When not offending under such circum- | Court of New Hampshire recognized a like stances, his justification does not rest on the principle. "It is true," said the Chief Justice general ground of vindicating a trespass in for the court, "that moderators may decide private life, and between those not acting offi- wrongly with the best intentions, and then the cially and not with a discretion. Because party will be without remedy. And so may a then, acts of violence being first proved, the court and jury decide wrongly, and then the person using them must go forward next and party will also be without remedy." But show the moderation or justification of the there is no liability in such case without malice blows used. 2 Greenleaf on Ev. sec. 99. alleged and proved. Wheeler v. Patterson, 1 N. H. 90. The chief mistake below was in looking only to such cases as a guide. For the justification rests here on a rule of law entirely different, though well settled, and is, that the acts of a public officer on public matters, within his jurisdiction, and where he has a discretion, are to be presumed legal, till shown by others to be unjustifiable. Gidley v. Palmerston, 7 Moore, 111; Vanderheyden v. Young, 11 Johns. 150; 6 Harr. & Johns. 329; Martin v. Mott, 12 Wheaton, 31. This, too, is not on the principle merely that innocence and doing right are to be presumed, till the contrary is shown. 1 Greenl. sec. 35-37. But that the officer, being intrusted with a discretion for public purposes, is not to 131*] be punished *for the exercise of it, unless it is first proved against him, either that he exercised the power confided in cases without his jurisdiction, or in a manner not confided to him, as with malice, cruelty, or willful oppression, or, in the words of Lord Mansfield, in Wall v. McNamara, that he exercised it as "if the heart is wrong." 2 Carr. & Payne, 158, note. In short, it is not enough to show he committed an error in judgment, but it must have been a malicious and willful error. Harman v. Tappenden et al. 1 East, 562, 565, note. It may not be without some benefit, in a case | of so much interest as this, to refer a moment further to one or two particular precedents in England and this country, and even in this court, in illustration of the soundness of these positions. Thus in Drewe v. Coulton, 1 East, 562, note, which was an action against the defendant, who was a public returning officer, for refusing a vote, Wilson, J. says: "This is, in the nature of it, an action for misbehavior by a public officer in his duty. Now, I think that it cannot be called misbehavior unless maliciously and willfully done, and that the action will not lie for a mistake in law." "By willful I understand contrary to a man's own conviction." "In very few instances is an officer answerable for what he does to the best of his judgment in cases where he is compellable to act, but the action lies where the officer has an option whether he will act or no." See these last cases collected in Seaman v. Patten, 2 Caines, 313, 315. In a case in this country (Jenkins v. Waldron, 11 Johns. 121), Spencer, J., says, for the whole court, on a state of facts much like the case in East: "It would, in our opinion, be opposed to all the principles of law, justice, and sound policy, to hold that officers called upon to exercise their deliberate judgments are answerable for a mistake in law, either civilly or criminally, when their motives are pure, and untainted with fraud or malice." Similar views were again expressed by the same court in the same volume, p. 160, in Vanderheyden v. Young. And in a like case, the Supreme Finally, in this court, like views were expressed, through Justice Story, in Martin v. Mott, 12 Wheat. 31: "Whenever a statute gives a discretionary power to any person, to be *exercised by him upon his own [*132 opinion of certain facts, it is a sound rule of construction that the statutes constitute him the sole and exclusive judge of the existence of these facts." "Every public officer is presumed to act in obedience to his duty, until the contrary is shown." Under these established principles and precedents, it will be seen that the rulings below must be held erroneous whenever the court departed from them, and required the defendant, as on several occasions, to go forward, and in the first instance to prove details rebutting any error or excess. As, for illustration, to prove in the outset facts showing a necessity to detain the plaintiff, before the latter had offered any evidence it was done from malice or without cause; or to prove that the prison on shore was safer and more suitable for the plaintiff's confinement than the vessels, under the peculiar circumstances then existing, until the plaintiff had first shown that no discretion existed in the defendant to place him there, or that he did it mala fide, or for purposes of cruelty and oppression; or to prove that the punishment inflicted was not immoderate, and not unreasonable, when it is admitted to have been within the limits of his discretion, as confided to him by the articles for the government of the navy. On the contrary, as has been shown, all his acts within the limits of the discretion given to him are to be regarded as prima facie right till the opposite party disprove this presumption. The judgment below must therefore be reversed, and a venire de novo awarded, and the new trial be governed by the principles here decided. HUGH M. PATTON, Administrator, and Hugh M. Patton et al., Heirs of Robert Patton, Deceased, Appellants, V. JAMES TAYLOR, Administrator, and James Taylor, John W. Tibbatts and Ann W., his wife, George T. Williamson and Jane M., his wife, and Horatio T. Harris and Keturah L., his wife, Heirs of James Taylor, Deceased. Purchaser in possession of land, not relieved in equity from payment of purchase money on ground of defect in vendor's title, unless fraud is proved-trustee-witness-competency. A bill in chancery filed by the purchaser of land against his vendor, to restrain the collection of the purchase money, upon the two grounds of want of title in the vendor, and his subsequent insolvency, without charging fraud or misrepresenta tion, cannot be sustained. Relief will not be given on the ground of fraud, unless it be made a distinct allegation in the bill, so that it may be put in issue in the pleadings. It was error in the court below to reject the testimony of an attorney upon the ground of his being security for costs, when the party for whom he was security had already obtained a judgment against his adversary, and also upon the ground of his being interested, when he held certain notes only for the purpose of paying the money over to his clients, when recovered. 13 3 *] * THIS was an appeal from the Circuit Court of the United States for the District of Kentucky, sitting as a court of equity. Patton was a citizen of Virginia, and Taylor of Kentucky. matters. It may be proper to remark, that it The letter then proceeded to speak of other was contended in the argument, that, in transcribing and printing, an error had occurred in the punctuation. The words "if it is not done" belonged, it was said, to the words which follow them, viz., "I shall expect," etc., which, it was argued, would materially change the meaning. On the 13th of July, 1818, Patton replied, by a letter from which the following is an extract: "Fredericksburg, 13th July, 1818. "Gen. James Taylor: "Dear Sir, I am favored with yours of the 22d of June, and not less surprised than you seem to be about the 2,000 acres of land, in name of Thomas Gaskins, offered you, the 17th of March last year, at 15s. per acre; and, in yours of the *5th of July, you advise [*134 me to take $4,000, as the lands in that quarter were generally of an inferior quality, and could not rise in value. In that month I wrote to you that I would not take less than 15s. per On the 30th of January, 1818, Taylor addressed a letter, dated Frankfort, Kentucky, to Patton, in Virginia, in which he gave an account of certain other lands, and then proceed-acre; to this letter, though one was requested. ed as follows; "I shall go from this to Lexington, to the court which commences this week, and do what I think right. I think your price too high for your land for me to make much, if any, profit from it; but must conclude to take it at five thousand dollars, for the two tracts of 1,000 acres each, payable one half in one year from the time you send me the deed, and the other half in two years from that time; 1 mean the two tracts entered and surveyed in the name of Thos. Gaskins; it appears to have been patented in the name of Hicks & Campbell; you can have the deed made out, as I suppose you have the patents, and I suppose the chain of title; which it will be necessary to forward, also to be recorded here, if it is not done; I shall expect a general warranty deed, expressing more or less as to the mode of authenticating the deed; our mutual friend, Col. Mercer, can give you information if you should be at loss, as he has conveyed to me several times. The land lies in the Virginia military district, and in the County of Hopkins. 1 presume you will have no objection to making the conveyance, and taking my bonds; and indeed this shall oblige me to consider the contract binding on me, as above stated, on receiving the deed as aforesaid for the said land, payable as aforesaid. "If you want any security, or a mortgage, say so." NOTE. When equity will restrain the collection of purchase money, for failure of title, etc. The suppression by the vendor of a knowledge of fatal defects in the title of the property conveyed constitutes such fraud as will authorize the interference of equity to prevent the collection of the purchase money, notwithstanding the remedy, at law for breach of covenants for title, if the vendor be insolvent so that a judgment against him would be worthless. Ingram v. Morgan, 4 Humph. 66; Yonge v. McCormick, 6 Fla. 368; Ralston v. Miller, 3 Rand. 44; Buchanan v. Lorman, 3 Gill, 51; Strodes v. Patton, 1 Marsh. Dec. 228; Hilleary v. Crow, 1 Harr. & J. 542; Truly v. Wanzer, 5 How. 141; Wanzer v. Truly, 17 How. 584; Prout v. Gibson, 1 Cranch, C. C. 389; Fishback v. Williams, 3 Bibb, 342; Richardson v. Williams, 3 Jones Eq. 116. Where the purchaser of land is in actual possession under covenants of warranty, he is not enti I never had any reply, nor did you ever say you would accept my offer, until the 30th of January, six months after the last offer was made, for the letter of the 18th of December was only putting you in mind of the offer made in July. This letter, I will candidly acknowledge, I did not remember having written, not having kept any copy. There is something in the extended delay of your answer which I do not like, nor do I think it right; but I am anxious to avoid all misunderstanding, and, during my whole life, have never stood on trifles. You may, therefore, have the land at 17s. per acre, one half payable in twelve mouths from the time my offer was renewed, and the remainder twelve months afterwards. Your own bonds will be considered as sufficient security for the amount. By this decision I am. placed in an awkward situation with the young: man with whom I made a conditional contract, and who has not, as I am informed of, returned. from that country. "The land patents are in the name of Thomas Gaskins, for whose services the land was rendered, were by him convened to William Forbes, and by him to Hicks & Campbell, of whom I received and will give you a deed, with a warranty, as soon as you reply to this letter. I hope Willis's representatives will not buy, and you are at liberty to take any lot you think best, but I will not take 15s. for any part of it." tled to an injunction against the collection of purchase money, on the ground of failure of consideration resulting from want of title. In such cases. of purchaser's claim to relief in equity, and he beeviction at law is regarded as an indispensable part ing still in possession under covenants of warranty.. no injunction will be allowed. Bumpus v. Platner, 1 Johns. Ch. 213; Abbott v. Allen, 2 Johns. Ch. 519; Gayle v. Fattle, 14 Md. 69; Beale v. Seively, 8 Leigh, 658; Wilkins v. Hogue, 2 Jones, Eq. 479 5 Sneed, 505; Truly v. Wanzer, 5 How. 141; Anon, Elliott v. Thompson, 4 Humph. 99; Seuter v. Hill, 2 Ch. Cas. 19. But see, contra, Clarke v. Hardgrove, 7 Grat. 399; Koger v. Kane, 5 Leigh, 606; McCormick, 6 Fla. 368; Gay v. Hancock, 1 Rand. Bartlett v. London, 7 J. J. Marsh. 641; Yonge v. 72; Miller v. Argyle's Ex'rs, 5 Leigh, 460; Bul. litt's Ex'rs. v. Songster's Adm'rs, 3 Munf. 55; Dorsey v. Hobbs, 10 Md. 412; Buchanan v. Lor-. man, 3 Gill, 51. And in no event will mere general allegations of On the 3d of September, 1818, Patton and wife executed a deed in fee-simple to Taylor for the land in question, with a covenant for further assurances and a general warranty. The bonds for the purchase money appear to have been previously executed, and were as follows, viz.: "Newport, October 23d, 1819. "Sir,-At the time you forwarded me the deed for the land I bought of you in the County of Hopkins, patented to Thos. Gaskins, you sent me nothing to show how the title had passed to you. The land is listed on the auditor's books for taxes in the name of Thomas Southcombe, and for a number of years I have "I, James Taylor, of the County of Campbell, and State of Kentucky, do oblige my-paid the taxes in his name for you. When your self, my heirs and administrators, to pay to Robert Patton, of the town of Fredericksburg, and State of Virginia, the sum of $2,500, in current money, on the 30th day of January, 1819, as witness my hand and seal, this 5th day of August, 1818. James Taylor. "Witness: Philip H. Jones." to wit: Receipt for $600. "July 1st, 1817, received from James Taylor the sum of six hundred dollars of the Hugh M. Patton." within. son, Hugh M. Patton, your agent, was here, I inquired of him how you derived your title from Southcombe, and whether he had a regular conveyance from Gaskins. He told me that you had some kind of transfer from Southcombe for all his debts, lands, etc., but did not seem to know much about it, but promised me, immediately on his getting home, to inform you of my uneasiness and doubts whether the chain of title was perfect, and to notify me, and indifferent conveyances, or, if they were in this deed to request of you to send me a copy of the county, to inform me where they could be found. I have not had a line from [*136 either of you since his return. I also consider myself very badly treated on another score. Your son had drawn a bill for $300, in favor of Your son had drawn a bill for $300, in favor of Mr. Talbott to be indorser; and, to indemnify Talbott, of Lexington, on which he procured him from doing so, he had lodged with him my $373 82/100 bond to you for the first payment of the said "Attorney for Robert Patton." land. Your son wished to get the bond re"I, James Taylor, of the County of Camp-leased, and requested of me to give Mr. Talbott bell, and State of Kentucky, do oblige myself, a guarantee that the bill should be duly honmy heirs and administrators, to pay Robert ored. This I did not hesitate to do. A few Patton, his heirs or assigns, of the town of weeks ago I received a notification from the F. Fredericksburg, and State of Virginia, the sum and M. Bank of Lexington, that the bill, alof $2,500, in current money, on the 30th Jan- though accepted by you, had been returned to uary, 1820, as witness my hand and seal, this the bank protested for nonpayment; and I am 1st day of July, 1818. called on by Mr. Talbott to take up the bill. and relieve him. I made every exertion in my power, when your son was here, to aid him in discharging a debt due here, which was in the hands of Mr. Talbott for collection, and was "James Taylor. [seal.]" On which there was the following assignment, to wit: Assignment. "For value received, I assign the within largely in advance for your taxes in this State bond to Theo. F. Talbott. "Robert Patton, "By H. M. Patton, his Att'y in fact. "July 1st, 1819." In May, 1819, Hugh M. Patton, the son and agent of Robert Patton, went to Kentucky, and there executed the assignment above mentioned to Talbott, as security for a debt due by Robert Patton, and for the collection of which Talbott was the attorney. On the 23d of October, 1819, Taylor addressed to Patton the following letter: and Ohio. The times, as to a good circulating medium, are truly embarrassing; but, had I been sure the title to the land sold me had been secure, I could have made sales to have met the payments, or nearly so; but I have been deterred from selling one acre, although offered the specie funds for a considerable purchase. Taking the whole transaction together, I must confess it is not such as I expected from Mr. Robert Patton, of Fredericksburg. If there had been any little defect in the title to this land, which can be removed, and I had been notified failure of title or defective title sustain bill for in- | collection of purchase money, where purchaser is junction. French v. Howard, 3 Bibb, 301. Where it does not appear that the vendor knew of, and fraudulently suppressed, the defect in the title, and no suit is prosecuted or threatened against vendee, and the latter is in possession under covenants of warranty, no injunction will be granted. Peters v. Bowman, 8 Otto, 98 U. S. 56; Noonan v. Lee, 2 Black, 499; Campbell v. Medbury, 5 Biss. 33; Beale v. Seively, 8 Leigh, 658; Truly v. Wanzer, 5 How. 141; Hile v. Davison, 5 C. E. Green, 228; 6 N. Y. 84; 6 Ohio, 217. Where possession has not been given, relief in equity may be allowed against enforced payment of purchase money, particularly where no conveyance has been made. Hilleary v. Crow, 1 Harr. & J. 542: Nelson v. Owen, 3 Ired. Eq. 175. Outstanding incumbrances, or outstanding equitable title, or fears that title will prove defective, will not warrant a court of equity in enjoining the in peaceable possession under covenants of warranty. Refield v. Woodfolk, 22 How. 318; Elliott v. Thompson, 4 Humph. 99; Seuter v. Hill, 5 Sneed, 505; Wilkins v. Hogue, 2 Jones Eq. 479; French v. Howard, 3 Bibb, 301; Truly v. Wanzer, 5 How. 141. Yet where action of ejectment has been commenced, and the bill charges that such action is founded upon a valid paramount title, the recovery of the purchase money may be restrained. son v. Gere, 2 Johns. Ch. 546. John But a mere claim of paramount title, by third the vendee, will not authorize injunction against person, and action commenced on such title against vendor who has warranted the title, to prevent collection of purchase money. Gayle v. Fattle, 14 Md. 69. But where vendee has no possession, or surrenders it, and has no conveyance, bill for such injunction may be sustained. Brannum v. Ellison, 5 tion, and, if you have them, the proper convey- of it and had it explained, I should not have been disposed to throw difficulties in the way, if there was a prospect to have any difficulty removed. When I go up, I shall have the records examined, and, if no chain of title can be found, I shall refuse to pay any more money till these difficulties are removed. I am sure you cannot think I am acting incorrectly in the course I am about to pursue. I am, Sir, your the following letter to Taylor, which closed the James Taylor. obedient servant, "Robert Patton, Esq." On the 20th of February, 1820, Taylor addressed to Patton the following letter: "Washington City, February 29, 1820. "Robert Patton, Esq.: On the 20th of June, 1820, Patton addressed correspondence: "Fredericksburg, 20th June, 1820. "Gen. James Taylor: "Dear Sir,-Hearing of your being in Washington in the spring, and calculating on a certainty of seeing you in this place, I was greatly “Sir,—I wrote you from Newport, Ky., last disappointed at not having had some conversafall, requesting information whether the con- tion with you during your stay, or previous to veyances had been regular from the original your departure from the city. By a letter just patentee, Thos. Gaskins, for the two thousand received from Mr. Talbott, covering a dupliacres of land sold me by you, lying in Hop- cate of one of yours to him of the 1st instant, kins County, on the waters of Pogue's Creek, wherein you say you will resist the payment of and which I understood you purchased of Thos. the bonds assigned Talbott by my son, when in Southcombe, to which letter I am without an Kentucky. This information has surprised and answer, and at which I confess I am much sur- astonished me much. And surely, my dear 137*] prised. I examined the records at sir, you will not persist in this course, but, on Frankfort, Ky., and it appears to me the con- mature consideration, pay the amount. When veyances are regular down to Southcombe; I sold you these 2,000 acres of land, Southand, if you have a proper conveyance from combe had long been dead; hence, as his agent. him (Southcombe), all will be right, I think. I which you know I was, I could not make a deed assure you I wish you and myself to arrange as such, but I did what you required. [*138 our business in the most amicable manner; but I made you a deed in my own name, with` a you must be sensible into what difficulties I general warranty, and no objectioon was made was thrown by not receiving the wished-for in- to this conveyance until the money was reformation, which was promised me by your quired. I sent you the original patents by son and agent, Hugh M. Patton, Esq., and then Murdock Cooper, of your State, and I now subrequested of you in my letter aforesaid, ad- join a short history of this land. Your 2,000 dressed to you specially on the subject, and par- acres, together with 1,500 more, were granted ticularly when I was compelled to take up your Col. Gaskins for military services, by him, said son's bill for 300 and odd dollars, which I sold to William Forbes, by Forbes sold to Robhad, at the request of your said son, guaran- ert Campbell, of Richmond (once Hicks & teed should be paid by you, which you failed Campbell), and by Robert Campbell and Ann, to do, and which I had to pay, to exonerate his wife, conveyed to Thomas Southcombe; Theo. F Talbott, in the F and M Bank of which last deed is in my possession. All SouthLexington. The true state of this business I combe's matters have been settled long ago, did not understand till after I had paid the bill, when this land was rated at $2, and paid for and I do not think said Talbott treated either by me. And there is not a human being has a yourself or myself with fairness; as he after-shadow of claim to this land but myself; and wards informed me he was authorized to re- I have secured it to you by my conveyance. draw, but which he told me he had no idea of doing, to make himself responsible. Under all these embarrassments, I informed you I could not think of selling the land, until I was assured the legal title was in you before you sold to me. Will you be good enough to give my agent, Philip H. Jones, the necessary informaJones, Eq. 435; Brittain v. McLean, 6 Ired. Eq. 165. Nor where vendee has been in possession so long as to have acquired title by adverse possession. Amick v. Bowyer, 3 West Va. 7. Nor where purchaser has accepted conveyance without warranty of title, in the absence of fraud or concealment on part of vendor. Price's Ex'rs v. Ayres, 10 Grat. 575; Keyton v. Brawford, 5 Leigh, 39; Carrico v. Froman, 2 Lit. 178; Sutton v. Sutton, 7 Grat. 234; Lucas v. Chapeze, 2 Lit 31. Nor in case of sale of land in gross, will equity interfere on account of deficiency in amount of land conveyed. Keyton v. Brawford, 5 Leigh, 39; except whose purchase was made relying entirely on vendor's representations as to amount, which representations prove false. Lee v. Vaughan, Ky. Dec. 238. In the latter case purchase money may be enjoined to the extent of the deficiency in the land. Stroder v. Patton, 1 Marsh. Dec. 228. We have long been acquainted; we have long been friends. You have acted as my agent much to my satisfaction; and I ever reposed the fullest confidence in your honor and integrity. Under these circumstances, it would give me great pain if any misunderstanding should arise between us; and I cannot help thinking that, on But where land is sold with covenants of warranty, and deed of trust given to secure payment of purchase money, discovery of adverse claim to the land has been held sufficient to warrant a court of equity in enjoining a sale under the trust deed until the cloud resting on the title is removed. Gay v. Hancock, 1 Rand. 72; Miller v. Argyle's Ex'rs, 5 Leigh, 460; Galloway v. Finley, 12 Pet. 264. Nor, is the right to an injunction for defective title impaired by the vendor's seeking to collect the unpaid purchase money from a third person on a collateral security assigned to such person by the purchaser. Clarke v. Hardgrove, 7 Grat. 399; Ingram v. Morgan, 4 Humph. 66. Where vendor is without title, and in no condition to convey, equitable relief has been allowed, and judgment for purchase money enjoined. Galloway v. Finley, 12 Pet. 264; Buchanan v. Lorman, 3 Gill, 51; Dorsey v. Hobbs, 10 Md. 412. Or, where purchaser was kept in ignorance of due consideration, you will change your course, | the title to this land, and bought relying upon and pay the bonds assigned Talbott, which was done under very peculiar circumstances, and may have placed that gentleman in a very disagreeable situation respecting them. I am, dear Sir, your most obedient servant, "Robert Patton." On the 7th of July, 1820, Patton brought a suit against Taylor upon the bonds in the Circuit Court of the United States for Kentucky, and at November Term, 1820, obtained judgment by default. At the same term, viz., November, 1820, Taylor filed his bill on the equity side of the court, reciting the purchase and continuing thus: his warranty; and that the possession under him prevented any reasonable apprehension from adverse claims. The answer further alleged, that having received a payment of part of the first note on the 1st of July, 1819, the defendant thereupon, with the consent and in the presence of Taylor, assigned the notes to T. F. Talbott, to be applied in payment of a debt held by Witherspoon, and relies that the assignment prevents a cancelment of the notes. At the May Term, 1823, Taylor filed an amended bill, charging that the purchase was by letter; that Patton had become insolvent, having been at the time of sale a man of wealth; and exhibiting copies of three letters, addressed by him to Patton of the 30th of January, 1818, 23d October, 1819, and 29th February, 1820, and calling upon Patton to produce the originals or to admit the copies to be correct, and to show what evidence he had of a conveyance from Southcombe. Robert Patton having died, Taylor, in November, 1829, filed a bill of revivor against Hugh M. Patton and others, his children and heirs at law, alleging that their ancestor died insolvent and intestate, and that no administration had been granted upon his estate. "And at the time of the purchase aforesaid, and the execution of the said promissory notes, your orator entertained no doubt that the said Patton had a good title to the said land, and was enabled to convey the same to your orator; but now, so it is, may it please your honors, your orator has since discovered that the said Patton has no title for the said land from the said Southcombe, who is dead, and whose heirs are unknown to your orator. That the said Patton has nevertheless commenced actions on the said notes, on the common law side of this court. And your orator, being unable to make defense at law, the said Patton has recovered judgments on the said notes. Your orator annexes hereto, as a part of this bill, a letter from the said Patton, acknowledging his 139*] defective title to *the said land. That the latter. That your orator has already made sundry payments on account of said notes. And he apprehends that the said Patton will proceed to enforce payment of the residue, unless prevented by the interposition of this honorable court, which would be contrary to equity. In tender consideration whereof," etc., etc. The bill then prayed for an injunction, which was granted. In December, 1822, Patton filed his answer, admitting he had no legal title to the land, but | insisting that he had bought it from Southcombe, and paid him for it on a final settlement of their affairs; that he had a power of attorney from Southcombe to sell it, which he did not act upon, owing to Southcombe's death; that he took possession of the land more than twenty years past, paid the taxes regularly, till he sold to Taylor, who entered and has held the possession ever since, and has sold part of the land; that Taylor was for years his agent to pay taxes on his lands, in Kentucky, knew his titles generally, and particularly the defect of the defective title, by vendor's false and fraudulent representations, until after judgment was obtained for the purchase money. Fitch v. Polke, 7 Blackf. 564. Relief by injunction may be extended to enforced sales under judicial process in cases of defective title. Bartlett v. London, 7 J. J. Marsh. 641. In such case confirmation of sale should be resisted in the proceedings at law, wherein such sale was ordered. Threlkelds v. Campbell, 2 Grat. 198. So, injunction allowed, where vendor agreed not to sue for purchase price until after quantity of land shall be definitely ascertained, and brought suit before. Bullitt's Ex'rs. v. Songster's Adm'rs, 3 Munf. 55. So, where possession is merely under covenant to convey, without deed, and title prove defective. Buchanan v. Alwell, 8 Humph. 516. Or where vendor has failed to comply with his agreement to procure relinquishment of other outstanding titles, or of rights of dower. McKoy v. The heirs of Robert Patton answered in July, 1844, and stated that they knew nothing of the contract between Taylor and their father; and that they adopted the answer of the latter. Hugh M. Patton stated, that, as the agent of his father, he went to Kentucky to pay off a decree, which had been obtained by Bledsoe's heirs, and assigned to Talbott, an attorney at law, in satisfaction of a debt to Witherspoon and Muirhead; *that he re- [*140 ceived from Taylor $600 on the first note, and then drew upon him, in favor of Talbott, a draft, which he would not accept; and that he afterwards assigned the notes to Talbott, without having heard of any objection by Taylor to the title of the land. And, in conclusion, the heirs all say that they cannot exhibit the originals of the letters shown by Taylor; nor have they any testimony, written or other, to show in what manner their father derived his title from Southcombe, other than he states in his answer. In November, 1844, Hugh M. Patton appeared in the suit as administrator of his father, and adopted the answer already filed as his response in that character. In May, 1845, the cause came on for hearing, a general replication having been filed. Chiles, 5 Mon. 259; Jaynes v. Brock, 10 Grat. 211. Perpetual injunction will seldom be granted; and only until the defective title is cured, or until purchaser can prosecute at law on his covenants of warranty or has the benefit of his purchase. Galloway v. Finley, 12 Pet. 264; Mordock v. Williams, 1 Overt. 325; Moore v. Cook, 2 Hayw. Tenn. 84; Lovell v. Clinton, 2 West Va. 410; Swain v. Burnley, 1 Mo. 286 2d. ed.; Grantland v. Wight, 2 Munf. 179; Markham v. Todd, 2 J. J. Marsh. 364; Edwards v. Strode, 2 J. J. Marsh. 506. Injunction not granted where purchaser knew title was doubtful or defective. Williamson v. Runey. Freem. Ch. 112; Merritt v. Hunt, 4 Ired. Eq. 406; Jackson v. Norton, 6 Cal. 187. See, also, High on Injunctions, secs. 149, 150, 278-30S. As to the defense of a failure of title to a note given for purchase money, see note to Greenleaf v. Cook, 2 Wheat. 13. v. As to lien for purchase money, see note to Bailey |