#### *Page and Others v. Booth and Others.

August, 1842,

Lewisburg.

(Absent Brooke, J.)

Laches*—Case at Bar.—Upon a bill in equity to charge property which has passed into the hands of third persons without notice of the complainant's claim, the court being called upon to investigate transactions which occnrred thirty years before the institution of the suit, and, from the lapse of time and the obscurity of the transactions, it being impossible to arrive at the truth of the case, help, the bill ought to be dismissed.

Vendor and Vendee—Lien for Purchase Money.—A person entitled to have an assignment of a title bond and the possession of property upon paying a certain sum, transfers his right, and his assignee pays that snm, and assigns his right to another, who obtains title to the property according to the bond; after which the person first mentioned files a bill, alleging that his transfer was in consideration of money which has never been paid him, and claiming that the lien of a vendor for purchase money exists in his favour, upon the property in the hands of the subsequent holders, who purchased, as he alleges, with notice. Help, no-such lien exists.

This case was stated by Allen, J., at the time of delivering his opinion, to be as-follows:

In the year 1792, Stephen Jett, the owner of the equitable title to certain lots in the town of Chrisriansburg, Montgomery county, (the legal title to which was to pass through the trustees of the town, and was then outstanding in the original patentee or his representatives,) executed to William and Gilbert Christian his title bond, by which he bound himself to make or cause to be made to them a conveyance for three fourths of two lots, as soon as the trustees could make a title to the original purchasers, and also bound himself to deliver possession to the Christians, within a few weeks. Though Gilbert Christian was mentioned as a joint purchaser with William, it seems to have been determined in a subsequent controversy, that William was entitled to the whole benefit *of the contract. William Christian appears to have obtained possession of the property, and leased it to one Bratton. On the first of November 1794, whilst the property was held by the tenant of Christian, articles of agreement were entered into between Christian and Booth, by which Christian sold the property to Booth for ^'230. to be paid in property al a future day, and bound himself to give security, upon the payment of the purchase money, for the making of a conveyance as soon as a title could be procured from the trustees. The agreement further provided that Booth should get possession as soon as Bratton’s lease expired, and be entitled to any rent which might be due from Bratton at the end of his term. This contract was not complied with. Booth did not deliver the property to be paid, by the day agreed on, and Christian did not give security for the title. Some payments were made, and on the 9th of April 1793, another arrangement was entered into between the parties. By this it was agreed, that upon full payment of the balance of the purchase money, or immediately afterwards, Christian should assign to Booth the title bond of Jett; but Booth was not to have possession until a lease to one Miller (probably a purchaser from Bratton) had terminated. And upon Christian’s compliance with his agreement, he was to be exonerated from all further responsibility.

At this stage of the transaction, Booth *114was not entitled to possession of the lost, or to a conveyance for them, or even to the equitable right held under Jett. The possession was held by the tenant of Christian, and until Booth paid Christian the balance of the purchase money, he had no right to call for an assignment of the title bond. His interest consisted of an executory contract, which authorized him, upon the payment of the purchase money, to demand a transfer of a title bond. He never did pay the balance of the purchase money; the bond was not assigned to him, nor did he acquire *possession of the lots. The extent of his interest was never enlarged.

Whilst his claim remained in this condition, on the 25th of March 1797, he sold it to Isaac Rentfro, and ’bound himself to give up to Rentfro all the bonds and receipts relative thereto, and to make him all the right he had received or should receive by virtue of his purchase from Christian, for a sura to be adjudged by certain persons named. On the same day, Rentfro, by a distinct article (which recites that he had purchased of Booth the lots which Booth bought of Christian, the price of which was to be ascertained by valuers) bound himself to pay the sum to be ascertained as aforesaid, after deducting what might be due to Christian, in good land in Tennessee, by the 29th of December next ensuing the date of the contract. Rentfro never got possession of the property: it was still held by Bratton or Miller, under the lease. On the 17th day of April 1797, Rentfro. sold his interest in the subject to John and Roswell Johnston, and bound himself to give them possession as soon as it could be obtained from Bratton, and to make tliem such right as the holders of the legal title should make to other purchasers, or give them Jett’s title bond for such right. The Johnstons paid the purchase money agreed to be paid by them to Rentfro, obtained possession of the lots, and, on the 17th of July 1802, procured from Jett an order on the trustees for a deed. . After continuing in possession several years, they sold to Page, the present owner, who afterwards obtained a deed from the trustees; having previously been in possession, and paid to the Johnstons the whole of the purchase money. He has held possession ever since.

The lots seem never to have been valued under the contract between Booth and Rentfro; at least there is no evidence of such valuation in this record. Booth, however, went to Tennessee to get the land which Rentfro was to pay; from which it may be inferred that *some valuation was made, or that the parties had agreed on a price; since it would have been useless to go for the land, until the price of the lots had been ascertained. Why the land was not paid, does not distinctly appear, nor is it material to en-quire. It is certain, from the admissions of all parties,that no land was paid. Rentfro, in his answer to a bill filed by one Glenn, asserting a claim under Gilbert Christian to a moiety of the property, says that the contract was changed; that instead of the Tennessee lands, he conveyed to Christian 100 acres of land in Montgomery county, in discharge of some claim which Christian held on Booth; and there still being a balance due from him to Booth, the latter directed him to pay it over to Christian, which he did. This answer, filed in another case, is no evidence of the facts "set out in it; but it serves to explain the testimony of William Christian, who says he received from Rentfro 100 acres of land and 40 dollars in money, for Booth. Another witness, John Gardner (one of the trustees) says, that Rentfro insisted he had paid for the lots, and Booth that he had not. And one of the subscribing witnesses states, he has every reason to believe that Rentfro did pay, as he was not to get possession until he paid; that possession was transferred to the Johnstons, his vendees, at his request, and the witness never heard any thing else than that he had paid. Rentfro seems to have been a man in good circumstances, and in 1798 he sold his property, or a portion of it, and removed to Kentucky, where he died in good circumstances in 1817. Booth was a poor man, and he absconded from his creditors and removed to Kanawha county, where he died in 1801, leaving a widow (who died about four months after him) and several children, the eldest about 12 years, the youngest 13 months old. In 1827, administration on Booth’s estate was granted by the county court of Montgomery; and in the month of August 1827, *the administrator filed this bill, alleging that the purchase money was never paid by Rentfro; that the subsequent holders were purchasers with notice; and that the property in their hands was subject to the vendor’s lien for the purchase money.

The cause came on to be heard before the circuit court of Montgomery, the 26th day of May 1836, on the bill, the answers of Page and of John and Roswell Johnston, an order of publication against Rentfro’s heirs, which appeared to have been duly executed, the depositions of witnesses, and the exhibits. Whereupon the court was of opinion, that Page was not a purchaser without notice, and therefore that the lots in his possession were liable for the purchase money and interest, due from Rent-fro to Booth’s administrator; and the price of the said lots at the time of the sale by Booth to Rentfro, not having been fixed and ascertained by the persons to whom it was referred, and they having since died or removed, the court decreed that a commissioner take an account, ascertaining and stating the value of the said lots at the time of the sale thereof by Booth to Rent-fro, and how much of the purchase money, if any, had been paid, and the balance due, with interest thereon from the 25th of December 1797.

Prom this decree an appeal was allowed, on the petition of Page' and John and Roswell Johnston.

*115The cause was argued by Preston and C. Johnston for the appellants, and by M’Comas and the attorney general for the appellees.

*

See monographic *note*on "Laches” appended to Peers v. Barnett, 12 Gratt. 410.

ALLEN, J.

The first objection which presents itself is the staleness of the demand, and the impossibility of doing justice at this distance of time. The court is called upon to investigate, by the dim lights furnished by this record, transactions which occurred thirty years ^before the institution of this suit. The .cases on this subject are fully reviewed and commented on in Carr’s adm’r &c. v. Chapman’s legatees, 5 Leigh 164, and Hayes & al. v. Goode & al., 7 Leigh 452. The presumption of satisfaction is not the only consideration which operates on the court in refusing to entertain such a bill. In Hercy v. Dinwoody, 2 Ves. jun. 87, it was contended that the case was not open to the presumption of satisfaction, because, the matter being in suit, the defendants could not discharge themselves by a payment or settlement in pais. The master of the rolls admitted this, but said “Por the reasons given in Deloraine v. Brown, 3 Bro. C. C. 633, independent of the question of satisfaction, but on account of the very neglect, and the mischief and disturbance that may arise to families,” (and I may add, to subsequent purchasers,) “though the presumption of satisfaction is not so strong, yet the laches and neglect may make it a matter of public policy that the party guilty of it shall abide the consequence. ” Here the property has passed into the hands of third persons, who have paid their purchase money; and whatever may have been the fact, there is certainly no proof that they had actual notice of this claim when the deed was procured from the trustees. The aid of a court of equity is now invoked against them, at a time when the truth is no longer attainable. Was there ever a valuation? Prom Booth’s trip to Tennessee to receive the land, the inference is strong that there had been: but we have no evidence of it. Was the contract changed, as Rentfro alleges? The evidence of Christian, that he received from Rentfro 100 acres of land and 40 dollars, for Booth, would seem to shew that it had been. But what that contract was, and whether it had been complied with (as Rentfro, according to the testimony of Gardner, asserted, though Booth denied it,) we know not, and, from the proofs in the record, cannot ascertain. The first step must be taken in the dark, and no advance *can be made without the hazard of injustice. It may be the misfortune of those asserting this claim, that such obscurity involves the transaction. But even if they were exempt from the imputation of laches, it would not be the province of a court of equity to relieve them at the risque of doing injustice to fair purchasers. Booth however, if his claim was a valid one, had ample opportunities to assert it during his lifetime. He failed to do so; permitted his vendee to remove from the country full-handed, though his own embarrassments should have urged him to enforce his claim, if in truth it had not been adjusted; and he himself subsequently absconded from his creditors, without giving them (so far as we see) any intimation of his claim as a means of satisfying their demands. Under these circumstances, he could not be exempted from the imputation of culpable neglect. I think that on this ground alone,—the impossibility, from the lapse of time and the obscurity of the transactions, of arriving at the truth of the case, the court should have dismissed the bill.

I am equally satisfied that if the claim had been asserted in proper time, the vend- or’s lien did not attach. What did Booth dispose of? Not the property: to that he had no claim. Under his contract of the 9th of April 1795, he might have become entitled to an assignment on Jett’s title bond, and to the possession of the property, upon the payment of the balance of the purchase money to Christian. But he never paid that balance; it was not paid until the contract was made with Rentfro; and upon its being paid by Rentfro, Christian assigned to his vendees, the Johnstons. Suppose, upon the payment of this balance by Rentfro, Christian had refused to surrender or as in Jett’s title bond; what would have been the remedy? Rentfro could have sued at law for the breach of contract in failing to assign the title bond: he had his election to adopt that course, and. it would have been out of Booth’s power to control him. What 'x'then becomes of the supposed lien for purchase money? It will not be pretended that it would attach on the personal subject. The contract transferred a right of action, and nothing more.

It has been contended, in argument, that there was an express contract for the lien, and that this is proved by the statement of Taylor, in the suit of Glenn against Christian. To that suit Booth was no party. The record would be no evidence against him, and cannot be used for him. But even if the statement were evidence, it. proves no such contract. That is inferred from Ihe fact that the papers were deposited with Taylor. But that deposit, I feel satisfied, had reference alone to the transactions between Christian and Booth. They had attempted to settle and ascertain the balance due. By the agreement of the 9th of April 1795, Christian was not to assign until he was paid; and the papers were no doubt deposited with a vie^y to the delivery when he should be paid. And accordingly, when Rentfro did pay the balance, Christian transferred his interest held under Jett’s title bond, to Rentfro’s vendees.

I think the decree should be reversed, and the bill dismissed.

The other judges concurred on both grounds. Decree therefore reversed, and bill dismissed.