#### BARTHEUS J. CRAWLEY vs. AUGUSTINE TIMBERLAKE.

A vendor of land cannot, after the contract, cut timber for sale, unless the privilege be reserved, although he is to retain the possession for some time.

But where a vendor is to retain possession of land, used for the purposes of agriculture, for another year, he may use the tract for cultivation, as a judicious owner would himself do or would allow a tenant to do ; and, therefore, if, according to the state of the property, the proportion of wooded and cleared land, and the course of crops or usages of agriculture in the particular part of the country, it would be prudent and proper to clear the land, from which the wood was cut, the wood cut in that way might be sold by the vendor.

Ordinarily a Court of Equity will not compel a vendee to accept even a doubtful title, though protected by covenants from the vendor, unless he has agreed to take the title at his own risk.

But where the conduct of the vendee satisfies the court that he has intentionally renounced his right to the judgment of the court upon the title, and, for some reason of his own, has chosen to take a conveyance without cx-.anf nation of the title, though he has had full opportunity to make such examination, the court will decree a performance on his part without enquir-ing into the title.

This matter of waiver or renunciation is not a conclusion of law Horn anyr particular incident, but is a conclusion of fact, deducible from all the acts of the parties, as evidence’of the intention of the purchaser in acting as he did.

Where the contract was for a conveyance in fee, and the deed executed conveyed by mistake an estate for life only, the vendor will of course be decreed to execute a conveyance in fee, before he can ask any assistance from the court.

The cases of Shine v Wilcox, 1 Dev, & Bat. 631, and Clanton ■v Burgess 2 Dev. Eq. 13, cited and approved.

This cause was removed to this court by consent of parties, from Caswell Court of Equity, atySpring Term, 1843. The facts stated in the plaintiff’s bill are as follows :

In November 1835, the parties made a written contract, *463whereby the plaintiff agreed to sell to the defendant a tract of land containing 166 acres, and situate in Caswell connty, on which the plaintiff then resided, at the price of $1700, payable on the 25th of December, 1836, at which time the plaintiff was to give the defendant possession, and make him a good title. In December, 1836, the plaintiff let the defendant into possession, on the payment of $300, which was all he could make at that time. On the 25th of February, 1837, the defendant made a further payment of $833, and the plaintiff then made him a deed for the land, containing an acknowledgement of the payment of the whole purchase money, the plaintiff being ignorant of the effect of that clause at law, and expecting the defendant to pay him the residue of the price and interest, as he might be able.— But upon demand, the defendant refused to make any further payment, and being sued therefor, he pleaded in bar the release contained in the deed. Besides the stipulation to convey the land, the plaintiff bound himself to have certain repairs of the dwelling house on the land, that were then going on, completed.

In April, 1840, the plaintiff filed his bill praying that the release might be put out of his way, and that an account might be taken of the purchase money and the payments made therefor, and that he might have a decree for the balance that might'be found due to him in respect thereof,

The defendant pleaded the release in his deed, and upon that the cause was Brought to this court and the plea overruled. 1 Ired. Eq. 346. The defendant then answered, and the parties proceeded to proofs, and now the cause comes back, upon an order of removal, for hearing. The answer states that the defendant, at the time he made the contract, resided in Mecklenburg county in Virginia, and did not know the boundaries of the land, that he wished to remove from Mecklenburg, and purchased the land from the plaintiff for a place of residence, that during the treaty the plaintiff represented to the defendant that the dividing line between North Carolina and Virginia, which is the northern boundary of the land in question, was about forty or fifty *464yar(js to the north of the dwelling house, and so included a parcel of land, (which turns out to be eight or ten acres, according: to the-defendanl’s allegation,) and a fine spring , , , ° thereon and convenient to the dwelling house, which was that used by the plaintiff and expected to be used by the defendant, and that without having the use of that spring the defendant will suffer great inconvenience : That on the south side of the dwelling house a public road runs within a few yards, so that there is on that side no convenient situation for necessary out-houses for a family: And that unless the defendant had believed that the line, forming the northern boundary, had been as by the-plaintiff was designated, as before stated, and included the land containing the spring and the area specified, he would not have made the purchase : That at'the time the defendant'paid the sum of $300, and took possession, he did not know, that the line did not run as it had been represented to him, but that he then believed, that it did : That soon afterwards, he learned from the neighbors, and believes, that the line did not so run, but that it ran within three' feet of the- dwelling house and through some of the out-houses, and left out the spring, which belonged to one Alexander Kent, and that the plaintiff had offered to purchase it from Kent, and could not.— The answer then states, that the defendant has not had a survey made of the land, and he cannot therefore state) whether or not the tract contains 166 acres, exclusive of that contained between the line on the north and the line shewn to him as aforesaid, but that at all events, the loss of the spring and of the slip of land on the northern side of the tract very much impair the value of the land, as a place of residence, and would have prevented the defendant from purchasing, had he known the true state of the boundary and title. 11 Blit” the answer proceeds, “having sold his residence in Virginia, in consequence of his supposed purchase as aforesaid, and paid $300 of the purchase money after his removal, and before lie was apprised of the imposition which had been practised oir him, he could not conveniently rescind the contract, though he determined to resist the pay*465ment of the amount promised, for the reason of the false representations aforesaid. This defendant did not call for a deed, but the plaintiff, anxious to consummate the imposition which he had begun, had it prepared and tendered it, with the acknowledgment of the full payment of the purchase money, and the defendant after paying the further sum of $S33, received said deed.” The answer further states, that the.plaintiff did not have the work done on the house, specified in the contract, and that the defendant had been compelled to pay about $30 for completing it: And also, that between the period of the sale and possession taken by the defendant, the plaintiff cuta large quantity of valuable timber for sale, and sold the same for considerable sums, of all which the defendant had no knowledge until he came into possession. And for this reason and the'misrepresentations of the plaintiff, the defendant insists he can have no relief.

The answer further states, that the defendant has discovered, that the deed made by the plaintiff conveys only a life estate, and not' the fee, and insists that for that reason- also the plaintiff is not entitled to a decree.'

Morehead & Kerr for the plaintiff.

Graham' for the defendant.

Ruffin, C. J.

The deed, which' the plaintiff executed, has not been exhibited by'either party, so that the court cannot declare how it operates, whether as a conveyance off the fee, or of an'estate for the life of the defendant. Supposing it to be the former, the court is of opinion, that the plaintiff would be entitled, without any further act on his part, to a decree for the balance of the purchase mohéy according to' the contract, and interest'from December 25th, 1836, subject to proper deductions for the repairs not made, and" fob the" waste committed, if any. As to the repairs, there is evi-dencb'j)rima facie to raise a claim for some deduction ; and as to waste, there is evidence sufficient to direct an enquiry. *466But in conducting that enquiry, it is proper the master should have the benefit of the Court’s instruction upon a point, which raised on the evidence. On the part of the defendant it seems to'be supposed, that he may claim a-deduction for all the sales of wood by the plaintiff during that year, without regard to the purpose for which it was cut. While the plaintiff insists, that he is not liable at all, because the wood sold by him was cut from his new-ground,- or land then cleared for cultivation. We think, the true rule is between them. A vendor cannot cut timber for sale,after the contract, unless the privilege be reserved. On the other hand, if a vendor is to retain possession of land, used for purposes of agriculture, for another year, it must be assumed, that he is to use the tract for cultivation, as a judicious owner would himself do, or would allow a tenant to do,- and, therefore, if, according to the state of the property, the proportion of wood and cleared land, and the course of crops or usages of agriculture in the particular part of the country, it would be prudent and proper to-clear the land from-which the wood was cut,-we should hold, that the wood cut in that way might be sold by the vendor. It may be for the benefit of the vendee to open the land and prepare it for cultivation, and, at any rate, it is one of the reasonable advantages reserved by the vendor in- retaining the use for a period, and the sale of the wood as a part of the fruit of his labor employed in a reasonable use of the land. It stands, we think, much upon the same ground with' the rule laid down respecting waste, as between a tenant for life and the remainder-man, in Shine v Wilcox, 1 Dev. & Bat. Eq. 631. With those exceptions the plaintiff would be entitled to have the principal and interest due him computed, and an immediate decree therefor, provided he has conveyed in fee. For that position the reasons will be stated. A Court of Equity is always inclined to see, that a vendee gets a good title and will not compel him to accept one that is even doubtful, though protected by covenants from the vendor, unless he has agreed to take the title at his own risk, or by his conduct satisfies the court, that he intention*467ally renounces his right to the judgment of the court upon the title, and for some reason ot his own, chooses to take a conveyance without examination of the title. Of ,, course, an agreement, that thetme is at the risk of the purchaser, stands upon its own obligation, and needs no explanation. What may or shall amount-to such a renunciation or waiver requires, perhaps, some observations, in order that the opinion of the court may be perfectly comprehended.— Generally speaking, one would expect a purchaser, before he did any thing in execution of a contract, to satisfy'himself, in the first place, that the title he would get would 'be such as he had contracted for; and, therefore, when he takes steps under the contract, such as the payment of the price and entering into possession, a presumption arises either that he is satisfied as to the title, or with the covenants he is to get for it. Hence in a number of cases it has been held, that if a purchaser take and remain in possession a considerable time, after the abstract is delivered to him, making no objection to the title, he waives his right to an examination of the title, and, and, at the instance of the vendor, a specific performance will be decreed at once, without a reference as to the title. Fleetioood v Green, 15 Ves. 594. Margravine of Anspach v Noel, 1 Mad. 310. It is true, that this matter of waiver is not a conclusion of law from any particular incident, but it is a -conclusion of fact, deducible from all the acts of the parties, as evidence of-the intention of the purchaser in acting as he did. Hence, nothing can be inferred from taking possession, if it-be agreed, that it shall not be deemed a waiver of objections >to the -title. So possession taken, by the agreement, at the time of -entering into the contract of purchase, has been held to argue nothing on this point, because one cannot be supposed to give up defects of title, of which he had and would have no means of information, until he should get the abstract. Kirtland v Pounsett, 2 Taunt. 145. Stevens v Guffy, 3 Russ. 171. But in Burnett v Brown. 1 Jac. & Walk. 168, a purchaser, after the delivery of the abstract, which disclosed a reserva tion of the right .of sporting, not before communicated to *468him, entered into possession and paid the greater part oí the purchase money, without objecting to the reservation, and he was considered as having waived the objection, though jie altemarc¡s took jt, and he was compelled to performance without a reference and without compensation, though the seller’s solicitor had, without authority, promised reasonable compensation, when the vendee made known his claim for it. The cases which have been stated arose upon articles, on bills for specific performance, and if in those cases it was decreed without deciding the purchaser’s objections to the title or even hearing them, much more is the court obliged to hold the defendant bound by his conduct in this case.— He did not enter into possession as soon as the bargain was made, and without the opportunity of making surveys and examinations of the title. He had more than a year to satisfy himself on those points, and then, without taking any step to ascertain, whether a good title could be made to any part of the land, or whether the boundaries of the seller’s conveyances would cover all the land shewn to him upon the treaty, he, at the time appointed, sought to be admitted, and was admitted into possession upon the payment of part of the purchase money, promising payment of the residue as soon as he could. He afterwards made further payments, in all, more than half of the purchase money, and has remained in the enjoyment of the estate ever since, and as far as he states, or as appears to the court, made no objection to the title or to the parcels, until they were stated in his answer in this canso. He made no application to the plaintiff to rescind the contract, or to allow a compensation in respect of any deficiency in the premises sold or represented to be sold. The case, thus viewed, ss fully within the adjudications cited. For, if from any acts could be deduced a waiver of objections, these afford a satisfactory ground of inference and conviction. But this case is much stronger than any of those cited ; in that, two months after possession taken, and after the defendant had actual and exact knowledge of every objection he has been able, since, to raise, he made his second payment, and took a deed, as in *469execution of the contract. Under such circumstances, wc must hold that every thing was waived, but such remedy as the covenants of the deed would give, or for such matters as , ' . would not be within the deed, namely, the repairs or waste. Clanton v Burgess, 2 Dev. Eq. 13. But such waiver, as a fact, is not left merely to inference from other facts.

The answer exphtly slates that the defendant did not rescind the contract on account of his own convenience, although he was aware of the objections, and knew, therefore, that he could not be compelled to go on. But he chose to do so, and accepted a conveyance for the land, as the plaintiff said he had sold it to him, and gives as his reason, besides the convenience ol having a residence, that the deed had the clause of release of the purchase money, of which he meant to pay no more, as he thought the sum he had paid an ample price. Such a declaration surely puts an end to all claim of the defendant to favor, or an inclination of a court of justice to relieve him from a full compliance with the contract on his part. The plain meaning of it is, that, because the plaintiff, as he coceived, had got a good bargain out of him, or, if he will, had taken some advantage of him, he, the defeudant, was justified in getting any advantage he could over the other party, whereby he would not merely be relieved from the contract, or be justly compensated for deficiencies as estimated by an impartial tribunal of the country, but .would get clear of the payment of a large part .of the purchase money, and at the same time hold the laud sold, or said by the other party to have been sold to him.' — ■ For the sake of overreaching the vendor in the point of the .purchase money, he made up his mind to take the deed, as it ■was, for the land as described in it, and for the title which .the seller could make, and he.canpot afterwards, when equity deprives him of the release, say he did not get a good title. The .plaintiff is not asking a decree lor specific performance. He alleges, that he has performed, .and the defendant cannot deny, that he gave the plaintiff reason to suppose, that he was satisfied with his performance. The .plaintiff .asks only, that a release .obtained from him by sur*470prise, expressing the payment ’Of money which never had been paid, should not conclude him, but that the defendant should pay him the money, thus expressed to have been pa¡^ The clefendaiut now admits 4he surprise, tiiat the money was not paid, and that he accepted the deed for the sake of the release, and thereby got the land conveyed without paying the money he contracted to pay, and when the other thought him still bound for it. It would seem, that, in such a case, the only decree should be to declare the release to have been obtained by surprise, and that, notwithstanding the same, the money should be paid. The title cannot be gone into, for, having accepted it, however unworthily the motive, the defendant cannot retract his acceptance and now raise objections, in which he before acquiesced.. We have, therefore, not thought it necessary to look into the evidence upon the question of boundary, or of the representations made by the plaintiff at the time of the contract. We are satisfied, that all parties understood the Virginia line tobe the northern boundary of the land, but we think it far from clear that .the plaintiff represented that line to run at any particular place, or if he had so represented it, that it would not in fact include the spiiug spoken of and the land to the north of the house. But, in considering the equity of the plaintiff’s case, we assume that the allegations of the answer as to the title are true, and hold, that, nevertheless, the defendant canot in this way take advantage of defects, that, with a perfect knowledge of them, and with a view to his advantage therein, he once, with his eyes open, waived. — . This case has been thus far treated, as if the deed were for the fee. It is said in the answer, to be only for life, and it may be so, though we can perceive no reason, why the defendant has hot shewn it to us, that it might be seen what it is. But should the answer give its true character, it would not affect, the plaintiff’s .right to a decree for the residue of the purchase money, but -would only call for a decree that he should first execute another deed for the land, as described in the deed already executed, in fee simple, to be approved by the Master. Wc presume, that deed calls for Ihe.State *471line as the northern boundary, or, at all events, that it sets out the boundaries correctly and'satisfactorily to the defendant, since he accepted it, and the objection in the answer is ’ , , , , . ........ , not, that the boundaries are not therein described as they were represented, but that they do not cover all the land it was represented they did. Therefore, the only defect in the deed is the mistake in the estate, which was a mere mistake of both parties. But as evidence of the defendant’s waiver of objections to the title, a deed of the one kind is as strong as the other would be, taking the one made to have been so made by mistake, which the ahswer does not question.. — . Still the plaintiff ought to be required to make another deed? such as he admits he was bound to execute, and says he had executed, in the same manner as he would be required to do, if this were a bill for specific performance, and-it were decreed without a referencias to the title.

Therefore, if the defendant chooses, he may have a reference to the Master to enquire, whether the deed made to him does convey the fee simple, and, if not, to enquire and settle a proper one for that purpose for the same land. And there-must be a reference to state the sum due the plaintiff in the-premises, and what deductions are to be made therefrom, if any, by way of compensation for the repairs not made by the plaintiff, according to the contract, and for waste in the improper cutting-of timber or wood, and selling the same from the land by the plaintiff- after the sale by him.

Per'Curiam; Decreed accordingly;