grounds set forth in the bill and its amendment for the rescission of an executed contract, even if all the allegations had been admitted in the answer. What are those allegations? Why, that the complainant, Taylor, purchased from Patton, the defendant, 2,000 acres of *land for $5,000, for which he gave two several prom *142] issory notes. That Patton executed a conveyance to complainant for said land, with a covenant of general warranty. That at the time of said purchase, complainant "entertained no doubt that the said Patton had a good title to the said land." That complainant has since discovered that the said Patton has no title to the said land, and that defendant has nevertheless commenced actions on the said notes; and that, at the time of said purchase, defendant was supposed to be a man of opulence, but has since become insolvent. This embraces every material averment of the bill and amendment. A purchase, conveyance with general warranty, defect of title, ignorance on the part of the vendee of such defect, and the insolvency of the vendor, compose the gravamen of the complainant's allegations. There is no charge, either technically or substantially, of fraud, artifice, misrepresentation, or circumvention of any sort, actual or constructive. In discussing the legal sufficiency of this bill, we leave out of view all of the cases cited in the printed brief on the other side, in which misrepresentation, or fraudulent concealment, or fraud of any kind, formed an element. For the present we take the bill as it is. The decisions (and we quote, more especially, those in Kentucky) may be reduced to the following heads, as to the rescission of contracts in the absence of fraud: 1st. Where the contract is executory, the vendee may, under circumstances, obtain a rescission, if the vendor has no title. Miller v. Long, 3 A. K. Marsh. (Ky.), 326; Cummins v. Boyle, 1 J. J. Marsh. (Ky.), 481; Gale v. Conn, 3 Id., 540; Payne v. Cabell, 7 Monr. (Ky.), 202; Waggener v. Waggener, 3 Id., 556. 2d. Where the contract is executed by conveyance, with warranty of title, there can be no rescission in any case that has not been tainted by fraud. Simpson v. Hawkins, 1 Dana (Ky.), 305; 1 J. J. Marsh., 481; Gale v. Conn, 3 Id., 540; Wiley v. Fitzpatrick, 3 Id., 583; Campbell v. Whittingham, 5 Id., 100; 7 Monr., 202; Thompson v. Jackson, 3 Rand. (Va.), 504. 3d. There is no relief in equity, by injunction or otherwise, where the contract has been executed by conveyance Patton et al. . Taylor et al. with warranty, and the vendee let into possession, unless the warranty has been broken, and an eviction taken place. Simpson v. Hawkins, 1 Dana (Ky.), 305, 328; Rawlins v. Timberlake, 6 Monr. (Ky.), 232; Taylor v. Lyon, 2 Dana, 278; Luckett v. Triplett's Adm'r, 2 B. Monr., 40; Bumpus v. Platner, 1 Johns. (N. Y.) Ch., 218; Abbot v. Allen, 2 Id., 523; Edwards v. Morris, 1 Ohio, 532. *4th. There may be relief in equity of some sort, as by arresting the payment of the purchase-money, or a [*143 part thereof, in case of eviction and the insolvency of the warrantor, or the appropriation of the purchase-money to remove an incumbrance, where the warrantor is insolvent and unable to remove it, but not a rescission of the contract. Morrison's Adm'r v. Beckwith, 4 Monr. (Ky.), 75; Rawlins v. Timberlake, 6 Id., 232; Simpson v. Hawkins, 1 Dana (Ky.), 305; 2 Id., 278, 279; 2 B. Monr. (Ky.), 40. 5th. Possession taken generally amounts to a waiver of the ordinary equitable right of objection to the title. Calcraft v. Roebuck, 1 Ves., 226; Burrough v. Oakley, 3 Swanst., 168; Fleetwood v. Green, 15 Ves., 594; Margravine v. Noel, 1 Mad., 316; Burnell v. Brown, 1 Jac. & W., 173; Fluyder v. Cocker, 12 Ves., 26. II. But suppose we are wrong in this view of the case, still it is contended that the essential allegations in the bill have neither been admitted nor proved; or, in other words, that, upon the pleadings and proof, the complainant was not entitled to the relief sought. A preliminary inquiry of importance arises as to the admissibility and effect of the letters contained in the record. The only letters alleged to have passed between Patton and Taylor, which have been so proved as to make them legal evidence against the defendant, are those marked A and B, on pages 32 and 33 of the record. The letter in Patton's name, which is made an exhibit in the case, and is found on page 4 of the record, is not proved to have been written by Patton; and the letters from Taylor, alleged copies of which are filed as exhibits with the amended bill, and are found on pages 8, 9, 10, and 11 of the record, are not proved either to have been written or received. They are, consequently, not evidence in the case. They are not admitted in the answer to the amended bill, and are consequently denied, and are no proof against the defendant, though (being allegations of the complainant) they are evidence in his favor. 2 Dan. Ch. Pr., 974-976; Young v. Grundy, 6 Cranch, 51. If we are right in this, then the complainant's case is Patton et al. . Taylor et al. stripped of every vestige of support from evidence as to the essential allegations of the bill. But we go further, and assert, that if these letters were all proved, as alleged, the case of the complainant would not be materially changed. How would the case then stand upon the pleadings and proof? The vital allegation in the bill is, that, at the time of the purchase, complainant "entertained no doubt that Patton had a good title to said land," but has since dis*144] covered that he had none, &c. (Record, p. 3.) The answer (p. 6) denies the allegation of ignorance of the defect on the part of the complainant, and avers, on the contrary, that he was his (Patton's) agent for many years; well knew the nature of his titles in general, and well knew the title to these 2,000 acres in particular; and was well apprised of the defective link in the chain of title thereto; and accepted a deed with general warranty, relying on the warranty, &c. Here, then, the parties are at issue. The complainant alleges that he was ignorant of any defect in the defendant's title, and the defendant positively denies that allegation. Has the complainant proved it, even admitting all the letters in the record to be properly in the case? We think that not only has he failed to prove the allegation, but that the evidence in the case fully sustains the denial. There is not one scintilla of direct evidence that the complainant made this purchase in ignorance of the title. And the only indirect or circumstantial evidence of that fact is, the general presumption that a man would not buy a defective title, knowing it to be so, and the literal construction of a letter of the 13th July, 1818. (Record, p. 32.) That letter is not (like the others) an exhibit in the case, but is introduced on proof of handwriting. It is relied on in the brief on the other side as the main prop of the complainant's case. An interpretation is given to it entirely different from that which we shall hereafter show properly belongs to it; but take it as the other side understand it, and does it support the allegation in the bill, that Taylor was ignorant of the state of Patton's title? What is their interpretation of it? Why, they make it amount to a misrepresentation by Patton to Taylor respecting the title; they make it amount to an assertion that he (Patton) had a conveyance of the land to himself. Now, suppose the letter does amount to a misrepresentation of the title (which we deny), does that prove Taylor's ignorance of the real state of the title at the time of the purchase? We think not, for two reasons:— Patton et al. v. Taylor et al. 1st. That there is no logical or legal connection between the falsehood of one party and the belief of the other party in that falsehood. It is a non sequitur, as well in law as in morals, that a man must be ignorant of the truth because another man has uttered an untruth in his presence. 2d. Because this letter was written six months after the time when the bargain was concluded by the acceptance of Patton's previous offer. The amended bill alleges (Record, p. 8) that the complainant *agreed to the purchase by a letter dated 30th January, 1818, and exhibits a copy of the letter; and [*145 yet the brief on the other side asserts that it was the letter of the 13th of July, 1818, which induced Taylor to make the purchase, which Taylor himself says he had made by letter the January previous, and produces the letter to prove it. It is manifest, then, that the complainant has utterly failed to prove the most important allegation in his bill. Having thus shown that the complainant's case, as set forth in his bill, is not sufficient in law for the rescission of an executed contract, and that, if it were, it is not supported by requisite proof, we would now ask the attention of the court to a position taken by the other side, in the printed brief, though not disclosed by the pleadings. It is, that the proof presents a clear case of actual fraud, such as courts of equity have always recognized as sufficient in itself for the setting aside of any contract. To this view of the case we have several answers, either of which in itself would be sufficient: 1st. Fraud is not alleged in the bill, either formally or in substance; and, consequently, if it should be proved, cannot be made the ground of a decree. It should have been put in issue by the pleadings. Vattier v. Hinde, 7 Pet., 282; Boone v. Chiles, 10 Pet., 177; Bein v. Heath, 6 How., 241; also, 3 Rand. (Va.), 507; 5 Johns. (N. Y.) Ch., 82, 83; 11 Ves., 239. 2d. There is nothing proved which is a sufficient ground for the cancelling of an executed contract, even admitting all the letters to be properly in the case. We take the law as it is laid down by this court in Smith v. Richards, 3 Pet., 36, adopting the views of Justice Story in 1 Eq. Jur., §§ 200, 202. That a misrepresentation, in order to constitute a fraud relievable in equity, must be of something material, constituting an inducement or motive to the act or omission of the other, and by which he is actually misled to his injury; and it must be of something in which the other party places a known trust and confidence in the Patton et al. . Taylor et al. other, and not equally open to both parties for examination and inquiry. Let us apply this doctrine to the facts in this case. The only representation of any sort, as to title on the part of Patton, to be found in the whole record, is the letter of July 13th, 1818. In this letter Patton says:-' "The land patents are in the name of Thos. Gaskins, for whose services the land was rendered, were by him to Wm. 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." *On this letter Mr Loughborough relies to make out *146] his proof of fraud; and in it (if anywhere) resides all the misrepresentation to be found in the case. With regard to this letter, we would first remark, that the character and relation of the parties, and the circumstances of the case, go strongly to show that it never was intended by the writer, and was never understood by him to whom it was written, to convey the idea which a casual reading of it might convey to a stranger. There were relations between these parties which rendered an indistinct allusion as intelligible as a labored explanation. Taylor was the agent of Patton, who, in regard to these lands, was himself the agent of Southcombe, in whose name these lands had for years stood and been taxed, and in whose name Taylor himself had for years paid those taxes. Patton knew that Taylor was aware of Southcombe's title, and yet he sets down and writes to Taylor a letter, which, if it meant what the other side suppose, he well knew Taylor would at once perceive to be false. If the expression "to Hicks & Campbell, of whom I received, and will give you a deed, with a warranty," means that Hicks & Campbell had conveyed this land to him in his own name, why, it was not only a falsehood, but the most idle of all falsehoods, because told to a man who he knew was perfectly aware of the intermediate title of Southcombe. The parties to this transaction were no higglers for a bargain; they were men of character and standing; they were men of sense. The construction, then, which would make a single expression in a hasty letter the ground of so serious an accusation against such a person should be an unavoidable construction. Such is not the case here. There is a plain and fair construction of this expression, which is consistent with the truth and the good faith of Patton. It is the literal meaning of the language. He did receive a deed from Hicks & Campbell, not in his own name, but in the name of his principal, Southcombe; and he means exactly what he means |