— I accord with my brethren in saying that this contract should be set aside on the ground of fraud ; it appearing from unquestionable evidence, that both Outerbridge and bis trustee Fenner, knew before the title passed, and before the Plaintiff gave his bond, that the trustee could rightfully make but an estate for his life, sucli being only the extent of his own estate; notwithstanding the repeated declarations made, both by *20 Outerbrldge ami his trustee at the sale, that only suchti-tie as the latter had, was offered for sale, and the reading- the deed aloud to shew what that title was, that the bidders might judge for themselves. It is evident that this was understood to relate to the title, and not the quantify of estate in the lands, and (hat a fee simple was offered for sale. Morality and good faith should have induced the Defendants Outerbrldge and Fenner, to disclose to distan, when about to take his bond, the discovery which had been made, for they certainly knew that such information, would have produced a total change in his intentions; and that Outerbrldge was about to get from distan, the full value of an estate in fee simple, which he knew that distan thought he was acquiring, when an estate only for Fenner’s life was conveyed to him. Upon strict principles of law, even if Outerbrldge and Fenner, were really ignorant of the quantity of es¿ tato in Fenner, yet as they professed to sell and did contract to sell an estate in fee, I doubt whether they have in reality, complied with their contract, or conveyed to distan, that estate which they had contracted to sell.— Fenner had but an estate for life, and could by estoppel only convey a larger estate By a reference in his deed to dlston, Jeffreys deed to him became part of the deed to dlston. Thus the matter was left at large, there being estoppel against estoppel.
But relief being clear upon the ground of fraud, I give no opinion upon this latter point.
— It may be taken for granted, in this case, that it was the understanding of the parties, that a title in fee simple in the lands, was conveyed from Jef-freys to Fenner, the trustee. This was the understanding of Person, who drew the deed of trust •, but it does not appear that the defendants were, undeceived in regard to that, before the sale of the land to Complainants
*21 Person states, that after the execution of the. deed of trust, lie drew another, and recommended to Outer-bridge, to have the last executed, as it was drawn more fully than the first, though he believed the first was sufficient for all the purposes for which it was given.
However, it seems, that after the sale, hut before distort had executed his bond to Outerbridge, and before Fenner had executed the deed to Melon, Johnson, the attorney who drew the deed, informed both Fenner and Outerbridge, that nothing except a life estate was conveyed by the deed of trust from Jeffreys to Fenner.
It is true, Outerbridge refused to warrant the title of the land to the Complainant, but that was a fee simple title in Jeffreys for such it was apprehended was conveyed from Jeffreys to Fenner. The ground of refusal was, that Jeffreys’ title, in fee simple might not be good, not that he had conveyed a title less than a fee, or any title less than he had.
When Fenner and Outerbridge were informed by Johnson that only a life estate was conveyed to the former, they were apprised of an important fact relative to the title, to which Alston was a stranger — this fact they concealed, by doing so, they practised upon Alston that which the law pronounces to be a fraud, and that at a time when they were not in a worse situation than they stood in before the sale, or indeed, as far as it appears, at any time after the execution of the deed of trust.
I am therefore of opinion that the injunction should he made perpetual.
Taylor, Chief-Justice, concurred.
ÍN.tuNCTtoN -Perpetuated.