delivered the opinion of the court.
The bill in this case alledges a purchase by the complainant, of the defendant, of 200 acres of land, at the price of $400; the whole of which has been paid, but that there is no written evidence of the contract, except the receipts for the payment of the price, which are exhibited, and prays that the defendant that be compelled to convey, or, in the event of his inability to do so, that he may be decreed to refund the consideration received.
The defendant, in his answer, admits that he sold to the complainant 200 acres, at the price of $2 per acre, and that he has received the same; but he insists that he gave a bond to the complainant for the conveyance, by the terms of which he was only bound to convey George Brooks’ title, and the recourse he had upon Brooks; and alledges that he has always been ready to do so, and offers a deed to that effect.
The circuit court decreed the defendant to refund the consideration, with interest: from which decree he has appealed to this court.
Admitting the contract and the terms thereof to be as the defendant himself has alledged, we can perceive nothing erroneous in the decree of the circuit court. The defendant has shewn no title derived from Brooks, nor any power to convey Brooks’ title; and without such title, or such power, he was certainly unable to comply with the terms of his contract; and, therefore, in equity and good conscience, he ought to refund the consideration which he had received.
Decree affirmed with costs and damages