Patton et al. v. Taylor et al. have presented a clear case for rescission, notwithstanding the title and the encumbrances on the lot might have been matters of record; for it does not present a satisfactory defence to an allegation of fraud in the sale of land as to the title, to show that the conveyance had been recorded, whereby the vendee might, with proper diligence, have discovered the defect complained of, and respecting which the fraud was practised." In this case, the vendee was in possession under a deed with covenants of seizin and of warranty, and the rescission was because of the failure of the vendor to disclose an encumbrance existing by matter of record, in the county in which the parties and the land were. These are the principles of the law applicable to sales of land, in the State from which this cause came. The principle of equity is happily expressed by the late chief justice of this court, in the case of Garnett v. Macon, 2 Brock., 250, in these words :-"Although I am entirely satisfied that there is no moral taint in this transaction, that the omission to give notice of Campbell's debt was not concealment to which blame, in a moral point of view, can be attached; yet a court of equity considers the vendor as responsible for the title he sells, and as bound to inform himself of its defects. The purchaser in making a contract may be excused for relying on the assurance of the vendor, implied in the transaction itself, that he can perform his agreement." IX. It is shown on all sides that Patton, who was esteemed wealthy when the sale was made, became hopelessly insolvent, and so died. This fact has always been held sufficient to enjoin the collection of the purchase-money where there is a defect of title, even in cases free from fraud. The purchaser who is in danger of losing his land shall not be thrown upon the warranty of an insolvent vendor. Simpson v. Hawkins, 1 *Dana (Ky.), 303. The attention of the court is asked to the remark upon this point of Judge Nicholas, at page 318. [*157 In Morrison's Adm'r v. Beckwith, 4 Monr. (Ky.), 73, the vendor's insolvency was made the ground of an injunction. And where relief by injunction has been refused to the vendee (as in the cases in 7 Monr. (Ky.), 198; 3 J. J. Marsh. (Ky.), 584; 2 B. Mour. (Ky.), 40), it was upon the ground that insolvency was not proved as alleged, not in fact existing. In all these and other cases, the rule in case of insolvency was recognized. (The rest of the argument is omitted.) Patton et al. v. Taylor et al. Mr. Justice NELSON delivered the opinion of the court. This is an appeal from the Circuit Court of the United States held in and for the District of Kentucky, by the district judge. Taylor, the complainant below, filed a bill against Robert Patton, the intestate and ancestor of the defendants, praying relief against two judgments recovered against him at law, upon securities given for the purchase-money of two thousand acres of land situate in the State of Kentucky, and sold and conveyed by the latter to the former. The bill was filed at the November term, in the year 1820; and the suit has been pending ever since. The sale and conveyance of the land took place September 3d, 1818, the consideration being $5,000, payable one half on the 30th of January, 1819, and the other in one year thereafter. The deed contained covenants for further assurance, and of warranty, and the grantee entered into possession of the premises, and has held it ever since. The only allegations in the bill upon which the complainant relied for staying the collection of the judgments, and setting aside the sale and conveyance, are, that the said Patton had no title to the land at the time of the purchase, nor since; and that he had become insolvent, and possessed no personal responsibility. The defendant admits, in his answer, that he had no legal title, and that it was, at the time, in the heirs of one Thomas Southcombe, but insists that he had purchased the land of Southcombe, had paid for it, and had been in the peaceable possession of the same, and paid the taxes thereon, for more than twenty years, and until the time of the sale; and that the complainant well knew the nature and condition of the title at the time of the purchase, and the taking of the deed. The answer also sets up an assignment of the securities taken for the purchase-money, from the defendant to Witherspoon and Muirhead, in payment of a decree in chancery which they held against him; that it was made in the presence, and with the knowledge and consent, of the complainant, and that *the suits were brought, and the judgments in question recovered, by them and for their *158] benefit. On the death of Robert Patton, the complainant revived the suit against his heirs and personal representatives, on the 13th of November, 1829. The answer to this bill, which relies mainly upon the facts set forth in the previous answer of Patton, was put in and filed in July, 1844. Patton et al. v. Taylor et al. The cause was heard on the pleadings and proofs on the 13th of May, 1845, and thereupon it was adjudged and decreed by the court, that the contract entered into between the complainant and Robert Patton, for the purchase and sale of the land for the sum of $5,000, as set forth in the bill and admitted in the answer, be rescinded and annulled; that the judgments recovered at law for the purchase-money be perpetually enjoined; and that the deed of the 3d of September, 1818, be cancelled and held for naught. The decree then provides for the repayment by the heirs of Patton of such portions of the purchase-money as had been paid by Taylor, after deducting the rents and profits which he may have received from the premises, over and above expenditures for necessary repairs and improvements; and on such repayment, the possession is ordered to be delivered up to the heirs, and a reconveyance to be made by the complainant to them, with a covenant against his own acts affecting the title; and also providing that the heirs shall hold the lands in trust for the benefit of Witherspoon and Muirhead, the assignees and owners of the judgments at law. The cause is then referred to the master, to take and state an account of the rents and profits, improvements, &c., upon the principles settled, and to report to the court. There is some evidence in the case tending to prove that the defendant, Robert Patton, represented to the complainant during the negotiation between them for the sale and purchase of the lands in question, that he held at the time the legal title; and that the complainant had reason to believe that he would be invested with it by the conveyance of the 3d of September, 1818. The circumstances, however, that Taylor was, at the time, and for several years before had been, the general agent of Patton in Kentucky to take charge of his lands in that State, including the premises in question, to pay the taxes, and negotiate sales to purchasers, lead to the conclusion, that he must himself have had some knowledge of the title, and that he was willing to risk it, on receiving a warranty deed from Patton, who was supposed to be a man of wealth. Where the truth of this matter lies, it is not material to inquire; for no such question is made on the pleadings, or was involved at the hearing. It is not surprising, there. [*159 fore, that the proofs in respect to it to be found on the record are vague and unsatisfactory; as, probably, the attention of neither party was particularly drawn to it. Indeed, it could not consistently have been, as the charge of fraud or misrep Patton et al. . Taylor et al. resentation is not to be found in the bill as originally drawn, nor in the amended bill filed some two years and a half afterwards. Nor is it made in the bill of revivor, which was filed as late as November, 1829. The relief prayed for is put, both in the original and amended bills, entirely upon the defect of legal title in Patton at the time of the conveyance, and in connection with this, his subsequent insolvency; and unless this ground alone is sufficient to sustain it, the decree of the court below cannot be upheld. And that it is not, we need only refer to the authorities on the subject. Bumpus v. Platner, 1 Johus. (N.Y.) Ch., 213-218; Abbot v. Allen, 2 Id., 519, Gouverneur v. Elmendorf, 5 Id., 79; Simpson v. Hawkins, 1 Dana (Ky.), 305, 308, 312; James v. McKernon, 6 Johns. (N. Y.), 543. These cases will show that a purchaser, in the undisturbed possession of the land, will not be relieved against the payment of the purchase-money on the mere ground of defect of title, there being no fraud or misrepresentation; and that, in such a case, he must seek his remedy at law on the covenants in his deed. That if there is no fraud, and no covenants to secure the title, he is without remedy; as the vendor, selling in good faith, is not responsible for the goodness of his title. beyond the extent of his covenants in the deed. And further, that relief will not be afforded, even on the ground of fraud, unless it be made a distinct allegation in the bill, so that it may be put in issue by the pleadings.1 It follows that the court below erred, and that the decree should be reversed, and the bill dismissed. There is another point in the case in respect to which we think the court also erred, and which we will for a moment notice, namely, the rejection of the deposition of Talbott offered in evidence by the defendants below. The deposition tended to prove that the notes given for the purchase-money had been assigned and transferred by Patton to Witherspoon and Muirhead, his creditors, with the knowledge and assent of Taylor, in consideration of which the creditors agreed to postpone the payment of the demand against Patton. Talbott was rejected on the ground of interest, as it appeared upon the face of his own deposition,-1. as surety for Patton in the suit at law; and 2. as assignee of the notes for the benefit of Witherspoon and Muirhead. In answer to the first ground, it is sufficient to say, that 1 FOLLOWED. Refield et al. v. 8 Otto, 60. CITED. Van Rensselaer Woodfolk, 22 How., 328; Noonan v. Lee, Black, 508; Peters v. Bowman, v. Kearney, 11 How., 322. Fourniquet et al. v. Perkins. *judgments had been recovered by default in the suits at law in favor of Patton. And to the second, that, [*160 according to the deposition, Talbott had no interest whatever in the result of the suit. He held the notes as a naked trustee, the proceeds of which, when collected, were to be applied to the payment of the debt of Witherspoon and Muirhead, his clients. He had no charge upon the fund, by any agreement or understanding with Patton, or his clients, for costs or commissions, as attorney or otherwise, that would make him an interested witness. There was no foundation, therefore, for the exclusion of his evidence. But it is unnecessary to pursue this inquiry, as the ground already stated sufficiently disposes of the case. Decree below reversed, and bill dismissed, with costs. ORDER. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Kentucky, and was argued by counsel; on consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be and the same is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to dismiss the bill of complainant, with costs. EDWARD P. FOURNIQUET AND HARRIET JANE FOURNIQUET, HIS WIFE, APPELLANTS, v. JOHN PERKINS.1 The jurisdiction of courts of probate in Louisiana is confined to cases which seek an account and settlement of effects presumed to be held by the representative of a succession. It has not jurisdiction over cases of alleged fraud or waste, or embezzlement of the estate. The District Courts are courts of general civil jurisdiction.2 Hence, where a petition was filed in the Court of Probate against an administrator, praying that he might account and also be held liable for maladministration and spoliation, it was proper to transfer the case for trial to the District Court. The judgment in the District Court, being generally for the defendant, must be supposed to cover the whole case, and not to have rested upon only a branch of it, viz., a release which was pleaded by the defendant. 1 Further decisions, 14 How., 313; 16 Id., 82. 2 See White v. Cannon, 6 Wall., 443-450; Dow v. Johnson, 10 Otto, 182. |