In September, 1838, the defendant, and one Ezekiel Thomas, purchased at the land-office at Kalamazoo, the east half of fractional section nineteen, town eight south, of range eighteen west, containing two hundred and five acres and eighty-five hundredths of an acre, under an act to grant pre-emption rights to settlers on the public lands, passed by Congress that year, and took a certificate from the receiver of the land-office, of the payment of the money. The certificate described the land as the north half of the northeast quarter, and lots numbered one and two, of section nineteen, town eight south, of range eighteen, west. Complainant owned a farm of eighty acres, adjoining the tract on the north, and, being desirous of enlarging his farm, on February 11th, 1839, entered into a written contract with defendant for the purchase of forty-five acres of his undivided half, for which he was to pay $800; — $300 on the first of May following, when a deed was to be given, $250 on May 1st, 1840, and a like sum May 1st, 1841. By the contract, defendant agreed that complainant should have his forty-five acres next to his farm, “provided the arbitrators should so award it.” On the first of March, instead of the first of May, at the urgent solicitation of complainant, defendant and wife executed a warranty deed to him for his forty-five acres. Defendant, at first, refused to execute the deed, on the ground a patent had not then been obtained for the land; and, to induce him to execute it, complainant and one Joseph G. Ames agreed in writing to stand between him and all harm, and “to pay all dama*196ges he might sustain by reason of any illegal right to convey by deed his interest, or any part thereof, by a warranty deed.” The bill charges there was a mistake made in drawing the contract, but this is disproved, both by the answer, and the testimony of Ames, who drew up the contract. Up to the execution of the deed on the first of March, and, I may say, throughout, for aught I can discover to the contrary, the defendant dealt fairly and honestly with complainant. There was no fraud, no misrepresentation or concealment of his interest in the land; and complainant was aware of all the facts and circumstances relating to the title, as fully as defendant himself. He knew defendant and Thomas resided on different parts of the land; that they claimed it jointly under the preemption act of 1838, and that they had proved their claim, paid their money, and rightfully obtained a certificate from the receiver at the proper land-office. He also knew he must run the risk, when the land was divided, of having his forty-five acres set off adjoining his farm. Defendant had given his consent to such a partition, but he had gone no further; he had not agreed Thomas should assent to it. He was bound to give a deed in May, at which time, in all probability, he expected that he and Thomas would be in possession of the patent; for, when he was applied to for a deed, in February, he refused to give it until he was indemnified, as above stated. Soon after the deed was executed and delivered, probably in April, as appears from the testimony of Everett, defendant and Thomas received a notice from the land-office that the surveyor general had altered the survey of the section, by dividing the east half of it into a distinct quarter, with a fraction on the state line between Michigan and Indiana, and that, if they both resided on the quarter, they could hold it jointly; but, if one resided on the quarter, and the *197other on the fraction, each could take the one on which he resided. Thomas, in fact, resided on the quarter, and defendant on the fraction. This alteration of the original survey is what has probably given rise to this suit.
Thomas and defendant had in good faith taken the land jointly, each advancing one half of the purchase money; and, after the alteration was made, neither could take the part to which he was entitled under it, without first annulling the agreement by which they had taken the land together. Nor, even then, could defendant take the fraction, until the contract and deed between him and complainant were also annulled; the pre-emption law requiring the claimant to take an oath that he had not directly, or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatever, whereby the title which he might acquire should enure to the use or benefit of any one except himself, or to convey or transfer the land, or the title which he might acquire to the same to any other person or persons, at any subsequent time. Laws U. S., Vol. 9., p. 801. To obviate this difficulty, as it would seem, for the parties had dealt with each other in good faith, and had intended no violation of the pre-emption act, Thomas and defendant held on to the receiver’s certificate of September, 1838, and after-wards, on February 26th, 1840, executed mutual quitclaim deeds to each other, Thomas quit-claiming the south half of the land to defendant, and defendant the north half to Thomas. This was done with the approbation and consent of complainant, who was a witness to the deed from Thomas to defendant, and advanced the latter money to enable him to bring about the arrangement. Chipman, in his testimony, says he acted as defendant’s counsel, in procuring the quit-claim deed from Thomas ; that Thomas at first refused to execute one, but afterwards *198consented, on being paid $75; that complainant came with defendant to get the deed drawn ; and that he advanced the $75 to pay Thomas, and accepted an order for $25 drawn on him by defendant, in favor of witness for his services, which he afterwards paid. He also understood the object of the deed was to enable defendant to make a conveyance of a part of the land to complainant, and that the money advanced was a part of the purchase money, in the bargain for the land between complainant and defendant.
Long before this, and after he had become acquainted with all the facts in regard to the receiver’s certificate, and defendant’s title under it, complainant took possession of forty-five acres of the land, it being the north part of the south half subsequently quit-claimed by Thomas to defendant. The bill and answer disagree as to the character of this possession. Complainant says he took possession with the assent of defendant, and with a view to occupy and cultivate it temporarily only, whereas the defendant sa3rs it was under a parol agreement between them for a partition of the land. No part of the $800 had been paid when defendant was notified of the alteration of the original survey, and the effect it would have on the certificate. This was the last of March, or forepart of April, preceding the first of May, when $300 was to be paid, and I am inclined to believe, from the evidence, that complainant was in possession of all the facts, before the $300 was paid. However that may be, it appears he was in possession of them long before the $250, falling due in May, 1840, was paid by him.
If complainant was entitled to any relief in equity, it was to have the contract between him and defendant rescinded, and defendant’s deed to him cancelled, on learning the action of the government on the land-office certifi*199cate. This he would, probably, have been entitled to, on the ground of mutual mistake, as both parties had a right to suppose, when the contract was entered into, and the deed given, that a patent would be issued in accordance with the receiver’s certificate. But he has clearly waived this right by his subsequent conduct, and tacitly, at least, agreed to take his forty-five acres in the south half of the land, to which the defendant had an equitable title, with the legal title in the government; and to rely on the defendant’s warranty of that title, and the strong probability there was that government would not molest him in the enjoyment of the property, as a protection against the legal title. When a party is entitled to rescind a contract, he should act promptly, and not sleep on his rights, or take time to speculate on the course of events. If he goes on, with a full knowledge of his rights, recognising the.contract as still in force, and by his acts and conduct tacitly gives his assent to its execution, in a manner different from the original understanding of the parties, he is not entitled, in equity, to have either the contract itself rescinded, or any relief inconsistent with what may fairly, and reasonably, be presumed from his own acts to have been assented to by him.
Bill dismissed, with costs to defendant.