JONES v. MAGILL.—1 BLAND. 181

que trust alone; and indeed where there appeared to have been
fraud and collusion, the cestui que trust, although not a party to

power of the defendants, if they think proper, to give notice also of the
motion to be then made.

The defendants then gave notice of a motion to dissolve the injunction at
the next term, when it was regularly brought before the Court.

KILTY. C., 9th July, 1810.—The motion for dissolving the injunction in
this case, came on to be argued according to the notice given, since which
the bill, answer, and exhibits, have been considered.

The ground of the complainants' bill was, that a good title could not be
made to the land purchased by the testator, William Evans, from Barry and
Stewart, the assignee of Yates. It is alleged therein, that at the time of the
said sale, and before, it was publicly stated by Tates. the acting auctioneer,
that the title was unquestionable. This fact is not expressly denied, either
by the answer of Yates, who is made a defendant, or of McMechen, who is
principally interested in the suit; although they allege, that they allege,
that the right of the assignee, and of the mortgagee, was all that was sold.
But the equity of the complainants does not rest on that fact alone; as the
question of the title is proper to be considered without any such express
statement or assurance respecting it. Although it was contended in the
argument, that the right only being sold, the purchaser was bound to take
it at his risk. This position cannot be admitted, except In cases where the
title was expressly stated, or known to be doubtful, and a reduced price was
given accordingly.

It does not appear, from the several answers, that there is such a clear
title to the land as those who claim under the purchaser ought to have be-
fore the money is paid. The legal title set up being only as to a part, and
the equitable one being somewhat uncertain. The defendant McMechen
states, that he believes Yates had a good and valid title to the land called
Springfield, and that he bought the greater part from the Baltimore Com-
pany, the deeds for which are regularly acknowledged and recorded: and
the equitable title to a part derived from James McFadon is also set forth.
The defendant Yates refers, likewise, to the Baltimore records. But it can-
not be expected, that the injunction of this Court should be dissolved upon
the strength of the titles thus set out. and not answering the interrogatories
in the bill.

The conduct and expression of Evans, in his life-time, are relied on to
prove his assent to the purchase, after the doubts as to the title were known.
But the answer of the assignees shews only, that, although he was advised
to the contrary, he was determined to abide by the contract, by paying for
that part to which a good title could be given; and that he wished to receive
a good title for the whole. And the directions in his will do not prove his
consent to take the whole as it stood. Considering that the equity, on which
the injunction, was granted, still subsists, to wit, the uncertainty of obtain-
ing a valid title after the payment of the purchase money; and its applica-
tion to the claim against the land.

It is ordered that the said injunction be continued till the final hearing, or
further order.

Without any further proceedings being had in this case, it appears to have
been some time afterwards dismissed by the plaintiffs.