¶1After full argument and time taken to consider, the Court, composed of Overton and White, JJ., decided, —
¶2First. That if the vendor of lands as to part can not make a title clearly good, the vendee may claim a return of such part of the purchase-money as he has paid, and a rescission of the contract.
¶3Secondly. In this instance the tide to part of the lands sold is doubtful; for it is held under an execution against heirs, founded upon a judgment, which again was founded on a sci. fa. in which the heirs were not specially named; but were only described as the heirs of Elijah Robertson. And whether that be a good sci. fa. is not yet settled in this State by any judicial determination of the Supreme Court. It ought not to be settled when coming before the Court in a *242 collateral way. It is enough at present to perceive that it is a disputable and an unsettled question.
¶4Thirdly. In case of rescinding the bargain by a decree of the Court, it will be ordered that the moneys paid to the vendor shall be a lien on the estate sold.
¶5A decree was made in conformity with the above principles.