under the influence of opiates to such an extent that he was not conscious of what he was doing, signed a contract by which he agreed to release appellee of any liability in consideration of the payment of appellant's board bill, medical attendance, $100 in money, and transportation to his home in Denver, Colorado. The $100 agreed to be paid was deposited with the agent of appellée at its nearest station, and when appellant had fully recovered his mental faculties he applied to the agent for transportation to Louisville, Ky., which place was en route to his home, but the agent refused to give the transportation unless appellant would receive the $100 under the contract. Appellant alleges and testifies that he was, by reason of the wrong of appellee, among strangers, moneyless and homeless, and, therefore, was compelled to accept the money in order to get transportation. Appellant also testifies that he had never seen, nor did he understand the terms of the alleged agreement at or before the time he received the $100 and the pass to Louisville.

We must assume then, for the purpose only of determining the correctness of the ruling of the lower court in granting the peremptory instruction to find for appellee, that appellant, by reason of the gross negligence of appellee, was injured, and thereby compelled to accept the money under a contract that he was fraudulently induced to enter into and the terms of which he did not understand at the time he accepted the money and the transportation to Louisville.

The court below assumed that, conceding that the contract of compromise was obtained by fraud on the part of appellee and the necessitous condition of appellant was the result of the gross negligence of appellee, the evidence showed a confirmation. The necessary ingredients of a confirmation of a contract obtained by fraud are thus stated by Kerr on Fraud, 269: “In order that an act may have any effect or validity as a confirmation it must clearly appear that the party confirming was fully apprised of his right to impeach the transaction, and acted freely, deliberately, and advisedly, with the intention of

confirming a transaction which he knew, or might, or ought, with reasonable or proper diligence, to have known to be impeachable. If his right to impeach the transaction be concealed from him, or a free disclosure be not made to him of every circumstance which is material for him to know, or if the act takes place under pressure or constraint, or by the exercise of undue influence, or under the delusive opinion that the original transaction is binding on him, or if it be merely a continuation of the original transaction, the confirmation operates as nothing."

There was evidence tending to show that appellant did not understand the terms of the contract of compromise at the time it was entered into; that he had never seen it and was not fully and correctly informed of its contents at the time of the alleged act of confirmation. The decided preponderance of the evidence is to the effect that appellant did understand its terms, and that he freely, voluntarily, and with the intention to confirm the original contract accepted the pass and the money, but it was not for the court to weigh the evidence upon these matters, as was done by giving the peremptory instruction.

It is insisted that nothing short of duress at common law will vitiate or annul a contract, and upon this idea the court below held that pecuniary distress was not duress. But it is not necessary that there should be technical duress to avoid a contract.

"Whenever one person is in the power of another, so that a free exercise of his judgment and will would be impossible, or even difficult, and whenever a person is in pecuniary necessity and distress, so that he would be likely to make any undue sacrifice, and advantage is taken of such condition to obtain from him a conveyance or contract which is unfair, made upon an inadequate consideration, and the like, even though there be no actual duress or threats, equity may relieve defensively or affirmatively." (Pomeroy on Equity, section 948.)

This rule is the more appropriate when the pecuniary necessity is the result of the person relying upon and seeking an enforcement of the contract.

But it is said that is an equitable doctrine not applicable in a common law action like this. Independent of other authority, we are of the opinion that the Civil Code which authorizes equitable defenses in common law actions necessarily carries with it the rules of equity applicable to the disposition of such issues.

For the reasons given the judgment is reversed and cause remanded for further proceedings.

Emmet Field and J. T. O'Neal for appellant.

Wm. Lindsay, H. W. Bruce and Helm Bruce for appellee.

ENGLISH v. THOMASSON.

(Filed October 16, 1884.)

1. Warranty-Defect of title-Rescission-A sold land to B, representing that he had a good title, which he at the time believed, and made a deed with general warranty. He afterwards sued on the notes for the purchase price, and B set up a defect in the title and asked a rescission. Held-Rescission refused. In the absence of fraud, nonresidence or insolvency of vendor, vendee (to whom a deed has been made) must look to the warranty for any defect in the title. Innocent misrepresentation of title is no ground for rescission.

Appeal from Louisville Chancery Court.

Opinion of the court by Judge Holt.

On April 6, 1874, the appellee, Thomasson, sold to the appellant, English, a lot of land in the city of Louisville for $700, payable in four equal payments and in one, two, three and four years from the date of the sale.

The deed, which was then made and accepted by English, retained a lien for the payment of the purchase money, and also contained a covenant of general warranty as to the title.

The vendee has been in the undisturbed possession of the lot since his purchase, and, having failed to pay for it, Thomasson brought this action against him, seeking to recover a personal judgment, and to enforce the lien.

The defense is that the appellee at the time of the purchase fraudulently and falsely represented to the appellant that he

had a perfect title to the land, when in fact it was defective as to a part of the lot; that a considerable portion of it is and was at the time of appellant's purchase a part of one of the streets of the city of Louisville, and did not belong to the appellee.

The relief asked by the defendant is a judgment for the value of his improvements, which he pleads as a counterclaim, and a rescission of the contract of purchase.

The testimony shows clearly that when the sale was made the appellee did represent to the appellant that he had a good title to the land, but it also clearly appears from it that he did so innocently, and believing that the statement was true.

The question presented, therefore, is whether a representation as to the title made by the vendor to the vendee at the time of the sale, which the former believes to be true, but which is in fact untrue, will authorize the rescission of the contract, if it has been executed by the acceptance by the vendee of a recorded conveyance containing a covenant of general warranty as to the title, and where there has been no eviction and no ground for equitable interference, such as insolvency or nonresidence of the grantor, exists?

We think not, and our conclusion renders it unnecessary to consider any other question in the case. We do not mean to give any opinion by what is above stated or to intimate whether the title of Thomasson was or was not in fact defective; but admitting for argument sake that it was, yet the defendant is not entitled to the relief asked by him upon the mere ground that this was so, and that the appellee represented differently.

It is insisted by the counsel for the appellant that this is an unsettled question in this State; and that the general rule elsewhere is that the falsity of the representation is sufficient, although innocently made.

A careful review, however, of the authorities has satisfied us that in this State the question is not an open or doubtful one.

It has been repeatedly held by this court that in the absence of fraud or insolvency, or nonresidence of the vendor, that a

vendee in the peaceable possession of the granted premises, by virtue of a conveyance containing a covenant of general warranty, is not entitled to a rescission of the contract when sued for the purchase money, although the vendor may, at the time of the sale, have represented his title as perfect when in fact it was not; and that in such a case the vendee must pay the money, and rely upon the covenant of warranty in case of an eviction. (Miller v. Long, 3 A. K. Marshall, 1173; Gale v. Commonwealth, 3 J. J. Marshall, 538; Campbell v. Whittingham, 5 J. J. Marshall, 96; Simpson, &c. v. Hawkins, &c., 1 Dana, 303; Taylor v. Lyon, 2 Dana, 276; Duvall v. Parker, 2 Duvall, 182; Trumbo v. Lockridge, 4 Bush, 415; Upshaw, &c. v. Debow, 7 Bush, 442.)

In the case of Simpson, &c. v. Hawkins, &c., supra, the court said: "Indeed where contracts are executed by conveyances we are of opinion that there can be no rescission of a contract in any case unless it has been tainted by actual fraud. If the warranty of title has been broken so as to entitle the vendee to damages, or if the vendee be entilted to damages upon a covenant of seizing, he may apply to the chancellor, where the vendor is insolvent, to set-off those damages againstthe unpaid portion of the purchase money. The ground upon which the chancellor interferes in such cases is the prevention of the irreparable mischief which might result from the insolvency. He ought not to act upon the principle of rescinding the contract. On the contrary he should affirm the contract and secure to the party such damages as he might be entitled to for a partial or total violation thereof by the obligor. If a deed of conveyance be excuted for any quantity of land, and the vendee is put into possession thereafter, in case he loses half or three-fourths of the land, the law only authorizes a recovery upon the warranty of damages commensurate with the loss. The chancellor must follow the law and not lay hold of such a partial loss, and require the vendor to take back the portion of the land saved, and return the purchase money for that under the idea of rescinding contracts."