#### *Miller v. Argyle’s Ex’or and Others.

November, 1834,

Richmonfl.

Deed of Trust — Cloud on Title — Injunction to Sale.* — A vendee of land executes a deed of trust of same land to secure payment of the purchase money; if there is any doubt as to the title of the land, or part thereof, euuity will injoin the trustees from selling- the land, or, at least, such part thereof as to which the title is doubtful, to satisfy the debt.

Appellate Practice — Decree Founded on Allegation of Bill Undenied by Answer.† — A material fact alleged in a bill in chancery in a county court, is not denied in the answer, and there is no proof of it; the county court makes a decree founded on the allegation of the fact in the bill; the superiour court of chancery reverses the decree, and dismisses the bill: Held, the chancellor properly reversed the decree, but he ought not to have dismissed the hill; he should have retained the cause, and given the party an opportunity to supply the defect of proof.

In June 1823, William Miller exhibited a bill in chancery, in the county court of Goochland, against Isaac Curd executor of Frederick Argyle, John Argyle, Thomas Curd and Benjamin Anderson, — stating that in August 1817, J. Curd, the executor of F. Argyle, sold Miller a parcel of land in Goochland, as land belonging to his testator’s estate, estimated to contain 1033 acres, for 27 dollars per acre, amounting to 27,891 dollars; for which Miller gave his three bonds for 9297 dollars each, payable successively, on the 21st days of August 1818, 1819 and 1820, with interest from the 25th December 1817, and executed a deed of trust conveying the land to T. Curd and Anderson, to secure the payment thereof. That Miller had discharged the first two bonds, and made large payments towards the discharge of the last, which had been assigned by J. Curd to J. Argyle. That J. Argyle threatened to coerce payment of the balance due on that bond, by sale under the deed of trust. That Archer Payne had claimed title, and established his claim, to sixteen and a half acres of the land, as would appear by a judgment of the circuit court of Goochland. That Miller, in investigating the title, had not been able to find, that F. Argyle ever had any legal *title to a further quantity of about one hundred acres, parcel of the land sold- him, and he believed that the legal- title thereof was in the heirs of Thomas Bates deceased. That, therefore, for the quantity of one hundred and sixteen and-a half acres of the land, Miller ought to have credit, at the rate of 27 dollars per acre, with interest from the 25th December 1817; though as to-the last mentioned deficiency of a hundred acres, he prayed a survey to ascertain the exact-quantity. That, allowing Miller such credit for the deficiency, he had overpaid the amount of the purchase money justly due. And, therefore, the bill played, that the trustees T. Curd and Anderson might be injoined from proceeding to make sale under the deed of trust, that the value of the quantity of land for which the title was deficient, should be allowed Miller, and that J. Curd, the vendor, should be decreed to refund him so much as he had paid, over and above the just amount of the purchase money.

The injunction was awarded.

J. Curd, in his answer, said, that F. Argyle, his testator, died seized and possessed of the land which he had sold to Miller; that he had made the sale as Argyle’s executor, under a decree of the court of chancery, at public auction; and that he had. conveyed the land to Miller, and put him in possession thereof, which he had held ever since. As to the deficiency of sixteen and a half acres, nothing was said in the answer. But as to the hundred acres, the answer stated, that the bill had not shewn what part of the land this was; that the defendant conjectured it was part of what was called the Glebe, which had been, many years ago, sold by the vestry *177of the parish of St. James Northam to Thomas Bates and David Ross jointly ; that the Glebe contained 200 acres, which was equally divided between Bates and Ross, by a line that was now the boundary of the tract sold to Miller; that Bates and his family had resided on the other part contiguous to the dividing line, for many years, and had never claimed any of the land on Ross’s side of the dividing line, which had been regularly processioned for more than thirty years; that Ross had sold the “land, then parcel of a larger tract, to Coleman, who has sold to the defendant’s testator F. Argyle. That Miller was clerk of the county court of Goochland, at the time of the sale of the Glebe by the vestry to Bates and Ross, and had continued in that office ever since, so that the facts must have been better known to him, than to the defendant. And that Miller had sold a large part of the land sold to him by the defendant, including the hundred acres of the Glebe land, to William Guerrant, and had assigned Guerrant’s bonds for the purchase money thereof to the defendant, in part payment of the purchase money which Milier had contracted to pay him.

The defendant John Argyle the assignee, and T. Curd and Anderson the trustees answered, and disclaimed all knowledge upon the subject.

The plaintiff exhibited with his bill a copy of a verdict and judgment of the circuit court of Goochland, in a writ of right, in which Miller was demandant and Archer Payne tenant, and in which the jury found that thirty acres of the land demanded was the property of Miller, and sixteen and a half acres thereof was the property of Payne; and the court gave judgment accordingly.

The defendant J. Curd exhibited with his answer, 1. A deed executed by the vestry of St. James Northam to T. Bates, dated the 22nd October 1788, conveying the Glebe, as containing 200 acres, to Bates; on which deed there was a writing indorsed in these words — “Memorandum, the within land having been purchased by David Ross on the joint account of himself and me, I do hereby oblige myself to convey to him, by good and sufficient deed, one half thereof when thereto required;” signed and sealed by Bates. But no conveyance from Bates to Ross could be found of record in the county court. 2. A deed from David Ross to Henry Coleman, dated the 11th December 1807, conveying to Coleman a parcel of land called the Goochland court house estate, describing it as containing 1500 acres, and as having been conveyed to Ross on the same day by Edmund Rootes and Wilson Allen. And 3. a deed from “'Coleman to E. Argyle, dated the 25th July 1808, conveying the same land to him.

It appeared by an ex parte survey, inserted in the record, that’Miller was now in possession of 31 acres of the Glebe land, and W. Guerrant of 70 acres thereof (Guerrant, no doubt, claiming by purchase from Miller).

In March 1830, the county court perpetuated the injunction; and decreed, that Miller’s bond for the last instalment of the purchase money, should be delivered up to be cancelled; and that the trustees T. Curd and Anderson should execute a release of the deed of trust, to Miller. Prom which decree the defendant J. Curd appealed to-the superiour court of chancery of Richmond.

While the cause was in the court of chancrey, Miller exhibited the record of another suit in chancery in the county court, in which William Guerrant was plaintiff, and Curd, Miller, and the trustees in Miller’s deed of trust to secure the purchase money to Curd, were defendants: from which it appeared, that Guerrant had purchased of Miller a part of the land that Miller had purchased of Curd as executor of Argyle, including about 70 acres of the 100 acres mentioned in Miller’s bill against Curd and others; that Miller had assigned Guerrant’s bonds for the purchase money to Curd; and that Curd had brought suit on Guerrant’s bond for the last instalment, and had recovered judgment: and the object of the suit was, to injoin proceedings on that judgment, on account of the defect of title of the 70 acres. That suit was yet pending.

The chancellor, in this suit of Miller against Argyle’s executor and others, reversed the decree of the county court; and, proceeding to make such decree as the county court ought to have made, dissolved the injunction that had been awarded to Miller, and dismissed his bill, -with costs. And then Miller appealed to this court.

Leigh, for the appellant.

Stanard and Lions, for the appellees.

*

-Deed of Trust — Cloud on Title — Injunction to Sale.— It seems well settled that a sale under a deed of trust will be enjoined where any cloud rests on the title which would occasion a sacrifice at the sale. *Set foot-note*to Lane v. Tidball, Gilm. 130, citing many cases and notes on this subject.

The principal case was cited on the point in Beale v. Seiveley, 8 Leigh 675; Bryan v. Stump, 8 Gratt. 247; Peers v. Barnett, 12 Gratt. 416; Faulkner v. Davis, 18 Gratt. 662; Rosenberger v. Keller, 33 Gratt. 494.

Same — Samé—Duty of Trustee. — See *foot-note*to Lane v. Tidball, Gilm. 130, citing many cases in point; *foot-note*to Gibson v. Jones, 5 Leigh 370. The principal case was cited on this subject in Washington v. Hupp, 10 Gratt. 53; Rossett v. Fisher, 11 Gratt. 499; Muller v. Stone, 84 Va. 837, 6 S. E. Rep. 223; Morriss v. Virginia, etc., Co., 90 Va. 374, 18 S. E. Rep. 843; Spencer v. Lee, 19 W. Va. 188; Hartman v. Evans, 38 W. Va. 679, 18 S. E. Rep. 814.

†

Chancery Practice — Answer—Failure to Respond to Material Allegation of Bill — Effect.—See, on this subject, *foot-note*to Cropper v. Burtons, 5 Leigh 426. The principal case is cited to the point in Clinch, etc., Co. v. Harrison, 91 Va. 132, 21 S. E. Rep. 660.

†-Appeflate Practice — Remanding Cause That Party Hay Adduce Proof. — See principal case cited in Watkins v. Carlton, 10 Leigh 573; *foot-note*to Cropper v. Burtons, 5 Leigh 426.

“CARR, J.

I am of opinion that the decree should be affirmed. I shall notice first the objection as to the hundred acres, and then as to the sixteen and a half acres. Curd, as executor of Argyle, sold, under a decree of the court of chancery, a tract of land, at public auction, and Miller became the purchaser. This was in 1817. The land was estimated at 1033 acres; and he gave his three bonds for the purchase money in instalments, with a deed of trust to secure the payment, having first received a conveyance from Curd, which is not in the record. The first two bonds were paid, and part of the third: and then this bill was filed, to stay a sale under the deed of trust. With respect to the hundred acres, the statement is, that the legal title is outstanding in Bates’s heirs. The bill gives no description of the 100 acres; how situated ; how bounded; what relation it bore, in position or value, to the whole tract; nothing, indeed, by which it could be identified, but the belief expressed that the legal title was in Bates’s heirs. This points us to a sale of the Glebe land made in 1788. It was sold as 200 acres, to Bates and Ross. The deed was made to Bates, and he indorsed on it, under his seal, that the land had been bought by Ross and himself, on joint account, and that he thereby obliged himself, to convey Ross one half thereof, whenever" thereto required: this was recorded with the deed. A division of the tract was made between Bates and Ross, and each from that time held his part in severalty. Ross’s part formed a part of a much larger tract called the court house *178tract; which Ross conveyed to Coleman, he to Argyle, and his executor to Miller. These hundred acres have been held by Ross, Coleman, Argyle and Miller, successively, from the year 1788 to the present day, without interruption or claim by Bates’s heirs. They had been so held near thirty years when Miller bought. Under these circumstances, is it not monstrous to think of injoining the purchase money for this land, and still worse to perpetuate that injunction? Can any body doubt that Miller knew well, at the time of his purchase, that this legal title was outstanding? He the clerk of the county court, recording *that very deed to Bates with the indorsement, and the land lying just at the court house, and forming a part of that tract. But if it were not so, how 'could he be hurt by the legal title? His equity was so strong and clear, that it would, at any time that he chose to make the effort, draw to it the legal title. At any rate, this formed so remote a ground of possible danger, that the vendee, .both on the reason and justice of the case, andón the authority of Richards v. Mercer, 1 Leigh 125, 138, might well be left to the covenants in his deed for indemnity. Then, as to the sixteen and a half acres: the plaintiff has filed with his bill the fragment of a record, containing the finding of the jury and judgment of the court, without any of the pleadings. It shews that the plaintiff recovered of Payne thirty acres of the land in controversy, and that as to sixteen and a half acres, the tenant was adjudged to have the better title: but non constat, these thirty or these sixteen and a half acres formed any part of the land bought by Miller of Curd. There is nothing earthly to connect the two subjects together. How then could any court connect them? It is the business of every suitor, who brings a case before the court, and asks its decree, to make out such a case as will justify the court in decreeing for him. Here, the cause was set for hearing by the plaintiff Miller; it stood on that order for six years; was then heard by consent; and, in all this time, no step was taken by the plaintiff to furnish this link so necessary to shew that he was injured. But it was said, he could probably do this, and that notwithstanding his neglect, the chancellor, when he reversed the decree of the county court, ought to have sent the cause back, or retained it, for further proofs. I cannot think this would be right. Was the court moved to retain, or to send back the cause? We see no proof of it. It is the ingenuity of the counsel here, which has raised this objection : the counsel in the court below were willing to rest on the appeal alone. Was it the duty of the chancellor, without any wish expressed by the party, of his own mere motion, to say this cause shall go back for more evidence? and shall we reverse his decree, because '^he has not said so? I cannot agree to this. The chancellor is said to exercise a guardian care over infants, lunatics and others not sui juris; but this would make him the guardian of the whole community of suitors. An affirmance of the decree will not deprive the plaintiff of compensation, if he has lost the sixteen and a half acres by eviction: he can sue at once on the warranty in his deed, which he ought to have done in 1819; and in such suit, he can shew, if the truth be so, that this is a part of the land he bought of Curd, and what is its value. There is no suggestion of insolvency in Curd, or the estate he represents.

TUCKER, P.

This record presents a very hard case indeed upon the creditor. As long ago as 1823, this injunction was granted to restrain him from proceeding to sell under the deed of trust for the balance of the purchase monej'. But this is not all. The appellant having sold part of the land, including a part of that of which the title is questioned, and having paid part of his own debt by assignment of his vendee Guerrant’s bonds, Guerrant also has in-joined the original vendor, so that, by this means, the value of the land held by doubtful title is doubly tied up. This consequence, however, has proceeded, I apprehend, from the case having been badly managed, and ought not to affect the decision here.

That the decree of the county court was properly reversed, is too obvious to require the grounds of reversal to be stated. Let us pass rather to the inquiry, What decree should the court of chancery have made? That court, in proceeding to reverse the decree of the county court, went on, professing to make such decree as the county court ought to have made, and thereupon dismissed the bill. Ought the county court to have dismissed the bill? I think not. The case, it must be observed, is not that of an injunction to a judgment at law. It is an injunction to a sale under a deed of trust, on the ground of defect of title. Now, a distinction has always been strongly drawn, between these cases; for it never can be equitable, to permit a sacrifice by *sate under a doubtful title, though it may be but just that the vendor should be suffered to enforce a judgment for his purchase money, where the vendee is in possession, since the doubt about the title may eventually turn out to be frivolous and groundless. Accordingly, it has been decided, that if there is a cloud hanging over the title, or if the amount to be raised is uncertain, the sale should be injoined. Lane v. Tidball, Gilm. 130; Gay v. Hancock, 1 Rand. 72. In this case, the bill distinctly alleged the loss of sixteen and a half acres of the land on the trial of a writ of right; and it also alleged a defect of title as to the hundred acres. It moreover prayed for a survey as to the hundred acres, in order to ascertain the exact quantity to which the title was defective. As to the first allegation the answer is silent. As to the second, after setting forth the state of the title, which is merely equitable, and the length of possession which furnishes strong presumption in favor of the title, the defendant alleged, that the plaintiff must have been conusant of the title as he was clerk of the county court. Here, then, is a charge of defect .of title as to part, not denied ; and an imperfection of title as to the hundred acres admitted.

As to the first, what should have been done? Shall we take the . matter charged, and which has not been denied to be true, *179according to the doctrine supposed to be laid down in Scott & ux. v. Gibbon, 5 Munf. 86? This would be against the settled doctrine, that though upon a motion to dissolve, the matters not denied must be taken as true, yet, on the final hearing, they must be proved or the plaintiff will fail. Young v. Grundy, 6 Cranch 51. In Coleman v. Lyne’s ex’or, 4 Rand. 454, it is said, that the plaintiff must except to the answer, and if sustained and a further answer ordered, and the defendant refuses to answer, the bill may be taken pro confesso; Jopling v. Stuart, 4 Ves. 619. And this is doubtless the true course, where the plaintiff being without proof, finds it necessary to appeal to the defendant’s conscience. But if a material allegation which is not denied, can be proved by the plaintiff, I *am not aware of any case in which it has been held, that he must compel the defendant to make up an issue upon that point, before he shall be permitted to take his depositions, or to file his documentary evidence, in proof of it. In this case, then, the plaintiff might have introduced evidence to prove, that the land he lost by the writ of right, was within the boundaries of the tract he had purchased of Argyle’s executor, and without ascertaining that fact, the court should not have decreed in his favor. But should it have dismissed "his bill? Should it not rather have called for proof of the fact, or by order of survey instituted an inquiry in relation to it, as it had been distinctly alleged and the defendant had not denied it? I think it should. In Scott v. Gibbon, judge Coalter after intimating an opinion, that the allegation ■ought to be considered as admitted, remarks —'“At all events, such a waiver of that point of defence ought not to be permitted to entrap the party on the final hearing, but the court, if further proof of that fact was considered material, ought to have instituted an inquiry on the point.” In these sentiments I heartily concur, and I think the3r are peculiarly appropriate to cases like the present. There is here, indeed, an additional reason for the appellate tribunal sending the cause back, to enable the party to prove his case. It is, that the inferiour tribunal has been satisfied with his proofs. Instead of calling for those proofs, which ought to have been furnished, —instead of directing a survey to ascertain a material fact, usually ascertained in that way, — the county court has acted, probably upon its own knowledge of the fact, or upon some admission at the bar, and, in effect, decided that the sixteen and a half acres are parcel of the purchased land. What was the plaintiff to do? To insist upon a survey, when the court was satisfied? And if he did not, is he to lose his rights by being thus surprized and entrapped? I think not. Where an inferiour court has considered the proofs as full, and the appellate court regards them as defective, but sees clearly from the facts in the case, that the proof may be supplied, and that the party who has failed to produce it has been surprized, "*or lulled into a false security, justice requires that the case should be sent back for further proceedings. I refer to what I have said in Cropper v. Burtons, ante 431, and in the case of Duff v. Duff’s ex’or, 3 Leigh 523, as containing my views in relation to this matter.

As to the second defect, I really think the objection under all the circumstances very groundless, but I am not sure that a purchaser at a sale under the deed would have thought so. And though I would have dissolved the injunction as to the price of the hundred acres, I would have directed, that the sale should be made of such portion as might be necessary to raise the sum due, to be laid off in that part of the tract, the title of which is not questioned.

Upon the whole, I am of opinion, that the decree of the chancellor should be reversed, the injunction reinstated, and the cause sent back for further proceedings in the circuit superiour court, where by law it ought to be retained, unless good cause be shewn to the contrary; 1 Rev. Code, ch. 66, | 56. By those proceedings, the court should ascertain, whether by the deed of Curd to Miller, his vendor has rendered himself responsible for the title; and if so, whether the sixteen and a half acres of land alleged to have been lost, are part of the premises conveyed, and what is the relative value of that part. For the value so ascertained, the injunction should be perpetuated, if the vendor is responsible for the title, and if the sixteen and a half acres, adjudged to Payne, should prove to be comprehended in the deed to Miller; and for the residue of the sum injoined, the injunction should be dissolved. And if the vendor is not responsible for the title, or if the land adjudged to Payne, should not be within the boundaries of the deed to Miller, or if the judgment in the writ of right was per fraudem, then the injunction should be dissolved in toto; but in the event of a dissolution, in whole or in part, the trustee should be restrained from offering for sale any part of the hundred acres (the title to which is supposed to be doubtful) without the consent of the appellant.

*CABEBB, J.

This is not an injunction to stay proceedings on a judgment for the purchase mone3r of laud. It i§ unnecessary, therefore, to defend the correctness of the position advanced b3' judge Green, with the concurrence of the other judges, in Ralston v. Miller, 3 Rand. 49, that “this court has, in favor of purchasers, gone far beyond any thing which has been sanctioned by the courts of chancery in England, or elsewhere, in injoining the payment of the purchase money, after the purchaser has taken possession under a conveyance, especially with general warranty.” Nor is it necessary to inquire, whether, if this were an injunction to the collection of purchase money, it would present a case proper for relief, according to the course of this court. The case before us, is an injunction to the sale of land under a deed of trust, and comes within the principles of Bane v. Tidball and Gay v. Hancock, which reprobate the sale of lands when clouds are hanging over the title. I am for reversing the decree, reinstating the injunction, and remanding the cause with the directions *180mentioned by the president, in whose views of this case I entirely concur.

BROOKE and BROCKENBROUGH, J., concurred.

Decree reversed, and cause remanded &c.