PEYTON S. HENRY, Adm’r., against WILLIAM H. ELLIOTT, Adm'r.
Where one, who had only a life-estate in land, made a deed for a fee simple, and the deed contained a warranty in fee, and the vendee, knowing of the defect in the title, gave his notes for the purchase-money, upon which judgments were obtained, it was held that a court of equity would not interfere by injunctive process to restrain the collection of any part of these judgments, but would leave the vendee to his action on the warranty, it appearing that the warrantor was solvent.
Cause removed from the Court of Equity of Bertie county.
Jordan D. Elliott, the defendant’s intestate was seized of an estate by the curtesy in a certain tract of land, the remainder of which was in his two children, Richard H. and Sarah Elliott. Jordan D. Elliott being so seized, made a deed to Richard R. Henry, the plaintiff’s intestate, purporting to •convey the fee simple estate in the land in question, and warranting the title for himself, his heirs, executors, &c. Richard R. Henry, the vendee, at the same time gave three notes for the purchase-money, amounting to five hundred and fifty dollars. The bill admits that Richard R. Henry, at the time •of the purchase, was aware of the fact, that the vendor, Elliott-, had only an estate by the curtesy in the land in question, but avers that said Elliott, at the time of the sale, pro-*176raised to procure a deed for the remainder from his children. This allegation was denied by the answer. The vendee, Henry, applied to the children of Jordan D. Elliott to convey him the title to the remainder, which they refused ..to do. After such refusal to convey, the defendant, "William II. Elliott, as administrator of Jordan D. Elliott, who had. died in the meantime, presented the notes in question and demanded payment, one of which was paid by Richard R. Henry, but. he refused to pay the others, whereupon suit was brought upon them, against him, and rivived after his death against the present plaintiff, and judgment obtained in the Superior Court of Bertie county, and execution issued thereon. This bill is filed against William H. Elliott, the administrator of Jordan I). Elliott, and seeks to obtain an injunction to restrain the collection of the judgment on these two notes, on the ground of a part failure of consideration.
The bill‘admits that at the time these notes were given,. Richard R. Henry relied on the covenant of warranty, in the deed, to secure him from loss. And there was no allegation that the estate of Jordan I). Elliott was not sufficient to pay all damages which might have been sustained by reason of the breach of the covenant of warranty.
Upon the coming in of the answer, the injunction, which had been granted in this cause, was continued to the hearing, and the cause being set down for hearing, was transferred to-this Court by consent.
Winston, Jr., for the plaintiff.
Oaro'ett, for the defendant.
Battle, J.
The plaintiff, admitting in his bill that his intestate, when he purchased the land in question, know that the defendant’s intestate had but a life-estate as tenant by the-curtesy in it, puts his claim to relief, in this Court, upon the alleged ground, that the vendor promised to procure from his two children, who were the owners of the remainder in fee in the land, deeds to the vendee for such remainder. This allegation is not admitted by the answers, and there is no proof in support of it, so that the defendant, contends that tha *177bill must be dismissed for the defect in the proof of a material allegation.
But the plaintiff insists that, as there was a partial failure of the consideration, lie cannot, in equity and good conscience, be required to pay the full price of the land. Supposing that there was no objection to his recovery, because of the vari» anee between his allegata et pi'obata, there is a decisive objection to his claim, it is, that he admits that his intestate, when he purchased the land, relied upon the vendor’s warranty as a security for the amount paid, until the alleged verbal agreement of the vendor, to perfect the title, should be complied with; and there is no pretense that the intestate’s estate is not fully sufficient to answer all the damages, which he can recover in an action on the covenant of warrant}'. He had then a full remedy at law ; and he has it still, unless by his own act of purchasing the outstanding title, lie has deprived himself of it. The cases of Hauser v. Mann, 1 Murphy 411, and Richardson v. Williams, 3 Jones’Eq. 116, cited and relied'upon by the plaintiff’s counsel, were decided mainly upon the ground, that the defendants, who were non-residents of this State, and had no property here, out of which a recovery, at law, could be made effective, ought to be enjoined, in equity, from the recovery of a debt or damages, which could not be recovered back, at law, except by means of a suit in another State. The principle of such cases is, that our court of equity will give redress where, otherwise, the party seeking it, would-be driven into the courts of another State, for the purpose of obtaining it. The other case, of Jones v. Edwards. 4 Jones’ Eq. 267, was simply an order for continuing an injunction until the hearing, on account of the evasiveness of the defendant’s answer. Neither case affords any support for the argument, that the court of equity ought to interfere in behalf of a person, who has a plain and adequate remedy, at law, in our courts ; particularly, when he had that remedy in contemplation, and relied upon it, when he entered into the engagement, out of which the controversy arises.
Pee Oueiam, Bill dismissed with costs.