#### LESSLIE AND STONE *v.*WORTHINGTON AND BURNET.

Tenants in common — sale—authority—lien—specific performance.

Where two persons purchase land jointly on credit, and one is authorized to sell and apply the receipts to pay off the land, and does sell, but misapplies the money, by which his partner is compelled to pay off for the land, this will not enable the partner so defrauded to hold the sale made on the joint account void as his part, nor permit the setting up the sum he paid on the land as a lien on it against the vendee.

*629A sale by one tenant in common of the whole estate, only transfers his own interest, unless he had authority from his co-tenant to sell the whole.

Where a sale of land has been effected by a tenant in common of the whole.estate under authority of the co-tenant, and the legal title is afterwards acquired by him, and conveyed to a third person with notice, he will be held to take the fee in trust for the purchaser.

In Chancery. Bill for the specific performance of a contract.

*McNutt,*for the complainants.

*J. Woods,*for the respondents.

Wright, J.

The case made in the pleading and proof is this. Burnet and one Bailey, now dead, jointly purchased land of the United States, under an agreement between them, that moneys received upon sales, should be applied by Bailey to pay off the lands at the office; but Bailey sold the lands, received moneys, and died insolvent, not having applied the proceeds to pay up for them according to his agreement, and Burnet was compelled to pay himself. The land in question was sold by Bailey for himself and Burnet to the assignor of the complainants, and a bond given for a deed which is lost — the purchase-money has all been paid to Bailey. After Bailey’s death, Burnet conveyed to Worthington, who had notice that the complainants had some claim. He brought ejectment and recovered. The vendee of Bailey and his assignees had been in possession since the purchase, and had improved. They now seek an injunction against the judgment in ejectment, and a conveyance.

The defendants insist the sale by Bailey, was by a tenant in common, without authority as to his co-tenant, and effective only as to his undivided interest. The position taken is a sound one, that an unauthorized sale by a tenant in common of the entire estate is good only so far as he himself had interest to convey. Was the sale by Bailey of Burnet’s interest in the land without authority when made? and has it remained without his sanction since? The weight of the evidence is decidedly in accordance with the assumption, both that Bailey had authority to sell when he made the contract; and that the contract has been sustained and admitted since, attended with a promise of a deed. From our personal knowledge of the defendants, we are perfectly confident neither of them would refuse to execute any contract they remembered to have made, nor interpose any obstacle in the way of justice. But it seems to us clear on the proof, unless we give to Mr. Burnet’s evidence much more credit than we accord to other witnesses standing before us without interest and unimpeached, that they are mistaken in the state of fact — a mistake no doubt resulting from defect of memory, or the distraction of other cares and business. This imputes blame *630to no one — any other way of disposing of the evidence would suppose the presence of perjury.

In this view, there seems little for us to do. Worthington took the title from Burnet with knowledge that the complainants had a claim pn equity. Burnet conveyed it subject to the sale and subject to its equity. The title is, therefore, held in trust for the complainants, and must be decreed to them, if they have paid up. If there is any serious claim that the purchase-money has not all been paid, we will order a master to inquire, if desired. No request of that kind was made, and the decree was made for the complainants.