#### *Ross v. Woodville and Others.

Argued Jan. 12th, 1814.

1. Sale of Land — Bond for Purchase Money — Rights of Surety —Case at Bar. — A purchaser of land having given bond and security for the price, without getting a good title, it is competent to him to bind his surety, as well as himself, by waiving such a title, as he might otherwise have insisted upon, as a condition precedent to the payment of the money. If. therefore, he do not appeal from an order dissolving an in ¡unction, which was granted him for the want of title, his surety has no right to another injunction upon the same ground.

2. Same — Same—Same—Same,—But, in such case, the purchaser or the surety, having a lien on the land for indemnification, is not precluded from going on. and obtaining such conveyance, as he can shew himself entitled to, notwithstanding the dissolution of the injunction.

3. Injunction — Dissolution—Rule Nisi, ‡ — It seems illegal and irregular to grant an injunction, to continue in force until the coming in of the answer, and then to stand dissolved without a rule nisi.

The Rev. James Stevenson, by his last will and testament, authorized his “executors or executrix, or any acting one, or more, in making arrangements for the payment of his debts, to dispose of or sell any part of his property, either personal or real, as they should think most advisable, or best adapted to promote the interest of his family.” He appointed his wife, and several of his friends, (of whom Garrett Minor was one,) executrix and executors. After making this will he executed a power of attorney, stating that his wife, since the will was written, had departed this life, and, for the purpose of promoting the interest of his children, as well as his own ease and happiness, appointed his friend John Woodville, and his son Andrew Stevenson, “his true and lawful attornies, to make sale of the whole of his lands, negroes and other estate, of every description, in order that a division and distribution might take place between his children, according to his original intention and wishes, expressed in his said last will; to liquidate, settle, and pay his debts ; to recover and receive the monies due to him, &c. binding himself to ratify and confirm all and every thing which might be legally done by them in virtue thereof.” In pursuance of this power of attorney, John Woodville and Andrew Stevenson, as agents and trustees of the Rev. James Stevenson, sold a tract of land in the county of Spottsylvania to Edmund Penn, of the county of Amherst, who executed four bonds to them for the purchase money, and took from the said Andrew Stevenson, a memorandum, whereby he engaged to make him a title. Some time after this, the Rev. James Stevenson died. His will was admitted to record ; and, all the executors named therein having refused to qualify, Garrett Minor was appointed and qualified as administrator with the will annexed. Edmund Penn, having paid off one of his bonds, refused to pay the remaining three, on the ground *that a good title could not be made him for the land, by the said Wood-ville and Andrew Stevenson, because their powers had ceased on the death of their principal ; nor by the said Garrett Minor, as administrator with the will annexed, because the executors were authorized to sell the lands only when necessary for the payment of the debts ; and this sale had been made in the life-time of the testator; (and, besides, the purchaser was entitled to a general warranty, which the administrator would not make ;) nor, lastly, by the heirs at law, because some of them were infants. However, although no title had been made him, he executed, and had recorded, a deed from himself, conveying the same land, in trust, to indemnify James Ross, his security in the bonds, on which suits were brought, in the names of John Woodville and Andrew Stevenson, agents and trustees as aforesaid, for the benefit of Garrett Minor, administrator, &c. Judgments at law being rendered in the County Court of Spottsylvania, Edmund Penn applied to the judges of the Superior Court of Chancery for the Richmond district, for an injunction ; upon a bill, in which he relied on the defect of his title, and prayed that proceedings be stayed until a good title be made. The chancellor granted the injunction, “until the coming in of the answer of the defendant Garrett Minor;” which answer being filed on the 25th of January 1811, a motion was made by the complainant, in June following, to re-instate the injunction, but was over-ruled by the Chancellor •, and no appeal from that decision was taken.

On the 3d of August 1812, James Ross exhibited his bill of complaint, in Spottsyl*140vania County Court, against the trustees, or agents, the administrator, and the heirs and devisees of the Rev. James Stevenson, deceased; relying on the same equity, and praying an injunction to stay proceedings on the same judgments; also, “that all persons concerned should be compelled to join in such conveyance of said lands, as the court should deem sufficient to pass the title, so that the same might be liable to indemnify the complainant.” The injunction prayed for was granted by the County Court:— the bill was answered by Garrett Minor ; *and, afterwards, on his petition to the chancellor, *(the*County Court having unreasonably delayed to hear and determine a motion for dissolving the injunction,) the cause was removed by-certiorari to the Superior Court of Chancery ; where, on the 28th day of January 1813, it was ordered, “that, upon the defendants, Garrett Minor, administrator, with the will annexed, and John Woodville and Andrew Stevenson, trustees of James Stevenson, deceased, executing and delivering to Edmund Penn, or to the plaintiff on his behalf, a conveyance, with general warranty, for the tract of land in the proceedings mentioned, or, in case the said Penn or the plaintiff should refuse to accept the same, depositing it with the clerk of the court for the use of thé said Edmund Penn, the said injunction should stand dissolved as an act of that day.”

From this order the complainant obtained an appeal, by exhibiting a petition to a judge of the Court of Appeals ; alleging that, in the record and proceedings, there was error in this,< “that the conveyance required, in and by the said order, is not such an one as will pass the legal title to the said lands; the same being in the children and heirs at law of said James Stevenson, deceased ; and a conveyance by the attornies in fact aforesaid, (whose authority ceased upon the death of the said James Stevenson,) and the said administrator would not pass the legal title of the said heirs ; and because the conveyance ought to be decreed to be made to the trustee to whom Penn conveyed it, and not to him.”

'Williams for the appellant.

Stanard for the appellees.

Saturday, January 7th, 1815,

‡

See generally, monographic *note*on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.

the following opinion of the court was delivered by

JUDGE ROANE.

The court is of opinion that, as the contract respecting the sale of the land in the proceedings mentioned was made between the agents of James Stevenson on the one hand, and Edmund Penn, the principal obligor in the bonds, (the judgments *on which are sought to be injoined,) on the other, it was competent to the said last mentioned party to bind both himself, and the appellant as his surety, by a waiver of such a title to the land aforesaid, as he might otherwise have required to be decreed to him, as a condition precedent to the payment of the price thereof; saving, nevertheless, the right of the said Penn, and of the appellant as claiming under him, to go on and obtain such conveyances as they may shew themselves to be entitled to, notwithstanding the dissolution of the said injunction.

The court is also or opinion, that the injunction obtained by the said Penn, on the same ground with the present, in the previous suit, among the exhibits, having been in fact dissolved bv the chancellor, which' decree of dissolution is still in full force, and unappealed from, (although, according to the present impressions of the court, it may have been illegally and irregularly dissolved, it not having been dissolved by motion in open court, but expiring, by the coming in of the answer, under the terms of the grant thereof by the chancellor, and having been refused by him to be re-instated, on a *motion made*for thát purpose,) the said decree of dissolution is obligatory on the appellant as well as the said Penn j and on this ground, the court is of opinion that the present injunction ought not to have been granted. The opinion of the court is, therefore, that the decree of dissolution in this case is erroneous, so far as it requires a title to be made to the appellant to the land in question, as the condition on which the said dissolution should have its effect: but that decree being in this respect more favourable to the appellant than it ought, and not being complained of on the part of the appellees, the court is of opinion, and accordingly decrees, that the said decree should be affirmed ; and that the cause should be sent back to the Court of Chancery, in order that such farther conveyances should be decreed, (after all the parties should have been brought before the court,) as the appellant shall shew himself entitled to.