#### *Koger and Others v. Kane’s Adm’r and Heirs.

July, 1833,

Lewisburg.

(Absent Brooke and Green, J.*)

Equity Jurisdiction — Sale by Acre — Deficiency—injunction against Collection of Purchase Money.† — The jurisdiction of a court of equity, to injoiu the collection of purchase money of land, after conveyance executed, on the ground of a deficiency in quantity, the contract being a sale by the acre, is not now to be questioned.

Sale of Land — Defect of Title — Injunction against Collection of Purchase Money‡ — And in Virginia, equity will in join the collection of the purchase money of land, on the ground of defect of title,, after vendee has taken possession, under conveyance from vendor with general warranty, if the title is questioned by a suit either prosecuted or threatened, or if the purchaser can shew clearly, that the title is defective.

*229Same — Same—Equitable Relief* — Case at Bar. — But where A. sells and conveys land to B. with general warranty, and then B. sells and conveys to C. such title as A. has conveyed to him, equity will not give G. relief against B. on the ground of defect of title, because 0. purchased of him only A.’s title, — nor give him relief against A., for A. has no claim against 0. which he can be injoined from enforcing.

Same — Covenants of Seizin, etc., — Defect of Title— Equitable Relief. — And quaere, whether equity will interfere to relieve against the collection of purchase money of land, on ground of defect of title, in a case, in which the conveyance contains covenants of seizin, good title, or the like, *on*which vendee may bring suit at law against .vendor, before actual eviction?

Appeals from decrees of the superiour ■court of chancery of Wythe, in two cases, one between Kane’s administrator and heirs, plaintiffs, and Koger and Sailing defendants, and the other between the same plaintiffs, and Koger, Sailing and Preston, defendants.

The case was argued here by Johnson for the appellants, and Draper and Baldwin for the appellees.

*

Opinion of Judge Cabell in Principal Case. — In Long v. Israel, 9 Leigh 567, Judge Cabedd said that the statement made in the report of the principal case, that the other judges concurred in the opinion delivered by the president, is erroneous; for, while there was no difference of opinion between the president and Judge Carr, he (Cabell, J.,) differed from them both as to one point, viz. he did not think that Kane, who had purchased from Koger, had agreed to “take the title of Preston,” and therefore he was of opinion that Kane still retained his right to injoin the purchase money due from him to Koger, — but that, on all other points, he agreed with the rest of the judges. The opinion of Judge Cabeld in the principal case will be found appended to Long v. Israel, 9 Leigh 560.

†

Equity Jurisdiction — Sale by Acre — Deficiency— Injunction against Collection of Purchase Money.— The jurisdiction of a court of equity to enjoin the collection of purchase money of land, after conveyance executed, on the ground of a deficiency in quantity, the contract being a sale by the acre, is not now to be questioned. For this proposition, see the principal case cited with approval in Kelly v. Riley *22 W.*Va. 249; Heavner v. Morgan, 30 W. Va. 342, 4 S. E. Rep. 410; Heavner v. Morgan, 41 W. Va. 442, 444, 23 S. E. Rep. 870.

Same — Same—Same—Abatement.—“Itis well settled that if a deficiency in quantity is found to exist where the contract is a sale by the acre, the purchaser will be entitled to an abatement for the value of the deficiency, and that a court of equity will, even after a conveyance is executed, abate the deficiency from the unpaid purchase *money."*Bartlett v. Bartlett, 37 W. Va. 241, 16 S. E. Rep. 453, citing the principal case and Thompson v. Catlett, 24 W. Va. 524, 539.

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

It has always been admitted that a court of equity has jurisdiction where the claim is for an abatement or for compensation for a deficiency in land. Crislip v. Cain, 19 W. Va. 520, citing the principal case.

And in Kelly v. Riley, 22 W. Va. 249, it is said that the principal case fully recognizes the jurisdiction of a court of equity to grant relief for a deficiency, in the quantity of land sold.

‡

Sale of Land witb General Warranty — Defect of Title — Injunction against Collection of Purchase Money. — A vendee in possession of land, under a conveyance with general warranty, may enjoin the collection of the purchase money on the grounds of defect of title, if the title is questioned by a suit either prosecuted or threatened, or if the purchaser can show clearly that the title is defective. To this effect, see the principal case cited with approval in Morgan v. Glendy, 92 Va. 89, 22 S. E. Rep. 854; Beale v. Seiveley, 8 Leigh 675 (see principal case also cited at p. 670): Clarke v. Hardgrove, 7 Gratt. 399, 407, and foot-note; Peers v. Barnett, 12 Gratt. 416; Rosenberger v. Keller, 33 Gratt. 494; *foot-note*to Faulkner v. Davis, 18 Gratt. 651 (as to injunction against sale of realty under deed of trust, where there is a cloud on the title, see also, *foot-note*to Lane v. Tidball, Gilmer 130, and other notes there cited); Thompson v. Catlett, 24 W. Va. 539; Wamsley v. Stalnaker, 24 W. Va. 222; Heavner v. Morgan, 30 W. Va. 342, 345, 4 S. E. Rep. 410, 412; Heavner v. Morgan, 41 W. Va. 442, 28 S. E. Rep. 879. But, in such a case, the burden of proof rests upon the vendee to show that the title derived from his vendor was clearly defective. Thompson v. Catlett, 24 W. Va. 539, citing the principal case, and Ralston v. Miller, 3 Rand. 44, 15 Am. Dec. 704.

Where a vendor of real estate has bound himself to convey land with covenant of general warranty, he is responsible for defect of title to any part of the land so sold, and a court of equity will not compel the payment of the whole of the purchase money, until the defect is removed, although there has been a conveyance of the land by the vendor. Worthington v. Staunton, 16 W. Va. 242; Johnston v. Jarrett, 14 W. Va. 238, each citing the principal case.

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

Same — Same—Compensation to Vendee. — See principal case cited in *foot-note*-to Clarke v. Hardgrove, 7 Gratt. 399; Butcher v. Peterson, 26 W. Va. 454.

*

Saie *of*Land--Defect of Title — Equitable Relief. — See Price v. Ayres, 10 Gratt. 575, and Long v. Israel, 9 Leigh 565, both citing principal case.

Fraud — Must Be Put in issue.- Nothing — and least of all *fraud*— can be the subject of trial, until it is put *in issue.*Southall v. Farish, 85 Va. 410, 7 S. E. Rep. 534; Alsop v. Catlett, 97 Va. 370, 34 S. E. Rep. 48, each citing the principal case.

The opinion of the court, delivered by the president, will ■sufficiently exhibit the points of law involved in the controversy, †

*TÜCKER, P.

The first question presented in the argument of the cause, regard the jurisdiction of the court. To this question, therefore, our attention must first be directed.

J am of opinion, that the jurisdiction of a court of equity to injoin the recovery of the purchase money of a tract of land, on the ground of a deficiency in quantity, the contract having been by the acre, cannot, at this day, be question; and if it were -clear, that the deficiency, here, resulted from that cause, and not from the loss of part of the tract by superiour title, there could be no question, I think, of the propriety of the interference of the court of ■equity to injoin the recovery of the purchase money, or to decree compensation for deficiency.

But it is exceedingly doubtful, upon this record, from what cause the deficiency proceeds ; and I am strongly inclined to think it arises, in truth, from the fact, that the western lines of the deed from Preston to Kane, ran in upon one of the Bishops, whose title is confessedly superiour to Koger’s or Kane’s title under Preston. If, however, this be the fact, it is nevertheless not conclusive against the jurisdiction, according to the practice with us. In England, indeed, if the purchaser has obtained his deed, he can have no redress in equity, but must look to his covenants; and if he has but a covenant of warranty, he can have no redress until eviction. And this principle has received countenance from the decisions of the courts oí a sister state. Bumpus v. Platner, 1 Johns. Ch. Rep. 213, 218; Abbott v. Allen, 2 Id. 519. But with us, even at a time when there was most rigour in this matter, it was admitted, that the party might have relief, provided he could provean outstanding superiour title in a third person. Yancey v. Lewis, 4 Hen. & Munf. 390; Grantland v. Wight, 5 Munf. 295. And in Ralston v. Miller, 3 Rand. 44, judge Green, delivering an opinion in which the other judges concurred, remarks, that this court has, in favor of purchasers, gone far beyond any thing which has been sanctioned by the courts of chancery of England, or elsewhere, in injoining the payment of purchase money, after the purchaser has taken possession under a conveyance, ^especially with general warranty. Yet it has never gone so far as to interfere, unless the title was questioned by a suit either prosecuted or threatened, or unless the purchaser could shew clearly that the title was defective. Chancellor Kent seems to have deemed an actual suit pending as sufficient ground of interference; Johnson v. Gere, 2 Johns. Ch. Rep. 546.

The jurisdiction thus confessedly exercised by the courts of equity with us, results from what may be called the preventive justice of those tribunals. It arrests the compulsory payment of the purchase money, when the purchaser can shew that there is either a certainty, or a strong probability, that he must lose that for which he is paying his money. It gives him the relief, too, though his demand may be in the nature of unliquidated damages, because he has no other means of ascertaining them. Thus, if the purchaser can shew, that he has received, a deed with general warranty, and that the title is bad, yet if he has not been evicted, he cannot maintain covenant at law, and ascertain his damages before that tribunal, in order then to set them off against the demand. If, indeed, there are covenants of good title &c. it may be otherwise; and so it may often happen, that an action may be brought where there are such covenants of good title &c. upon which the validity of the title may be tested, and the damages of the party ascertained. Whether in these cases, relief could be given in equity, it is not necessary here to say. But where there is only a covenant of warranty, this cannot be done; and hence, I conceive, the party would be entitled to the assistance of a court of equity, where he is fullhanded with proof that his title is defective, although he has not yet been evicted.

It is this which constitutes the difference between the case just supposed, and that of Robertson v. Hogsheads, 3 Leigh 667. In that case, it was the opinion of the court, that a party could not come into equity to injoin a judgment for the purchase money, on the ground of a fraud, which could only be compensated in damages. If damages were his object, a court of law was his proper forum; and, moreover, as those ^damages must be altogether uncer*230tain, it would be grossly improper to tie up the whole purchase money, until it should be ascertained, whether any fraud had been committed, and what damages had been sustained. As the party could sue at law, he was required to sue at law, and establish his demand, before he attempted to set it off. But here, as the purchaser cannot sue at law, and as, indeed, the court is not altogether without a standard by which to measure the sum to be injoined, the same objections do not prevail.

But though, upon general principles, a purchaser may be relieved against the payment of the purchase money, when he can prove his title to be defective, I do not think that Kane is entitled to relief in this case, if it should turn out, that the deficiency arises from defect of title only. Por, as it respects Koger, he has no claim whatever against him, for any defect of title. He has taken the title of Preston, and Preston -only is liable to Kane upon the covenant of warranty in case of eviction. And as to Preston, he cannot be rendered liable until eviction, which may never happen. There can be no pretence for resorting to the preventive justice of the court as to him, since he has no claim against Kane to tie up; and there can, therefore, be no ground for anticipating the operation of his covenant, by rendering him responsible before eviction. The bills should be dismissed as to him.

Prom these views, it is obvious, that it is of the utmost importance to ascertain clearly, whether the injury sustained by Kane consists in the deficiency of quantity within his specified limits, or the want of title to part of the land within those limits. If it be the latter, then I think the bill cannot be entertained, either against Koger or against Preston. It is one of the errors in those proceedings, that this matter is left in the utmost obscurity; and upon the cause going back, the proper proceedings should be instituted to place it in a clearer light.

As to the alleged fraud, which has been so much the subject of proof and of argument; nothing is more clear, than that that matter is within the influence of the decision of *Robinson v. Hogsheads. Quoad the fraud, this is a suit in equity for damages, and it is a case in which a large sum has been injoined, in part, upon the uncertain chance of a recovery of damages, which, after all, might be trivial and insignificant. Certainly, if the case stood on this ground alone, it could not be sustained; and, I think, upon no other principle than that of settling the whole controversy in one suit, could we be justified in retaining that part of the' case now.

Should we do so, however, still the verdict on the issue must be set aside. If we are not to understand the certificate of the judge, as meaning that all the depositions in the cause were read, then we cannot say, and the chancellor could not know, what evidence was before the jury; and when he does not know this, he must defer to the opinion expressed by the judge in his certificate against the verdict. If, on the other hand, we are to understand that all this mass of evidence was before the jury, then it may be confidently affirmed, that there was not a fair trial of the only issue properly before them. Without objecting to the generality and vagueness of the issue, we may at least assume, that .it referred to the only fraud alleged in the bill. No other fraud was in issue in the cause; and nothing,- — -and least of all, fraud,— can be the subject of trial, until it is put in issue. Now, in this case, the only misrepresentation charged is as to the quantity of flat land, which might have arisen from mistake; whereas the evidence adduced to fix fraud upon the vendor, is various, and of the gravest and most aggravated character. This has so tended to inflame the verdict of the jury, that the chancellor ought not to-have been satisfied with it. It must therefore be set aside. Whether it will be necessary to direct another issue or not, must depend upon the aspect of the case hereafter.

As to the defence set up by Sailing, the testimony in support of it is so unsatisfactory, and its weight depends so much upon the doubtful character of the witnesses, that it may be necessary to refer that also to a jury. It is so far sustained, I think, that it ought not to be rejected, until it has been submitted to that test.

*Upon the whole, I am of opinion, that the decree should be reversed in toto, and the cause sent back to be again-proceeded in, with such instructions as shall conform the decision of the chancery court to the opinions already declared.

It remains only to say, that if the defendant chooses, he may move to amalgamate the causes in the court below; but until he does so, this court considers the cases as distinct. He cannot be allowed to hold1 aloof, and take the chance of double costs, if he had succeeded, and after a decree against him to seek to unite the cases, so-as to be chargeable with single costs only. Indeed, in the decree of reversal here, he will have the advantage of the cases being distinct, since there must be costs in each case.

The other judges concurred.

Reversed, and remanded with instructions &c.

†

No note of the argument was preserved, and the reporter had no copy of the record, but the points of law decided by the court are quite intelligible, without any statement of the particular circumstances of the case. — Note in Original Edition.