#### Tapp v. Beverley.

February, 1829.

(Absent Co alter and Greek, J.)

Injunctions* — Against Judgments — Payment of Part of Debt — Effect.—If, pending an injunction to a judgment at law, plaintiff in equity pay pa.rt of the debtdue by the judgment injoined, the injunction should be perpetuated as to the sum so paid.

Equity Practice — Discounts against a Judgment — Costs.† —If a party resort to equity to obtain discounts against a judgment at Jaw, to which he is not justly entitled, claiming also other discounts, to which he is justly entitled, but which his creditors were willing to allow him, the costs should be decreed against him.

Vendors of Land — Execution and Acknowledgment of Deed — Recordation.—Vendors of land, hound to make a conveyance thereof, are bound so to execute it in presence of witnesses, or soto acknowledge it before magistrates, that the vendee may have it recorded according to law.

In March 1804, Mttnford Beverley contracted with William Tapp, to sell him a tract of land in the county of Culpeper, at forty shillings per acre; ¿1000 of the pur*36chase money to be paid on the 1st January 1805, and the residue in twelve months thereafter: a title free from all incumbrances, was to be made on the day appointed for the first payment. It being ascertained before the 1st January 1805, *that Beverley, in consequence of some leases which he had made, would be unable to comply with this contract, the parties consented to modify it, by an agreement that Tapp should receive the rents for the year 1804, and take a conveyance subject to the leases; and that he should have a credit of four years, instead of one year, for the excess of the purchase money beyond ¿£1000. provided this sum should be paid on the 1st January 1805. In the latter part of the year 1804, Beverley contracted with Ross, Grinnan, Mundel and Carter, to sell them his patrimonial estate in the county of Culpeper, which included the land he had previously sold to Tapp; and on the 1st January 1805, he conveyed the whole estate to them, and took back a mortgage upon it, to secure the purchase money. He communicated to them, on the same day, by a memorandum in writing, that he had before sold to Tapp, a part of the land, not then surveyed, but supposed to contain 700 acres, at forty shillings per acre. On the 12th January 1805, the land having been surveyed, and found to contain 797j¿ acres, Beverley conveyed it to Tapp, and received from him ,£1000. and took his bond for £575. the residue of the purchase money, payable on the 1st January 1809, according to the modification of their contract. On the 19th March 1805, he paid to Ross, Grinnan, Mundel and Carter, the ¿1000. he had received from Tapp, and took their obligation to convey the land to Tapp and to take an assignment of Tapp’s bond for the balance of the purchase money. It would seem, from the terms of this obligation, that they were not then informed of the change that had been made in the'contract between Beverley and Tapp, as to the time of the last payment; and Beverley swears that he did not communicate it to them. This obligation was soon after-wards delivered to Tapp, and Beverley tendered to Ross and his associates, an assignment of Tapp’s bond for ^575. payable on the 1st January 1809, as above mentioned; but they refused to receive it, on the ground that it ought to have been made payable on the 1st January 1806, according to the original contract *between Beverley and Tapp, which was the only one that had been made known to them, and on the basis of which they had consented to convey the land. Shortly after the 1st January 1806, they instituted a suit in chancery against Tapp and Beverley, for the purpose of compelling an immediate payment of the balance of the purchase money; but they were cast in that suit. They thereupon took from Beverley an assignment of Tapp’s bond, brought suit upon it, and prosecuted it to a judgment.

Tapp then exhibited a bill, in the superiour court of chancery of Rredericksburg, against Beverley and against Ross and his associates, claiming credit for the rents of 1804, and two discounts for debts contracted to him by Beverley, subsequent to the date of his bond to Beverley, and (as he alleged) before Beverley’s assignment thereof to-Ross and others; insisting on a specific execution by Ross and others, of their contract to convey to him the land he had bought of Beverley, before he should beheld to pay them the purchase money; and praying an injunction to proceedings on the judgment at law, till these matters could, be heard and acjjusted in equity. The injunction was awarded.

Ross and his associates, in their answers, contest the two discounts claimed by Tapp,, for the debts due him by Beverley, on the ground, that when those debts were contracted, Tapp had notice that Beverley had assigned to them the whole of the debt which Tapp owed for the land. And they filed with their answers, a deed conveying, all their right in the land to Tapp, which they said they would deliver to him, when he paid the money. This instrument was-executed by them all; but as to some of them, there were n,o subscribing witnesses; nor was it acknowledged or certified for record, in any of the modes prescribed by the statute.

Upon the coming in of the answers, the chancellor referred the accounts to a commissioner; who made a report, in which, rejecting the discounts claimed by Tappfor the debts due by Beverley to him, he gave him credit for 86 dollars, as of the 1st January 1809, for the rents of 1804, and for *1160 dollars paid by Tapp on the 1st January 1813, pending the suit in chancery; and stated a balance due from Tapp of 1192 dollars 65 cents with interest from 1st January 1813. And the commissioner reported, that this was the state of the account, which the defendants, Ross and others, admitted to be right.

The chancellor, upon the coming in of the report, perpetuated the injunction as to-seventy-four dollars only (on account of the rents of 1804) to be credited as of the 1st January 1809, and dissolved the injunction as to all the residue. He made no provision in the decree, for perfecting and delivering the conveyance from Ross and others to Tapp. And he decreed that Tapp should pay the costs. Tapp appealed to this court.

The case was argued here, by Leigh for the appellant, and Stanard for the appellees.

The question, whether Tapp was entitled to the two discounts he claimed, for debts contracted to him by Beverley, as against Ross and others, the assignees of Beverley, was a question of fact, depending intirely on the proofs; and on this point, this court concurred with the chancellor, and decided against the claim of th.e appellant.

Leigh objected to the decree, 1. that it dissolved the injunction as the 1160 dollars, paid by Tapp, in part satisfaction of the debt, pending the suit in chancery, though the defendants themselves admitted that credit before the commissioner: and 2. that the court should have decreed the defendants, Ross and others, to make and deliver a conveyance of the land to Tapp, so perfected as to be admissible to record, before or at the time he should be called on to pay the balance of the purchase money.

*37Stanard answered, 1. that the payment made pending' the suit in chancery, not being a subject of controversy (as it could not possibly have been) nor presented by the pleadings, could not properly have been noticed in the decree: *2. that the conveyance by Ross and others, having been executed by those parties, and filed as a deed which they proffered to deliver, whenever Tapp should entitle himself to it by paying the purchase money, would be at Tapp’s command the moment he paid the purchase money, and the chancellor might at any time direct that it should be delivered to him; and besides, Ross and others had only an equitable title, the legal title having been re-vested in Beverley and he having conveyed to Tapp.

*

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

†

Costs. — See monographic *note*on “Costs” appended to Jones v. Tatum, 19 Gratt. 720.

CABELL, J.

I am of opinion, that the commissioner rightly rejected the set-offs ■claimed by Tapp, as they were for transactions with Beverley, long subsequent to the time when Tapp knew, that whatever was due from him for the purchase of the land, was justly payable, not to Beverley, but to Ross, Grinnan, Mundel and Carter; and I approve of the statement of the commissioner in all respects. The chancellor approved of it also, and ought, consequently, to have made it the basis of his decree. But he has not done so; for he perpetuated the injunction for 74 dollars only, as of the 1st January 1809, and dissolved it as to the residue; thus letting loose the execution for the difference between 74 and 86 dollars, and also for the sum of 1160 dollars, paid pending the suit. This was clearly wrong as to the first mentioned sum, viz. the difference between 74 and 86 dollars, because the commissioner’s report clearly shews, that Tapp was entitled to the 86 dollars. And I think the decree was equally wrong in not giving credit for the 1160 dollars. The fact of the money not having been ■paid, until after the institution of this suit and the granting the injunction, might affect the question as to who should pay the •costs of the suit, but it surely could not authorise the dissolution of the injunction as to money actually paid and no longer due. The injunction should have been perpetuated for all but 1192 dollars 65 cents with interest thereon, according to the statement of the commissioner.

*1 am also of opinion, that the decree is erroneous in another respect. Ross and his associates did not stand in the situation of persons holding a mere equity, which may be released by parol or by act in pais. They had expresslj" bound themselves, by their written obligation of the 19th March 1805, to convey the land to Tapp. They must, under the circumstances of this case, be regarded as vendors of the land; and they shew, that they considered themselves bound to convey it with general warranty; for they exhibit with their answers, a deed conveying the land with general warranty, which appears to have been executed by all the parties. As to some of the grantors, however, there were no witnesses ; nor was the deed acknowledged, in any of the modes prescribed by the laws regulating the recording of conveyances. A person bound to make a conveyance of lands, is bound to execute it in the presence of witnesses, or to acknowledge it in such manner, that the person to whom it is made, may have it recorded according to law. It was error in the court of chancery, not to provide for this, contemporarily with the dissolution of the injunction.

The decree should be reversed with costs, the injunction reinstated, and the cause remanded to be further proceeded in, according to the principles now declared. ■

As to the costs in the court of chancery; the appellees voluntarily allowed all just credits; and were willing, at all times, (after they took the assignment,) to make the conveyance, provided the appellant would pay the balance justly due. He forced them into the court of equity, to defend themselves against his unjust claims of set-off, and he should there tore pay the costs incurred in that court.

The other judges concurring, the decree was reversed with costs.