Thayer

delivered the opinion of the court. Wells, Justice, concurred.

Of the various assignments of error, there is but one which cannot be deemed frivolous.

The answer sets up that the plaintiff was not the lawful owner of, and has no title to, the land conveyed.

To this objection the plaintiff urges, that his contract was only to execute and deliver a warrantee deed, and to require more, would be to impose on him an obligation which he had not assumed.

The object of the party in bargaining for a warrantee deed to the land, is to obtain a good title, and if this object cannot be attained, the contract is at an end.

The question to be determined is, whether such a defence is good in an action of this kind, and whether the defence as set up is good in this action.

In countries where the equity and common law jurisdictions are separate systems, it is well settled that such a defence at common law is not admissible, and the usual practice is for defendant to file his bill in chancery, where by proper allegations, he may enjoin the suit at law, and obtain a rescission of the contract. In this State we have a mixed system. The jurisdiction of the law and equity are blended together, and…