delivered the opinion of the Court.
The appellant incurred no responsibility to the appellee by his sale as trustee, under the deed of trust in the proceedings mentioned, of the land thereby conveyed. Acting as trustee, he sold at public auction, such property and such title only as were vested in him by the deed, according to the terms therein prescribed, without any warranty; and it is not pretended that in
The equity asserted by the appellee is founded upon an alleged deficiency in the tract of land conveyed by the trust deed, arising out of an alleged defect in the title of Richard Hoomes, the grantor therein, to a part of the land embraced within the boundaries thereof. And if that equity can be established, it must be upon the supposition that the grantor and cestuis que trust in the deed are to be affected by such defect of title.
In this case, the question does not occur whether the purchaser at such a sale by the trustee, is entitled to the benefit of a clause or covenant of warranty in the conveyance from the grantor to the trustee. Here there is no clause or covenant of warranty in the deed: And if the purchaser is entitled to relief, it must be upon the ground of a mistake in regard to the subject-matter of the contract.
We need not consider whether there may not be cases of mistake, in respect to the identity of land sold by the trustee with that conveyed by the grantor, which would be proper for relief in a Court of equity. Here if there was any mistake, it was not of that nature. The property sold was the identical property conveyed by the deed; and there was no room for any mistake, unless in regard to the validity of the grantor’s title. A mistake in respect to that matter, is no ground for relief to a purchaser, where he takes upon himself the risk as to the title, as he does when he purchases land without agreement, express or implied, for a conveyance with warranty of the title.
There is no principle, therefore, whether of defective title or deficient quantity, upon which the appellee is entitled to relief; and it is unnecessary to consider the other questions of law and fact which have been discussed at the bar. And the Court is of opinion, that the decree of the Circuit court is erroneous.
Decree reversed with costs, restraining order set aside, and bill dismissed with costs.