delivered the opinion of the court:

The only question to be considered in this case is, whether an action can be maintained by the pur*668chaser, on a covenant of warranty contained in a deed, executed in January, 1836, for the conveyance of land, not in the possession of the vendor at the time of the sale and purchase, but held adversely to his title?

By the 1st section of the act of 1824, concerning champerty and maintenance, (1 Stat. Law, 285,) a deed under such circumstances, is expressly declared void; and it is also provided that no right of action shall accrue under it to either party.

Under the construction which has been uniformly given to the statute, by this court, such deeds have been regarded as void, not only so far as the occupant of the land was concerned, but also as between the vendor and vendee. (Cardwell vs. Sprigg's heirs, 7 Dana, 36.)

It is, however, contended that the deed is only void so far as it purports to convey title, and that the covenants contained in it are obligatory on the vendor. This distinction cannot, however, be maintained, without disregarding the express provision of the statute which declares that no right of action shall accrue to either party under such deed.

We conclude, therefore, that the action will not lie on the covenant of warranty, unless there be something in the case that exempts it from the operation of the general rule on the subject.

The only thing relied on as having this effect is an allegation on the part of the purchaser, that he was ignorant of the fact that the land was in the adverse possession of another person, at the time he made the purchase, and procured the deed of conveyance. If the operation of the statute could be avoided by such an allegation, its efficiency would be entirely destroyed. Besides it is the fact that the land is adversely held at the time of the sale, and not the knowledge of the parties that such is the fact, that renders the contract illegal and void under the statute. It is the duty of the purchaser to ascertain the condition of the land he purchases, and if he fails to *669do it, any injury that he may thereby sustain will be the result of his own negligence.

The vendor in such a case is liable for any misrepresentation he may knowingly make in relation to the possession of the property, and if a fraud has been practiced by him on the purchaser, the latter may, no doubt, maintain an action therefor, and recover damages to the extent of the injury he has sustained. But such a cause of action accrues immediately upon the commission of the fraud, and was barred in this case by the statute of limitations which was pleaded and relied on. And if the purchaser could in such a case maintain an aótion to recover back the price paid, it was also barred by the statute of limitations.

Wherefore, the judgment is affirmed.