Clarke v. Hardgrove

Allen, J. delivered the opinion of the Court. The Court is of opinion, that as the appellant has clearly shewn that at the institution of his suit the title J ' to a portion of the land conveyed to him was defective, he had a right, notwithstanding a deed with general warranty had been made, to enjoin the collection of the purchase money; Koger v. Kane, 5 Leigh 606, and cases there cited; and that such right is not impaired though the vendor is seeking to collect the purchase money, not directly from the purchaser, but from a third person on a collateral security assigned to him by the purchaser: It not being incumbent upon the purchaser, in case of such clear defect of title, to risk the hazard of the vendor’s solvency. The Court is therefore of opinion, that said Court erred in dismissing the bill and amended bill of the plaintiff. Decree reversed with costs, injunction reinstated, and cause remanded with instructions to enter a decree that unless the appellee shall within a reasonable time to be prescribed by the Court, perfect the title to so much of the land conveyed as is shewn to be defective, that an account be directed to ascertain the relative value of the part, or the interest therein, to which the appellee cannot make a good title, and for further proceedings in order to a final decree.