The facts of the case, as made by the bill and answer, may be thus stated: On the 16th day of June 1816, the appellee, Hobbs, agreed to sell to Bussard, for the sum of $1150, a house and lot of ground situate in Montgomery county, Bussard agreeing to pay therefor, the sum of $1150 on the first day of October thereafter, and Hobbs agreeing, by a written agreement under his hand and seal, to make to him “a good and lawful deed and title,” and to put him in possession on the same day. Neither at the *417lime of the contract, nor on the first day of October 1816, nor since, has Hobbs been seized of the property agreed to be sold and conveyed. He had agreed to parchase it from the father of Daniel Bussard, the party who filed the bill in this case, but never paid for the same nor received a deed for it. On the contrary, Bussard, Sen., instituted a suit for a part of the purchase money, and recovered judgment to the amount of $41.7.15, in the year 1817. Under this judgment the property was sold by the sheriff to George Kover. The note of Bussard, the complainant, not being paid at its maturity, Hobbs brought suit on it in Baltimore county court, and, subsequently, obtained judgment thereon. It is asserted in the answer of Hobbs, to the bill of complaint, that at the time of the making of the contract, Bussard was well aware of the fact that Hobbs had no title to the property, and that he immediately thereafter entered into possession of the premises. There is no evidence of this latter fact.
In regard to such a case as this, it appears to us there ought to be no doubt on the mind of any one, as to what should be the decision on obvious principles of equity and common sense. It presents simply this question: — Whether a person may sell a thing to which lie has no title, and recover the purchase money without transferring the title to the thing sold? It would seem that, the bare slating of the question is to resolve it in the negative. Without pedantically and uselessly wandering through the whole history of jurisprudence, we confine ourselves to the adjudications of our own State, wherein will be found a complete and full disposition of the case. The contract is an unexecuted one. In speaking of such an one, the court, in Buchanan, et al., vs. Lorman, et al., 3 Gill, 77, hold the following language which is conclusive of this case, “A vendee of an estate, in an unexecuted contract, is entitled to have that for which he contracts, before he can be compelled to part with the consideration he agreed to pay. The ability of the vendor to convey should exist, when his duty, by the contract, arises to convey, or at the time of a decree for a conveyance, where time is not of the essence of the contract. And we conceive it to be equally clear, that a vendee is not *418bound to take an estate fettered with incumbrances, by winds he may be subjected to litigation to procure his title. These principles are so obviously just, that they must be considered as resting at the foundation of every well regulated system of equity. ”
Almost any number of cases, both from the English and American authorities, might be adduced in support of the doctrine which we-have taken from 3 Gill. We omit any notice of them, because the case to which we refer, is so apposite and conclusive as to dispense with any necessity for further citations. The two cases are identical in their leading and controlling facts and principles. We think the circuit court erred in not continuing the injunction to the whole claim, and shall accordingly reverse its decrée, and pass one, continuing the injunction. /
Decree reversed and injunction continued.