#### *Edwards v. Van Bibber.

March, 1829.

(Absent Brooke, P., and Coalter, J.)

*Contract for*Sale *of*Land — Specific Performance* — Case at Bar. — a. by covenant in July 1779, contracts to sell land to B. for £3500. whereof B. pays £1734. in cash, and covenants to pay balance, on A.’s making him a conveyance; in September following, B. pays balance in full, to A. in person, and receives possession; but A. makes no conveyance; or, if he made one, it cannot be found: in July 1791, B. by assignment sealed and indorsed on A.’s covenant, assigns all his right &c. in the land to C. for value received; and C. takes possession: in October 1797, C. contracts to sell the land to D. for £800. whereof £500. was to be paid in 1798, and £300. in 1799; and C. covenants to give D. possession on receiving the first payment in 1798, and to make him a lawful title on receiving the last payment: D. makes the first payment in 1798, and receives, possession, which he and his heirs have ever since held: D. never makes or tenders the last payment; C. never makes or tenders the conveyance: and they both die. Upon a bill by C. ’s adm’r and heirs, against D.’s adm’r and heirs, for specific execution of the contract of Oct. 1797, the chancellor decrees specific execution, and charges the balance of purchase money on the land; and decree affirmed.

Same — Same—Escheat—Case at Bar. — Pending the bill in the court of chancery, the escheator takes an inquisition on the land, whereby it is found that A. died seised thereof, without heirs, and without having disposed thereof, so that it has escheated; D.’s heirs make no opposition to this, proceeding, and give G.’s heirs no notice thereof. Held, this escheat is no obstacle to the specific execution claimed by C.’s heirs against D.’s heirs: but the commonwealth and her officers shall be rejoined from any farther proceeding on the escheat.

Same — Presumption as to *Conveyance*— Quaere.— Whether, under the circumstances, a deed from A. to B. conformably with the contract of July 1779, must not be presumed?

The executors of William Johnson, by deed dated June 5, 1778, conveyed to James Nicholson in fee, a tract of land lying on the Mattapony in King William county.

Nicholson took possession immediately t and, by articles between him and Abraham Van Bibber, dated July 2, 1779, contracted to sell this land to Van Bibber, for^£3500. Pennsylvania currency; of which sum the articles stated, that Van Bibber had paid ;£1734. in cash, and that he bound himself to pay the residue of^1766. on Nicholson’s making a conveyance. On the 3d August following, Van Bibber paid Nicholson ;£1040. and on the 15th September, the balance, *£726.*in full of the purchase money, as appeared by Nicholson’s receipts indorsed on the articles.

*Abraham Van Bibber was let into-the possession, and held it till August 22, 1791, when he sold the land to Andrew Van Bibber. The evidence of this sale was a writing of that date, signed and sealed by Abraham, and indorsed on the articles between him and Nicholson of July 2, 1779. in these words : “ I hereby assign all my right, title and interest, to the within mentioned tract of land, unto Andrew Van Bibber, his heirs and assigns, for value received in full therefor. Witness my hand and seal &c.”

Andrew Van Bibber thenceforth held the possession, until October 27, 1797, when by articles between him and Charles Edwards, he contracted to sell the land to Edwards, for ;£800. whereof ;£500. was to be paid January 1,1798 ; A150. October 27,1798 ; and ,£150. October 27,1799 ; with legal interest from the date of the contract, on the two last payments : and it was stipulated, that possession should be given to Edwards, so soon as he should make the first payment of ¡£500. and that upon his making the last payment,. Van Bibber should make him a lawful title.

Edwards made the first payment of ;£500. received possession, and held it during his own life and Van Bibber’s; and after Edwards’s death, his heirs continued-to hold it, without disturbance from any quarter. The residue of the purchase money (.£300.) was never paid. Neither did it appear, that *71Van Bibber had ever tendered Edwards a conveyance, and demanded this residue of the purchase money; or that Edwards had tendered him the money, and demanded a conveyance, or offered to rescind the contract on account of defect of title.

In Eebruary 1821, after the death of both the vendor and vendee, Sarah Van Bibber the administratrix, and Andrew and Hester Van Bibber the heirs, of the vendor, exhibited their bill, in the superiour court of chancery of Richmond, against Thomas Ware and Sarah his wife, who was relict and administratrix of the vendee, and Charles and Thomas Edwards, his heirs; wherein, after setting forth the facts above stated, they added, that Nicholson, who sold the land *to Abraham Va'n Bibber in 1779, was dead, leaving no heirs known to them; that they were unable to say, whether he made a conveyance to Abraham Van Bibber, as by the contract of July 1779 he had agreed to do, before or upon the payment of the balance of the purchase money, but they believed he did make such conveyance, and that it had been lost by accident and never recorded ; and that, if proof of the actual execution of such a conveyance by Nicholson could not be adduced, yet, under all the circumstances, a conveyance by him ought to be presumed. And they prayed a specific execution of the contract of October 1797, between Andrew Van Bibber and Edwards ; that the heirs of Edwards should be compelled to accept a conveyance with general warranty from the heirs of Van Bibber ; that the balance of the purchase money with inte' est should be decreed to the administratrix of Van Bibber ; and that the land itself should, if necessary, be subjected to the debt ; or, if specific execution could not be decreed, that the contract should be rescinded, the land restored to the heirs of the vendor, and that part of the purchase money which had been paid by the vendee, refunded with interest, after discounting therefrom the profits of the subject during the possession of the vendor and his heirs.

The administratrix and the heirs of Edwards, in their answers, admitted, that the balance of the purchase money (,£300.) due by their ancestor to Van Bibber, had not been paid, because (they said) Van Bibber could never convey a legal title; and they insisted, that the Van Bibbers could not even yet convey a good title ; and that, therefore, the contract ought to be rescinded, the purchase money refunded with interest, and compensation allowed them for improvements, they accounting for the profits. They added, that the only personal estate of Edwards, which had come to the hands of the administratrix de bonis non, was two slaves, of which distribution had been made before the commencement of this suit; but the first _ administrator of Edwards was Bavid Smith, whose letters of administration had *been revoked, though he was still living, and had never rendered any account of his administration.

The plaintiffs did not make Smith a party defendant.

The chancellor, in March 1823, directed a commissioner to examine and report the state of the title. The commissioner reported, that, as by the contract of July 1779, Abraham Van Bibber was not to pay the balance of the purchase money to Nicholson unlil Nicholson should make him a conveyance, and as it appeared that the whole balance was in fact paid to Nicholson in person, in September 1779, it was thence fairly to be inferred, that Nicholson had performed the covenant on his part, and made the conveyance to Van Bibber, and that the conveyance had been lost or destroyed. Upon the coming' in of this report, the chancellor in January 1824, decreed a specific execution according to the prayer of the bill; but he set aside this decree, at the same term, because he thought that the fact of the actual execution of a conveyance by Nicholson, was not so distinctly averred in the bill, as to justify a decree for specific execution on that ground.

Hereupon, the plaintiffs obtained leave to amend their bill. Bui after this leave was obtained, and before the amended bill was filed, the escheator of King William proceeded to escheat the land in question to the commonwealth, by inquisition of escheat, in which it was found, that James Nicholson was seised thereof in his lifetime, and being so seised, died without heir, and without having made any disposition of it. The heirs of Edwards, residing in the county, and holding the land in possession, made no opposition to this proceeding, while it was pending, and no effort to avoid it after it was accomplished ; nor did they give any notice of the proceeding, to the heirs of Van Bibber, who resided in the county of Mathews.

After this escheat, the plaintiffs filed an amended bill; in which they alleged, positively, that Nicholson executed a conveyance to Abraham Van Bibber, pursuant to the contract of July 1779, and that this conveyance was lodged in *the clerk’s office of King William, to be recorded, but the office was burnt in 1787, and thus the instrument was destroyed; and they prayed (in general terms) that the escheator might be made party defendant to the suit.

The answers to the amended bill, denied that any conveyance by Nicholson to Abraham Van Bibber, was deposited in the King William office, and there destroyed in the manner suggested, or that: any such conveyance was ever executed. And the escheator moreover denied, that either Abraham or Andrew Van Bibber ever had any interest in the land, legal or equitable, or any possession thereof.

It was proved, that though the clerk’s office of King William was destroyed by fire in 1787, yet all the deed-books from 1778 (inclusive) were preserved, and that no deed from Nicholson to Van Bibber could be found on record there ; that the fee-books of the period, had also been preserved, and that no fee was there charged for the recording any such deed.

There was proof also, that the plaintiff Mrs. Van Bibber, administratrix of Andrew Van Bibber, had said, in 1818 or 1819, that she had not a right to the land, that the right lay in Mrs. Nicholson, that she had gone to Mrs. Nicholson to get a right (meaning, as the deponent supposed, a deed) but found her sick, blind and deaf.

Pending the proceedings, Mrs. Ware, the *72■administratrix de bonis non of Edwards, the vendee, died, and no personal representative of that decedent was afterwards made a party.

The cause coming on again for hearing, in January, 1827, the chancellor decreed, that upon the heirs of Andrew Van Bibber, executing and tendering to the defendants, the heirs of Edwards, a deed conveying the land to them in fee simple, with general warranty, those defendants should pay to the administratrix of Van Bibber, the balance due of the purchase money, viz. £300. with interest from October 27, 1797, and the costs of suit; and if they failed to make such payments, within six months from the time when the *deed should be tendered to them, the marshal should make sale of the lan£, and bring the proceeds of sale into court, to ■ be applied to the satisfaction of the debt, interest and costs.

The heirs of Edwards appealed to this court.

The cause was argued by Johnson for the appellants, and by Schmidt and Leigh for the appellees.

1. The first objection taken to the decree by the appellants’ counsel, was, that it not only subjected the land to the debt due on account of the balance of the purchase money thereof, but adjudged the heirs of the vendee Edwards, personally, to pay this debt of their ancestor. The counsel for the appellees acknowledged, that this objection was well founded, and that the decree ought to be corrected in this particular.

2. It was next objected, that the heirs of Edwards had a right to have his personal estate accounted for, and applied to the satisfaction of this debt; yet no account of the personal estate had been required, and at the time the decree was made, there was no personal representative of Edwards before the court. His first administrator, Smith, was never made a party, and called to account for the assets which came to his hands ; and Mrs. Ware, the administratrix de bonis non, who was originally made a party defendant, died pending the suit; and thenceforth there was no proceeding against the personal estate or personal representative of the debtor.

To this it was answered, that the defendants had all stated in their answers, that the whole of the personal estate, which came to the hands of the administratrix de bonis non, had been regularly distributed : that fund was in their own hands. And as to the first administrator, Smith, the defendants, who were the distributees, had never thought it worth while to call him to account, and they could not complain, that the creditors had declined the trouble and expense of doing what they themselves deemed useless. *3. It was earnestly contended, that the chancellor, instead of decreeing a specific execution of the contract of sale between Andrew Van Bibber and Edwards, ought to have rescinded the contract, and restored the land to the heirs of the vendor, and to the representatives of the vendee, that part of the purchase money which had been paid, with interest, holding the latter accountable for profits, and the former bound to make compensation for iniprovements. Specific execution ought not to have been decreed, because the Van Bibbers, even at the date of the decree, could not convey a good title. Equity never compels a purchaser to take a doubtful or an equitable title, or any title not free even from suspicion. Sugd. law of Vend. c. 7, § III., p. 243. Now, so far from there being any reason to infer, that Nicholson ever in fact executed a conveyance of the land to Abraham Van Bibber, in pursuance of the contract of July 1779, the circumstances lead to the opposite conclusion, that he never made such a conveyance. The suggestion, that the deed .was made, and lodged in the clerk’s office of King William to be recorded, and was destroyed when the office was burned in 1787, is refuted by the proof, that all the deed-books and all the fee-books of the period were preserved from the flames, and that no trace of such a deed can be found in either : had the deed been fully proved it would have been registered in the deed-book : had it been only partly proved, a charge for such probat would have been found in the fee-book. That Nicholson never made the conveyance, is manifest from the fact, that Abraham Van Bibber transferred his right in the land to Andrew Van Bibber, in 1790, by assignment indorsed on the executory contract between Nicholson and him: he did not convey the subject ; he only assigned the right to demand a conveyance of Nicholson in pursuance of his contract. And Mrs. Van Bibber, as late as 1818 or 1819, acknowledged that she had not the right (meaning, that she had no deed) and that the right was in Mrs. Nicholson.

Neither is this a case in which the court can presume a conveyance from ‘-Nicholson. A purchaser has a right to require a title commencing at least fifty years before his purchase, because the statute of limitations cannot, in a shorter period, confer a title. Sugd. c. 7, ? I., p. 237. But from the date of Nicholson’s contract (July 1779) to the date of the decree (January 1827) is only forty-seven years, and six months ; from which deducting about a year and a half, according to the proviso of the statute of limitations (1 Rev. Code, c. 128, § 11), only about forty-six years can be counted.

The appellees’ counsel answered, that considering that by the terms of the contract in July 1779, Abraham Van Bibber was to pay Nicholson the balance of the purchase money, only upon Nicholson’s making a conveyance of the land; that the balance was paid by Van Bibber in person, to Nicholson in person, in September 1779, when there could be no manner of obstacle to the complete performance of the contract on Nicholson’s part, by making the conveyance; and that the vendee, and those claiming under him, had ever since held quiet and undisturbed possession; it was fair to infer, that Nicholson had in fact made a conveyance. The state of the country at the period, and the length of time that has since elapsed, sufficed to account for the loss of the instrument without shewing how it was lost. It might have been lodged in the clerk’s office of King William, without any probat, complete or partial; and in that case, no trace of it could be expected, either in the deed-book or in the fee-book. So soon as Nicholson received full payment of the purchase money, he was a bare trustee of the legal title for Van Bibber, and bound immediately to convey it to him ; and it is an inference of law, that he did in fact convey. Lade *73v. Holford, Bull. N. P. 110 ; England v. Slade, 4 T. R. 682. And the court, under the circumstances, ought to presume the conveyance from Nicholson. Hillary v. Waller, 12 Ves. 239 ; Ricard v. Williams, 7 Wheat. 109. At all events, seeing that Edwards took possession of the land upon his purchase from Andrew Van Bibber, in 1797 ; that he and his heirs have ever since held and enjoyed it, x'undisturbed ; and that they never complained of defect of title, or offered to abandon the contract, or claimed to rescind it on that account, till they filed their answers in this suit ; under such circumstances, they could not, with any colour of justice, at this late day, claim that the contract of their ancestor should be rescinded; and the chancellor was right in compelling them to accept a deed with general warranty from the heirs of Van Bibber.

4. It was objected, that the escheat was an Insuperable bar to the specific execution decreed by the chancellor. That proceeding was, on the face of it, fair and regular: it established, that Nicholson died seised of the land, without heirs, and without having conveyed it away in his life-time : it vested the title in the commonwealth : it stands unimpeached : there is not only no proof, but there is no charge, of any collusion between the escheator and the heirs of Edwards.

It was answered, that the proceeding of the escheator, was procured by the heirs of Edwards themselves, and consummated by their connivance, in order to disappoint the apprehended decree for a specific execution of the contract of their father. The land had been held in undisturbed possession, by the Van Bibbers and by Edwards and his heirs, from July 1779 to January 1824, when the chancellor made a decree, which though afterwards set aside, sufficiently evinced his opinion on the merits, that the balance of the purchase money ought to be paid to the Van Bibbers. Then, for the first time, the escheator of King William discovered, that the land in question had been conveyed to Nicholson in 1778, that no conveyance of it by him was to be found on record, that he was dead without any known heirs : in short, he discovered all the facts unfavourable to the title, hut none of those favourable to it, which the previous proceedings in this cause disclosed. Prom whom did he, at that critical period, derive the information on which he proceeded? From whom but the heirs of Edwards, whose interest alone it was that he should proceed ? The escheator made his inquisition in the county in which they reside; they were in actual *possession ; they took no pains to shew the long possession of themselves and those under whom they claimed, and the payment of public taxes for near half a century ; they made no resistance to the proceeding while it was pending, no effort to avoid it afterwards ; they gave no notice of it to the Van Bibbers, made *no*call on them to defend the title. Res ipsa loquitur: the proceeding of the escheator was commenced and consummated by the procurement and collusion of the appellants themselves ; and if any inconvenience result from it, they ought to bear it. But there was, in truth, no reason to apprehend any serious effect from this escheat.

5. The counsel for the appellants insisted, that if, under the circumstances of the case, it was right to decree a specific execution of the contract, the principal only of the purchase money yet remaining due, without interest, ought to have been decreed. The purchaser was in no default. He was not hound to pay the balance of the purchase money, till a conveyance of the title was made or tendered to him ; it was the fault of the vendor, that no conveyance was made, or rather the vendor had no title to convey ; nor does it appear that he ever offered to make a conveyance.

The counsel for the appellees said, that the purchaser and his heirs have enjoyed the profits of the land, and of the purchase money too ; a.nd they cited Sugd. c. 10, i 1, p. 3S3, 4, aric^elden v. James, 6 Rand. 465.

*

The principal case is cited in *foot-note*to Griffin v. Cunningham, 19 Gratt. 574. See monographic *note*on “Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.

CARR, J.

"The question is, whether, under all the circumstances of the case, it will be most conducive to justice, to execute or to rescind the contract between Andrew Van Bibber and Edwards?

It is insisted by the appellants, that we ought not * to force upon them a purchase of 3and, to which they cannot get a perfect title. This might have been a very different question, if the vendee, who by the contract was to get a title on making the last payment, had, when that payment fell due or soon after, tendered it, and demanded his title : a bill to rescind, then, would in all probability (if the title proved ♦materially defective) have been successful, though possession had been taken. But he and his heirs have held the land above thirty years; they made no effort to perfect their title or to rescind the contract; and it is only now, when pressed by the other side, that they resort to it as a defence. If, under such circumstances, they can be made reasonably secure in the title, justice seems to say, that they ought to be compelled to take it, and pay the residue of the purchase money. It appears, that Nicholson acquired the land in question, by conveyance from the Johnsons, in 1778, upwards of fifty years ago ; that on 15th September 1779, Abraham Van Bibber had bought of Nicholson and fully paid for the land, and by the terms of the contract, had a perfect right to a deed ; and that he was, in 1779, put into possession, which has, by him and those claiming under him, been held uninterruptedly to the present time, a period wanting but a few months of fifty years. In this state of things, it was strongly contended, that the court ought to presume that a deed had been made by Nicholson to Van Bibber: for, as Van Bibber was not hound to pay till a title was made, nor had Nicholson a right to call for payment till he made a conveyance ; as Nicholson had a clear legal title, and there were no impediments to his conveying ; as it was his duty to convey, and Van Bibber’s interest to insist on a deed ; and as Van Bibber’s possession had been uninterrupted ever since; the necessary conclusion is, that a deed was made when the last payment was made, which by time or accident has since been destroyed. And this conclusion, it was insisted, rested upon the presumption, that Nicholson, who after the money paid was but a mere trustee, had done what he was *74bound to do ; and also upon that more general ground of presumption, that, from the infirmity of our nature, and the difficulty of retaining or producing evidence of ancient transaction, it has been found convenient and necessary, for the preservation of property and rights, to have recourse to some general principle, to take place of individual and specific belief. There is, to my understanding, *much weight in these considerations : but I shall not decide, whether in this case we ought to presume a deed. (The doctrine on this subject, is well treated of in the following cases : Hillary v. Waller, 12 Ves. 239 ; Prevost v. Gratz, 6 Wheat. 481; Cowp. 102, 217 ; 7 Wheat. 109; 8 East. 467; 3 Stark. Ev. part IV. 1200, 1228.*) The question with us, is, whether upon all the facts, it will be just and , .equitable to decree, that the appellants shall accept a deed with general warranty, from the heirs of Andrew Van Bibber, and pay up the residue of the purchase money?

I am clearly of that opinion, unless the escheat shall be found to present a difficulty. There is something in this proceeding, which I find it difficult to account for, on fair principles. This suit, in which the rights of the parties are set out, had been pending before the court three years, when the inquest was taken ; and whatever might be the conclusion as to the legal title, it was most manifest, that Nicholson more than forty years before had sold the land, and received full payment; most clear also, that the Van Bibbers, and those holding under them, had been in possession, as purchasers for value, and as such had paid taxes to the commonwealth upwards of forty years. This, we all know, was a full answer to any claim the commonwealth could make. And yet, in the face of all this, an inquest was found, escheating this land to the commonwealth for defect of heirs of Nicholson. The jury was sworn to inquire, what lands Nicholson died seised of, and whether he left any heir, or made any disposition of the lands in his life-time ; and they found that he died without heir, and made no disposition of this land. Why did not the appellants, by traverse, monstrans de droit, or petition of right, contest this finding? The answer cannot be doubted : they wished it to succeed, supposing that it would strengthen their case for a rescission of the contract. As to the escheator, it is charitable to suppose, that he has acted from misguided zeal to be doing *something in his office. It is most clear to me that this proceeding ought not to present the slightest obstacle to the decree of the court.

The decree, however, is a personal one against the heirs of Edwards the vendee, and so far erroneous. It must, therefore, be reversed, and a decree entered, that unless the money be paid in six months the land be sold; and, in addition, that the commonwealth and her officers be perpetually in-joined from taking any proceeding on the escheat.

The other judges concurred. The decree was reversed with costs, for the errors mentioned by judge Carr, but approved in all other respects.

*

The edition referred to is Ingraham's, Boston, 1828. — Note in Original Edition.