delivered the Opinionof the Court,
Pollock, the appellee, resided <yi a tract of four hundred acres of land, in his o^fri name, or as heir of his brother.
A large claim covered entirely his tract and farm, .of which entry was in the following words and figures
"Mar eh 2d, 1784.
Patty Harris and Thomas Spilman assignee, William Tapp and Elias Barbee assignee, John Sudduth assignee, Steven Jett, John Porter, Benjamin. Withers, Isaac Arnold, Spencer Graham, Jesse Smith, Thomas Massie, Jacob Nay and Charles Morgan assignees, enter 17372 acres of land on treasury warrants, Nos. 19,322, 18,877, 19,169, 18,880, 11,047, 19,186, 17,466, 18,874, 12,006 and 15,536, *27Cftcii iff bold in proportion to their respective quart-titles in said warrants, beginning at the South' West corner of Isaac Halbert’s, Richard Ratcliff’s, Henry and Robert Gunnell’s, William Gunnell’s and Morgan’s entry of Í2,341 acres, on Hinkson’s fork, and running with their line North 1730 poles, thence West 1606,65 poles, thence South 1730poles, thence East 1606, 65 to the beginning.”Sur^ey *n ° 16 Patent, Contract between Polonopart^and Bowlin and wife on ths other'
The plat and certificate' of survey, stands precisely in the same names with the entry, and was made 21st of April, 1785.
On the 14th May, 1795, a grant issued from the Commonwealth of Kentucky, on the aforesaid entry and survey, granting the lands positively, without saying in what proportions they should hold ity and the grant is to the following persons: “Unto Patty Harris and Thomas Spilman assignee of William Tapp and Elias Barbee assignee of John Sudduth assignee of Stephen Jett, John Porter, Benjamin P. Withers, Isaac Arnold, Spencer Graham, Jesse Smith, Thomas Massie,- John Coons assignees of Jacob Nay and Charles Morgan assignees &c.”
A suit in equity was brought on this entry in the name of H. Marshall, Esq. and others, against Pollock, to recover his land, he having the oldest patent.
Pending that controversy, and before it was finally closed, Pollock entered into a contract with Bowlin and wife, the appellants, to purchase of them part of the interest secured and granted by the aforesaid title papers to Thomas Spilman ; she, the said Mrs. Bowlin, being the daughter of said Thomas Spilman, and supposed to be entitled, under the will of said Thomas, to his interest, devised by his will, to a part of his children, some of whom were dead, and she was their heir. The contract was evidenced by an article of agreement, dated 3d September, 1816, in which it is recited that, “whereas the said William Bowlin, in right of his wife, Sally Bowlin, late Sally Spilman, daughter of Thomas Spilman, one of the persons named in the entry of 17372 acres of land, made in Kentucky, on the 2d of March, 1784, in the name of Patty Harris &c. on *28Hinksou’s Fork, to one moiety of said S pi I in an’s' interest in said entry, which interest of said Bow* lift and wife, is the one half of twenty-four hundred forty-five acres in said entry, which has been Surveyed and patented”’ Pollock agreed to give two thousand dollars, the one half in one, and the other in two years from the date of the article; Bowlin and wife agreed to convey the land to Pollock as soon as may hb, with a clause of special •warranty against Thomhs Spilman’s heirs, and all persons claiming under him — Pollock to give his notes for the purchase money, and to mortgage the land to Bowlin, to secure its payment.
iüonveyanco «ndwUeTo Pollock. bollock’s bill for a judgment* for the pur.chase money, I T~ of the oon_ tract.*28On the 9th October, 1816, Bowlin and wife conveyed to Pollock, and Pollock gave his. notes'for tbe Pm'ch use money. The deed recites that “whereas, the said William Bowlin, in right.of his said wife, Sally Bowlin, late Sally Spilman, daughter of Thomas Spilman, one of the persons, named in an entry of 17372 acres of land, made in Kentucky on the second of March, 1784, in the name of Patty Harris & Co. on 'Hinkson’s Fork, to one moiety of said Spilmán’s interest in said enty, which interest of said Bowlin and wife, is the one half of twenty-four hundred and forty-five acres in. said entry, which has been surveyed and patented.”
The conveyance then proceeds to convey “the ¡said interest of the said Sally Bowlin and of said William Bowlin, in and to said land above described, being the one moiety or half of the interest of said . Spilman, to wit,' in-the one half of twenty-four hundred and forty-five acres aforesaid in said entry, survey and patent.” The deed also has a clause warranting the land so conveyed, against Bowlin and wife, and the claim of Thomas Spilman, and his heirs, and all persons claiming under him, but iiO others.
Pollock failed to pay his notes for the purchase money, when they became due; Bowlin obtained at law, which Pollock enjoined by his bil1 jn. e(luity5 praying a perpetual injunction and rescission of the contract. He amended his bill twice, but we need not take notice of the equity of *29iiis briginal bill or of one amendment, for it is done (away by the answers or evidence in the cause, or on its own merits, was untenable. •
Will of Spilman under wife claimed. Allegations of Pollock’s amended bill, contending Bowlin and wife had nothing in the land they had sold him.But in one amendment he has set up an equity which merits more particular consideration. It is this, the will of Thomas Spilman, the father of Mrs Bowlin, was dated on the 1st of October, 1782, and was recorded, after his death, on the 7th of November, 1782, in King George county, Virginia, where he resided, in which the only clause which lias a bearing on this controversy^ is as follows:
“ My desire is, whereas 1 have a land warrant for two thousand four hundred and forty-five acres of land, 'any where in Virginia, that it shall be equally divided between my four sons, viz: James-Spilman, Thomas Spilman, John Spilman and Samuel Spilman. My saying any where in Virginia, is a mistake of mine: 1-mean the. vacant land.” At the time of the contract and before a copy of this will Vas present, it was supposed and represented by -all concerned, that the warrant mentioned in the will was the one on which Thomas Spilman’s share in the entry -was founded. Samuel Spilman and ■John Spilman, two of the devisees of the warrant, were only half brothers to' the two other devisees, James and Thomas, and Mrs, Bowlin Was their full sister, and the only remaining brother or sister of the whole blood; and the two first of these devisees had departed this life childless and intestate, and it Vas asserted by Bowlin and wife, that she inherited the shares of said deceased devisees, which was agreed to by Pollock, and under' this impression and belief the contract was made.
But Pollock now charges in Ills bill that Charles Morgan had assigned the' warrant alluded to in -the Vill of Spilman, after his, said Spilman’s •7i , -, ,-,7 death, to himself, or some other person had done so for him, and in his own name had appropriated the warrant by entry, survey and patent, and that the warrant devised by the will, is not included in the entry in the name of Patty Harris &c.-; 'that Thomas Spilman had no interest in ' that entry, or if he had, it was not devised by his *30vriH, but on his death descended to the oldest sort;, as heir at law, at the time of his death, who was-William Spilman, and of course Mrs. Bowlin conld not be, and was not entitled to one single foot of land, as heir to her brothers, who were the devisees of her father, and the wliole claim of Patty Harris and others, an interest in which Bo'wlm and wife attempted to sell him, originated after the death of ¿aid Thomas Spilman, their father; and, therefore, thé Whole claim as to him Was void, and there was no interest therein, cither devisable Or descendable to his offspring, and consequently that the whole contract was based either on an entire mistake of the parties, or the fraud of Bowlin and wife, and ought, therefore, to be rescinded in toto.
Answer of Bowüa and wife. Deeree of the circuit court rescinding the contract. . Spilman, the testator, owned no warrant on which the claim was founded, at his death, but they were all issued and the entry made after Ins death; Bence his Will passed .nothing in the land and his *°ok dei- the’-rant, °*30Bowlin anti wife, ill answers to these charges, deny any knowledge of Morgan’s appropriation of the Warrant named in the will of their father, anti denies his authority to do' so. They insist that the' warrant devised by the will is included in the entry of Patty Harris & ,0o. and require proof to the contrary, and they refer to the Wilt and title papers on this point. They still insist that Mrs. .Bowlin holds the interest of her deceased brothers in the entry, by virtue of the devise of the warrant contained in the will of her father.
The court, below set aside the contract and granted a perpetual injunction, and from that decree Bowlin and wife have appealed.
It does appear from the Register’s book of warrants, that the number of all the warrants in the entry of Patty Harris & Co. as above given are true. Not one of them is in the name of Thomas Spilman, and no assignment of any one is made to him, and every one issued after his death, except one small one of 362 acresj m the name of Thomas Porter, and assigned by him to John Porter, named in the entry, and issued 21st February, 1782; and another of 305 acres, issued the 15th of May, 1782, No. 12006, to Jesse Smith, named in the entry. So that Thomas Spilman, after all the warrants are ascertained, had no warrant, and the entry was made long after his death, in which he, with others, was to hold in pro*31portion to his warrant, when he had none, and was not in existence himself. The entry seems to say he is an assignee. The patent declares him assignee of William Tapp. From this statement it placed beyond doubt that Thomas Spiiman’s .will, made in 1782, could not and did not operate on this entry, made in 1784, on warrant-.; issued after his death, even if his name had been in them. At that date his will could not pass lands acquired after its date and before his death, unless it was re-published. Much less could it operate upon posthumous titles. Here one might rest this fact without further -enquiry. For it is clear that Mrs. Bowlin could not have the least scintilla of title.
Query, vests the heirs or devisees, °f Pe!|sons the date o? the grants to them:with ^.^the decedant had not some into thehind”1 his Grant toll, agisi)'®®oaf ee,’&c. &c5ts? sued on a survey and toholdlii01 proportion to theirresprotívo quautities in the beshewn’s 11 bad nothing in the warrant, nothing him by the grant.*31But as it may be said that it would go to the heirs of Spilmau, against whom Pollock has a warranty; on that Pollock ought to rely, instead of ob? jecrting to the contract. We will, therefore, pursue this enquiry further, and we will see that neither she nor the heir at law, could take any title. If the .title was descendable it could be devised, and if it could he devised it would descend. The only plau-sible ground, therefore, on which it could be con-fended that the heirs could have any title, arises from the act of Assembly of the 22d December, 1792, 1 Litt. L. K. 160, which reads thus—
•u And, whereas, in some instances grants have issued in the names of persons who were deceased, prior to .the date of the grant, and cases of the same nature may happen in future: Be it enacted, that in all such cases the land conveyed shall descend to the heir, heirs or devisees in the same manner as it would do had the grant issued in the lifetime of such decedant.” If, for the sake of argument, it be conceded that this act vested in the heir the title, from the date of the entry, as far as it was competent for the Legislature to do so,, although the decedant in his life, had no color of even an incipient claim (which is very problematical) the question will recur still, what interest did it vest ?
To measure that interest we must look back at the entry and survey. These tell us the parties must hold in proportion to their respective war*32rants. To ascertain that, we seek the quantity of Thomas Spilman’s warrant; and then we discover that he had no warrant at all. Whether the act evcould have intended to grant lands to an heir, where the ancestor had not the least shadow of claim to measure the grant , by, is very doubtful. Shit without deciding it, we have no way to ascertain the extent of interest here,
Itseemsthe estoppal to in to deny that one of them íeresT^an"' have ño of-feet in a eon-twee^him.0" ami his vendee about the title. Sale of the devisee of .such patentee made under the mistake of both him '.and .bis vendee, as to bis right shall be sot .aside on the .discovery of the mistake, even after .conveyance made. Rescission of; contracts for mistakes., . . It may be said that the joint holders oí this entry would lie estopped to question tl>e right of Thos. Spilman’s heirs. Be it so, the question still recurs, to what extent of interest are they estopped, is that interest is to be measured by his warrant, when he jlas none? But if an estoppal would lie, as between these patentees, would it lie as between them and strangers? The conclusion cannot he admitted.
it is evident, both from the proofs as well as the allegations of the parties that the appellants really believed that the warrant of Thomas Spilman was m this entry, and that Ins interest was to be ineas^ ured thereby. The writings themselves shew that R°wlin and wife believed they were selling, rind Pollock supposed he was buying, under the will, the warrant mentioned therein: an interest co-extens*ve ^te inheritance of Mrs. Bowlin, from her deceased brothers of the whole blood. This turns out to be entirely untrue, the thing supposed to be bought and sold was not there, or any part of it. This was a clear mistake and no fraud is .imputable to the parties.. What then ought to be the effect of that mistake? The principle that the chancellor will vacate contracts on the ground of mistake, is too familir to need either proof or illustration. The mistake here is not partial, nor does it affect a quantity of interest, but is so great that there is not a particle passed of that which was supposed to be sold.
It is doubted whether a case can be found in which the mistake was so palpable and of such extent, where the chancellor has refused to relieve, if there be, it was owing to the bad conduct of the applicant or to some other circumstance which forbade complete redress. Here there is no lacks, on *33the part'of Pollock, in seeking redress, so soon as he discovered his error. He has set up iiis equity by an amended bill so soon as it was discovered. Pie was ignorant of it when he filed the original, and his opponents seem to have been ignorant of it till the evidence disclosed it. Pie seems to have filed his original bill in search of equity and set up a colorable resistance to the contract which was unfounded; but this ought not to prejudice his better equity of a different character which he has asserted as soon as discovered, and there is no obstacle in the way of a complete rescission. The parties can be placed in statu quo, completely. Pollock has gotten nothing by his conveyance. By recovering the money his adversary may gain, and he may lose much. By preventing that recovery neither party will gain or lose any thing except the costs of the controversy.
Itis no objecF toon to the reeoTtract°on the ground of the mistake 0!? he had some title when he a°conveyance with warranty were also without right, had execu ' ’The only plausible ground on which it can be contended that Pollock ought not to be relieved, is, that he has the warranty of Bowlin against the heir or heirs of Spilman. That the controversy which might arise between the heir and devisee is one that was contemplated at the time, and provided against by the parties in the stipulations of the warranty, and that he ought to be compelled to rely upon it till he suffers an eviction. We have seen that he is in no great danger from the heir. But if in this we are mistaken and his warranty was general against the world, as the contract is not compléted, the mistake so total and palpable, the principle is not perceived on which he should not be relieved, His motives in the purchase, no doubt, were to lay off the part of Thomas Spilinan, around and covering his possession, including some adjoining land ■ — to merge and unite that claim with his own, and thus place himself out of danger, not only ¡of the entry of Patty Harris & Co. but to arm himself against other claimants, against whom he has no warranty, and against whom he has no weapon of defence. Allured by the representations of his adversaries, he firmly believed that he was acquiring an interest in the entry of Patty Harris and Co. to some extent, and was induced to take'it without *34•warranty, except as to those who claim under Spilman. As to others he was to run the risque. Let him be evicted when he may by others he loses all and has no recourse. He cannot probably be evicted by the heir-of Spilman to give him the only recourse against his vendors. He cannot fortify his ■own claim, for he has added nothing to it.
Purchaser in such case having got nothing and not having paid the purchase jnone.y, may resist the payment,and have a rescission. If the purchaser get any thing by a fair contract after the conveyance with ■warranty, he must look to that and not come into equity. Entry of Patty Harris & Co.In short he has gotten nothing by the contract of the least benefit, except a simple warranty against the heirs of Spilman. He has to risque every body else, and was induced to do so by the mistaken and unintentional misrepresentation of facts by his vendor, and gains no defence for his home by his purchase. He has not completed it on his part and the opposite party can lose nothing if he never fulfils it.
If he had gotten a defective title by the contract, we admit that cases are not wanting to shew that he ought to rely on his warranty. But as he has not gotten even a colour or shadew of claim, he ought not to be compelled to rely on his warranty, in lieu of every thing besides.
The decree, the Chief Justice dissenting, must be affirmed with costs.