delivered the opinion of the Court—
The contract between the parties having been executed on the part of Butler and Timberlake, and the deed accepted by Miller, it devolves upon him to allege and prove such matters as he relies upon to entitle him to a rescission of the contract.
He does not allege that the deed of conveyance made to him is defective, because a majority in amount of interest of the creditors mentioned in the deed of trust did not sanction and approve of it in the manner required by that deed; and consequently this matter was not in issue between the parties, nor can any objection be now made to the title on this ground. The vendors were not seeking a specific execution of the contract, and therefore they were not bound to demonstrate the goodness and sufficiency of their title to the land. The purchaser was seeking a rescission of the contract, and it was incumbent on him to establish the grounds on which he based his right to demand a rescission of it.
The act of 1820, (1 Stat. Laws, 449,) which renders invalid any sales of real or personal estate, thereafter made by a trustee, under and by virtue of a deed of trust, unless the maker of such deed should join in the deed or writing evidencing the sale or transfer, was passed-for the benefit of the grantor in such deeds, and to secure his interest in the property from being sacrificed, unless the sale was made with his consent.: This statute should not be applied to cases where the’ maker of the deed, by which the trust is created, has no interest either in the property conveyed or in- the execution of the trust. His consentto a sale of the trust property should not be deemed necessary in such cases, because having conveyed the estate absolutely, he has no further right in it to convey, nor any inte-; rest in the sale of it, inasmuch as he cannot be pre-. judiced by any disposition that may be made of it. It has been held that the statute does not embrace all deeds of trust, (6 Dana, 475; 3 J.J. Marshall, 236, 5 B. Monroe, 164,) and as it is obvious that it was de*626signed for the protection of the interest of the maker of the deed in the property conveyed in trust, it should not be considered as having any application in a case like the present, where no such interest exists. The deed of trust executed by Pitch, shows that he conveyed the property absolutely to the trustees, to be held by them for the purposes mentioned, and that he had no further interest in the property nor in the execution of the trust. We are of opinion, therefore, that it was not necessary for him to join in the deed of conveyance executed to the purchaser by the trustees.
2. The consent of a grantor is not necessary to the sale of trust property, where he has conveyed the estate absolutely, and has no further interest in it nor the sale ■of it. (6 Dana, 475; 3 J. J. Mashall, 236; 5 ,'B. Monroe, 164.) '3. WherelanS was conveyed to a vendee through imistake, the fact that the vendor had no title to it constitutes no ground for a rescission of t,!ie contract.*626The written agreement between the parties states expressly that the property agreed to be sold was the same that was conveyed to the trustees by Fitch and Johnson, and that deed excludes out of the boundary conveyed, the mill property, consisting of two acres in Jessamine county, which, as therein stated, had been sold under a decree, and was not included in the conveyance, but was reserved therefrom. It thus appears beyond doubt that this will property was not purchased by Miller, and that it did not constitute any part of the consideration for the payment of the stipulated price of five thousand dollars. It must therefore have been conveyed to him by mistake. This conelusion is fortified by his subsequent conduct in reference to this part of the property, and by all the facts -and circumstances in the case. Having been included in his deed by mistake, and not being any part of the property actually purchased by him, the fact that his vendors had no title to it, does not furnish him with any equity whatever, to have the contract Between them rescinded.
Miller does, however, allege in general terms that Jthe plaintiffs had no valid title to the land sold him, sand that to a portion of it they had no valid or color-;able title whatever. It appears in testimony that the title is in some respects defective; although Fitch and those under whom he claimed had been in the possession of it for many years, claiming it as their *627own, and the defendant has been in the undisturbed possession of the whole of the property actually pur- ' chased by him, ever since he obtained the posession of it under his contract. '
4, Where the vendee accepts a deed and possession and has not been disturbed in his possession, and there has been no fraud, there can be no rescission of the sontract at his instance.The charge of fraud against the vendors is wholly unsupported. They deny having made any representations to the purchaser about the title, or to have stated to him that the title was good, although they admit they may have said that in their opinion it was good. It does not appear that they said or did anything to induce the purchaser to believe they,had any knowledge of the goodness of the title. The very terms upon which they proposed to sell should have put him on.his guard, and induced him to have investigated the title for himself. They only agreed to convey the title which had been vested in them without any covenant of warranty, and without any responsibility upon themselves whatever. He purchased from them upon these terms, and after having had time to examine the title he accepted a deed from them in fulfilment of the contract upon their part. If they acted fairly, and made no misrepresentations to him in relation to the title, upon what ground can the contract be rescinded? There is not a particle of evidence tending to show any unfairness in their conduct, any fraud in the procurement of the contract or any misrepresentations of any fact relating to the title to the property. The fact that the deed does not contain a covenant of warranty, cannot operate in his favor. It proves that he did not only rely upon his vendors, but was willing to purchase the property and risk the title. Purchasers have a right to make such risking contracts, and when made can only be relieved from them upon the ground of fraud in their procurement. The same principle was recognized and applied in the case of Newport Odd Fellows vs. Johnson, decided at the last term of this court. The defect in the title does not therefore authorize a rescission of the contract.
*628Wherefore, the judgment is reversed andcause remanded that a judgment may be rendered against the defendant, on the note upon which the plaintiff’s action is founded.