By the deed of John Finley and Fielding M. Bradford, executed on the 29th November, 1815, the complainant became owner, in fee, of the undivided moiety of the three surveys, and of the estate, by courtesy of John Finley, (who is yet alive,) in the other moiety. He also acquired a right of action upon the covenants of that deed.
^Charles Bradford, the warrantee, died prior to the entries in
Barr, II. H. Finley and his uncle, went to view the land before they called on Galloway, and found it in the adverse possession of purchasers from him, whose possession was of twenty years’ standing. All the parties then supposed the patent from the United States sufficient to vest a valid, legal title in the patentee and his heirs, and acting upon this assumption, (which has become fact by virtue of the act of Congress of 1836, as explained -in reference to this identical title, in 12 Peters, 269,) they considered the purchasers and occupants, as they were in fact, legal owners of an undivided moiety of the land, each, in his own right, derived from Fielding M. Bradford, and of the life estate of John Finley in the other moiety, with a right to demand compensation of Finley their father, on failure of any part of the title. This was the state of things when the contract of 1835 was entered into, and which should be considered in determining whether the inadequacy of price is so great as to justify the Chancellor in refusing to enforce a specific performance.
Both parties dealt with their eyes open. The respondents were strangers in the State, and may not have been as well informed of the value of the property as complainant, who had been well acquainted with it for many years, and had dealt largely in Virginia Military Lands. But they did not rely upon him for information ; and, if they distrusted the sufficiency of their own, might have acquired knowledge of its value by making suitable inquiries in the neighborhood. They had no right to expect Galloway would volunteer information tending to induce them to increase their demands of him for lands which, twenty years before, he had purchased of their father, at a price considered fair, and which was but a trifle *less than the [359 minimum price of United States’ lands ; more especially, as the only profit of the purchase to Galloway, was the difference between the sum to be paid them, and the sum which his vendees might recover on his covenants of warranty — less the amount of the claim against their father and the estate of Fielding M. Bradford.
This view presents the case in a very different light from that in which it is seen by respondents’ counsel. Indeed, it was hardly fair
They claimed a moiety of this, which is...................... $25,000'
From which should be deducted the incumbrance of A life estate, equal to seven years’ interest, which is 10,500
*Also the consideration paid John Finley, and five years’ interest thereon.................................... 2,275-
Also the expected profit of a purchaser, who takes the trouble and risk of a resale — say 20 per cent, on the capital invested....................................... 4,000
And we have the gross sum of $16,775, which, deducted from $25,-000, leaves but $8,225, for which complainant gave up his claim to the land lying in Brown county, and agreed to pay $8,000. In this calculation no deduction is made on account of sundry parcels of the land sold for taxes, and which were probably forever lost to the proprietor. The whole land is estimated at the highest price, assuming the title perfect. If respondents’ counsel had taken this view of the facts, would they have stated that “ G-alloway persuaded the defend
We have endeavored to look at both sides of this case, and must say that, to us, it seems these young men, with the aid of their advisers, did not make so bad a bargain. They evidently appreciated the situation of Galloway. They knew that he had sold the land, years before; had conveyed, with covenants of warranty; and, at all hazards, must protect the purchasers, or respond to them in damages. This is shown by their threats to sell to General Taylor, if he would not give their price. Might it not with some propriety be asked, if they did not take advantage of his situation to drive a good bargain with him ? Under the circumstances it is certainly not unfair, but quite reasonable to presume, that they would have sold to Taylor, or any other person, if they could have made a better trade.
There is another view of the facts quite conclusive upon the respondents. At the January Term, 1838, of the Supreme Court of the United States, the complainant was seeking a recision of this contract, under a belief that the respondents could not make him a good title.. They successfully resisted him, and procured a decree establishing their title and affirming *the contract. The facts show that they [3&1. were at that time in full possession of all the circumstances of imposition, overreaching and fraud, if any there were, and the conclusion is hardly to be escaped that they, with full knowledge of the facts, had formed the determination to abide by the. terms of the contract, and to waive all advantage which, otherwise, they might have taken. We-think their conduct at that time, and before, was such that they ought not now to he allowed such an objection : that, even if there was some evidence of imposition and inadequacy, they should, in equity, bo regarded as having waived all objections, and as electing to affirm the-, contract, with a perfect knowledge of all the facts affecting their rights. The next ground of defence is, that this cause was fairly before the Supreme Court of the United States — was there adjudicated, and the-decision final. But that bill was filed to rescind, not to enforce, the contract. As amended and finally heard, the complainant, it is true, expressed his readiness to comply, and his desire to do so, if the defendants should be adjudged capable of making him a good title. By the terms of the contract he was not then entitled to a conveyance,, and if he had prayed for it, which he did not, the court would not have decreed it. The prayer for general relief can never be regarded.
It remains to be considered whether the conduct of complainant, and the delay of payment, have been such that a court of equity should refuse to interfere in his favor. Soon after the execution of the contract Galloway received from one of defendants’ attorneys a copy of C. Bradford’s will, from which he discovered, for the first time, that the lands were entered and patented in his name, after his death, and 302] that the titles *were void. Twenty years before he had purchased and paid for the same land, $3500. He had sold it to others, and was bound to protect their titles. To a moiety of the land, and to a life -estate in the other moiety, his title was independent of these respondents ; and if to be secured by a re-entry, he had no right to call on them to make it, or, if otherwise, no reason to expect they would comply in time to prevent intermediate entries. Accordingly he procured warrants, and caused the lands to be entered in his own name; and in so doing did precisely what any prudent man would have done under like circumstances, who was acquainted with the unconscientious greediness of speculators in the Virginia Military District, in seizing upon good unappropriated lands. If he had by this means secured the title to the land, a court of equity might have adjudged him a trustee of respondents, to the extent of their claim, they being at their share of the expense. This would be going far enough. It would not regard his claim of the entire benefit of the entry, a discharge from the contract, because his exclusive claim could only be resisted in virtue of the contract: The relation of vendor and vendee existing between them would not be destroyed by the new entry, but the latter would be modified, and have effect consistent with the equities arising from that relation, coupled with the attending circumstances of the case. When, therefore, the suit was commenced in the circuit court, the contract was open and obligatory upon both parties. 'The title of the land was different, however, from what both supposed it, and was sufficiently doubtful to justify a resort to a court of equity to have all doubt removed ; and if incapable of removal, to justify a decision. No mai should be compelled to part with his money on a
Decree for complainant.