#### *Hays v. Wood.

May, 1826.

Real Estate — Purchase Jointly — l.icn for Purchase Honey Advanced. — Where two persons purchase a tract of land jointly, and one of them pays more than his proportion of the purchase money, while the other takes a conveyance of the whole to himself, the person who has advanced more than his share, has a lien on the land for the money so advanced.

Equity Jurisdiction.†— In such case, if the plaintiff does not pray to subject the land, but only for a personal decree for the balance due, equity will have jurisdiction.

Appeal from the Staunton Chancery Court, where Wood filed a bill against Hays, stating that Plays and himself made a joint purchase of a tract of land, which was sold for the sum of $4000; and articles of agreement were entered into between them and the vendor, whereby the vendor bound himself to make a title for the said land •to the said Hays and Wood; and they bound themselves in return, to pay to the vendor the purchase money aforesaid, in the manner stipulated; that the plaintiff paid up his full moiety of the purchase money, and more; whereupon he expected a conveyance to himself and the said Hays, of the land aforesaid; that the said Hays had fraudulently procured a conveyance of the said land, to be made to himself alone. The bill, therefore, prayed, that an account might be taken, if necessary, to. ascertain how much the plaintiff had over-paid his moiety of the purchase money; that the said Hays might be decreed to re-pay the surplus to the plaintiff, and to convey one moiety to him, &c.

The answer of Hays states, that he made a verbal agreement for the land,, for his own benefit alone; but afterwards, being unable to furnish all the means necessary for the purchase, he entered into a verbal agreement with the plaintiff, by which the plaintiff should aid the defendant in making his payments; and, if the defendant could sell the land in a short time, the plaintiff should have half of the profits; if not, the defendant should pay him back his advances and keep the land; that accordingly, the written contract was executed, mentioned in the bill, and deposited *in the hands of captain John Field, as a mere security; that the plaintiff advanced to the defendant, towards the immediate instalment, a slave,, &c. The defendant stated a variety of transactions, by which it would appear that the plaintiff was in his debt on other accounts, &c.

The accounts between the parties were referred to a commissioner who reported a balance due to the plaintiff of $492 15 cents with interest, &c.

Depositions were taken, and the Chancellor decreed, that the report of the commissioner should be affirmed; and, dismissing so much of the plaintiff’s bill as seeks a conveyance of the land therein mentioned, decreed that the defendant should pay to the plaintiff the sum reported by the commissioner, viz: $492 15 cents, with interest, &c.

From this decree the defendant, Hays, appealed to this Court.

Leigh, for the appellant.

No Counsel, for the appellee.

*

The President and Judge Cabell absent.

†

See generally, monoqraphic *note*on “.Turlsaiction” appended to Phippen v. Durham, 8 Gratt. 457.

May 29.

JUDGE COALTER

delivered his opinion, in which the other Judges concurred. ‡

Richard Wood the appellee, and David Hays the appellant, on the 9th of October, 1815, purchased a tract of land from John Wood, for the consideration of $4000, payable, as mentioned in the articles of agreement, entered into between them, on that day.

The bill alleges, that the appellee had paid more than his moiety of the purchase money ; but that the appellant had received a title for the whole land. He therefore prays, that the appellant may be decreed to> re-pay the surplus, and convey the moiety of the land. The answer *allegess that the appellant, in 1815, made a verbal agreement to purchase the land of John Wood, on his own account, but finding that he was unable to furnish all the property, paper, &c. necessary to make the first payment, and wanting some one to be responsible with him for the deferred payments, he entered into a verbal agreement with the appellee, that he should aid him; and if the appellant could sell the land in a short time, the appellee should have one half of the profits, and if not, that he would pay him back his advances, and keep the land; and in consequence of this, the written agreement aforesaid was entered into; and, as a better security for his performance, the agreement was to be deposited in the hands of captain John Field: that the appellee did make certain advances towards the purchase, &c. but afterwards agreed, that if the appellant would pay him the amount which he had advanced, he would give up all claim to the land, which he agreed to, and paid various sums to him, and orders he drew on him, &c. so as fully to reimburse his advances : that the appellee is in his debt on other accounts, &c. He admits, that he obtained a conveyance for the whole tract, but denies that it was fraudulently obtained, as charged in the bill; and should the Court direct an account, he prays that the balance due him, may be decreed, &c._

*116Taking it that these verbal agreements «could have been proved, and were proved, which is not’admitted; the appellee would have been entitled to a lien on the land, for the purchase money advanced by him, and not re-paid by the appellant; and in amending the bill according to this statement, the Court clearly would have had jurisdiction to settle the accounts, and decree payment, &c. But, without amending the bill, so as to subject the land as aforesaid, (which the appellee had a right to do, admitting that the statements in the answer are true,) the parties consent that the accounts should be taken, and a balance appearing due from the appellant, a personal decree is rendered against him for that balance. This it was competent for them to*do; and this personal decree alone, when it might have been made to extend to the land, is beneficial to the appellant, and ought not to oust the Court of Equity, of its legitimate jurisdiction in this case.

On this ground, I perceive no error in the decree, so far as it regards the jurisdiction of the Court.

But it is said, that the exception by the appellant to the commissioner’s report, ought to have been sustained. I have •examined the accounts with considerable attention, and am not satisfied that the Court erred in this respect.

I think, therefore, that the decree ought to be affirmed.

Decree affirmed.

‡

The President and Judge Cabell, absent.