#### *Long’s Ex’or &c. v. Israel and Others.

December, 1838,

Richmond.

(Absent Brooke, J.)

Case at Bar — Sale of Land. — A. in consideration of a certain price per acre to be paid him by B. undertakes to procure C. who is in possession of a tract of land as owner thereof, to make a good deed for the same to B. with general warranty ; A. purchases the land from 0. pays him the purchase money, and directs him to make the conveyance to B. which is made accordingly, with general warranty; B. executes to A. his notes for the price agreed upon between them, and takes possession of the land, which he holds without eviction or disturbance : Held,

i. Same — Same—Defect of Title — Equitable Relief.— Equity will not injoin A. from collecting the money due him by B. whatever be the defects of G. ’s title to the land.

a. Same — Same—Same—Same.—No eviction or disturbance of B. ’s possession having taken place, defect of title is no ground for his coming into equity against G.

Same — Same—Usury.*—B. represents to A. that he had been desirous of purchasing O.’s land, but had not done so, from inability to advance funds as speedily as G. required, and that he wishes A. to buy the land and let him have it; whereupon it is agreed that A. will buy the land as cheap as he can, and that B. will pay him 900 dollars for it. A. makes the purchase at the price of 750 dollars, and the land is conveyed to B. who gives his notes to A. for the 900 dollars. Held, the transaction between A. andB. is free from objection on the ground of usury.

Sale of Land — Conveyance Erroneously Describes Land— Equitable Relief. — Laud sold being erroneously described in the conveyance executed by vendor, mistake corrected on bill inequity filed by vendee.

Chancery Practice — Costs—Form of Decree for† — Case at Bar. — On dismissing a bill filed by the heir and the executor of vendee, to have a title made for the land purchased, and meanwhile to injoin vendor from collecting the purchase money, decree for costs should not be against the plaintiffs jointly, nor against the executor de bonis propriis.

Appeal from a decree of the late superiour court of chancery holden at Clarksburg.

The bill was filed in August 1820, by Daniel Dong, and set forth, that in 1814, the complainant, being desirous to acquire a . tract of land in Harrison county, *then belonging to Henry Coffman, and said to contain 225 acres, applied to Jacob Israel to purchase the same for him; being restrained from applying to Coffman himself, by a difference of a personal nature between them. That the price to be given for the land was limited by complainant to four dollars per acre. That Israel undertook the business, and some time thereafter informed complainant that he had made the purchase at four dollars per acre, payable in instalments. That complainant agreed to take the contract off his hands, and accordingly paid him 50 dollars in advance, and executed notes for 850 dollars more, making the sum of 900 dollars in all; and Israel executed a bond, binding himself to procure Coffman to make a title to complainant for the land. That Coffman did execute to • complainant a conveyance purporting to be for the said tract of 225 acres, which was described therein by certain courses and distances. That for the purpose *199of securing to Israel the payment of 600 dollars of the purchase money (the residue having been satisfied), and indemnifying him as endorser for complainant on a note of 300 dollars due to the Virginia Saline bank, complainant executed to James Pindall a deed of trust, conveying the said tract of land, and another small tract. That the note to the Saline bank had been since paid by complainant, and he had also made additional payments to Israel on account of the land, amounting, with the previous payments, to 554 dollars. That the deed from Coffman to the complainant was drawn by Israel himself, who was a surveyor, and to whom the entire management of the business was confided by complainant; and Israel alleged that he had inserted in the deed the true boundaries and quantity of the land; but complainant had since discovered that, the deed did not contain the real boundaries of the tract belonging to Coffman at the time of the purchase, but on the contrary, the boundaries therein set forth were *so materially different from the true boundaries, as not only to include a much smaller quantity of land than complainant had contracted for, but also to leave out the most valuable and desirable part of the tract; yet Israel, on having this mistake pointed out to him, had refused to do any thing towards correcting it. That although Israel had represented that his purchase of the land from Coffman was at the rate of four dollars per acre, yet complainant had discovered that representation to be fraudulent, the real price being much less, amounting only, as complainant was informed, to between 500 and 600 dollars in the whole, instead of 900 dollars. That Israel had proceeded to force a sale of complainant’s lands under the trust deed, at which sale Israel himself became the purchaser. That the sale was not made by the trustee Pindall, who was then absent from the commonwealth, but by a cryer acting under the directions of Israel, and without any previous advertisement ; Israel himself stating, in order to discourage competition for the land, that there would be a dispute about it, — that complainant would contest the sale. That although complainant was still in possession of the land, yet Israel threatened to turn him out ; denying the payment of the debt to the Saline bank; sometimes denying that he was the agent of complainant in the purchase from Coffman, or that complainant had paid any part of the purchase money of the land. That Pindall refused to release to complainant the legal title which he acquired as trustee, insisting that the sale had been duly and properly made in execution of the trust. That Coffman alleged that he sold to Israel, and intended to convey to complainant, no more or other land than was comprised within the boundaries specified in his said deed ; and he claimed to hold the residue of the tract. The bill made Israel, Pindall and Coffman parties defendants ; and prayed, that Israel be prohibited from disturbing complainant’s possession, by *virtue of the sale and purchase under the trust deed ; that the sale be set aside, and the trust deed cancelled ; that the title to the entire tract of 225 acres, should it be adjudged not to have pa,ssed by the conveyance from Coffman, be decreed to complainant ; that Israel be prohibited frotn claiming any greater sum for the land, than the price contracted to be given by him to Coffman ; or should the complainant be adjudged not entitled to more land than the boundaries mentioned in Coffman’s conveyance contained, that the quantity within those boundaries be ascertained, and a deduction decreed for the deficiency, at the rate agreed upon between the complainant and Israel; .and general relief.

The bond executed by Israel to Bong, referred to in the bill, was exhibited therewith, it was dated the 17th August 1814, and was in the penalty of 2000 dollars, with condition that Israel should “ cause and oblige Henry Coffman to make a good general warranty deed to Bong for the tract of land that the said Henry now lives on, the same to contain 225 acres, more or less.”

The conveyance from Coffman to Bong, and the deed of trust from Bong to Pindall, were also exhibited with the bill. By the former, Coffman and wife, for the expressed considera.tion of 650 dollars, bargained and sold to Bong a tract of land in Harrison county, lying on Robinson’s run, bounded according to certain courses and distances particularly ser forth in the deed, and containing 225 acres, more or less : with a covenant of general warranty on the part of Coffman. By the said deed of trust from Bong to Pindall, the power to sell the property therein conveyed was vested in Pindall, “or his heirs or assigns, or certain attorney.” All of the defendants answered the bill. The answer of Israel stated, that he had but lately removed to the neighbourhood, and was totally unacquainted with Coffman’s land, when complainant applied to him, stating that he had been desirous of purchasing that land, but *had not done so, from an inability to advance funds as speedily as Coffman required, and that he wished respondent to buy the land and let him have it; and it was then agreed between respondent and complainant, that respondent would buy the land as cheap as he could, and that complainant would pay respondent 900 dollars for it by instalments. That the terms of this agreement were proposed by the complainant himself. That respondent made thepurchase from Coffman, at the price of 750 dollars, of which the sum of 100 dollars was to be paid immediately. That complainant accepted the conveyance made by Coffman, and executed his notes to respondent, as set forth in the bill. That until these transactions took place, respondent was a total stranger to Coffman’s land, its title and boundaries. That it was fully understood between respondent and complainant, that complainant wanted and would take the land which had been conveyed to Coffman by William Hull, and was satisfied with Coffman’s title thereto ; and complainant himself particularly mentioned, that respondent ought to have the deed from Hull to Coffman, in order to describe the boundaries in the conveyance to *200be executed by Coffman. That the description and boundaries of the land contained in the deed from Coffman to complainant were accordingly copied from Hull’s deed to Coffman. That respondent never surveyed the land, or calculated the quantity, nor had he given to complainant any assurances, or in any wise deceived him, in relation thereto. That complainant still held the land under his title, to which he had made no objections until he was pressed for payment of the purchase money. That it was true, complainant had paid off the debt to the Saline bank, and 554 dollars of the purchase money of the land ; and respondent had never denied either of those payments. That the sale under the trust deed was fairly and regularly made, by an attorney appointed by Pindall the trustee, *in conformity with a power reserved in the deed; and it was not true that respondent had done any thing to injure the sale. That complainant well knew, and had been expressly informed by respondent himself, that he waived all claim to the land under the said sale, and that neither the trustee nor his agent had ever made, or been required to make, any conveyance thereof.

Coffman answered, that he knew nothing of the dealings between the complainant and Israel, stated in the bill. That in August 1814, respondent sold the land mentioned in the bill, to Israel, for 750 dollars, of which 100 dollars was payable immediately, and the residue in several instalments. That Israel had long since paid him the whole price of the land, and he, by Israel’s direction, had conveyed the same to complainant. That complainant, before any treaty between Israel and this respondent, had been endeavouring to buy the land from respondent, but could not make a bargain therefor, because he would not or could not make payment so soon as was required. That respondent intended to convey to complainant, and supposed he had conveyed, the same land which he had purchased from William Hull as containing'225 acres ; and he neither knew nor admitted that the tract contained a less quantity. As to the charge that a part of the tract was not included in the boundaries specified in his conveyance, respondent did not believe or admit the same to be true; but if it were true, he felt convinced that his title to the land intended to be conveyed was a good one, and hoped that the mistake in the boundaries might be corrected. And inasmuch as complainant had accepted the conveyance, and had never been evicted, or even disturbed in his possession, respondent insisted that there was no cause for prosecuting the suit against him.

Pindall, the trustee in Long’s deed for the benefit of Israel, answered, that being absent from the commonwealth, he had, at the request of Israel, appointed one ’"Webster his attorney to make sale under the trust; and on his return to Clarksburg some time afterwards, he was informed that the sale had taken place, but had been waived in consequence of objections made thereto by Long.

The complainant replied generally to the answers, and commissions were thereupon awarded the parties for taking the depositions of their witnesses. By the testimony in the cause, the charges made in the bill, of Israel’s agency for Long in the purchase of the land from Coffman, and of his fraudulent conduct therein, were clearly negatived ; and the representation given by Israel, in his answer, of the nature and terms of the agreement between Long and himself, was fully sustained. But there was no doubt, that the description and boundaries of the land, contained in Coffman’s deed to Long, and in William Hull’s deed to Coffman, were grossly erroneous. The last mentioned deed was filed as an exhibit with the answer of Israel; and in the progress of the cause, three other conveyances of the same tract of land were filed; namely, a conveyance from John Hall the original patentee, to John Hull; a conveyance from the said John Hull to Joseph Lambert; and a conveyance from the said Joseph Lambert to William Hull, by whom the land was conveyed to Coffman the grantor of Long. The boundaries of the tract were differently described in each of the first four conveyances. And by two plans of survey made and returned in the progress of the cause by Cyrus Haywood surveyor of Harrison county (the first under an order of the court, the second, bearing date the 19th day of April 1823, by consent of the parties) the real boundaries of the land forming the subject of controversy were delineated according to the original survey made for John Hall, on which his patent was founded ; whereby it appeared, that the conveyances aforesaid varied as well from the original survey as from one another, in the description *of the boundaries, although the first of the series, the conveyance from Hall the patentee, was but slightly incorrect. But in the two last conveyances of the series, among numerous other mistakes of description, one of the original lines was. wholly omitted, and the course of another reversed ; and according to the surveyor’s delineation of the courses and distances as given in those two deeds, the commencing and terminating lines did not meet at all, and the deeds embraced but 27% acres of the land contained in the original survey. It further appeared that of the 225 acres comprised within the original survey, 27% acres was covered by an elder survey and patent of one Benjamin Robinson.

Pending the suit, Long the plaintiff died ; and on the 16th of October 1822, the cause was revived by consent in the names of Henry Caruthers the executor, and Catharine Fitze the devisee of Long ; who, at the same time, obtained leave to file a supplemental bill at the rules.

On the 20th of May 1823, the plaintiffs filed a supplemental bill; but this was done in court. The bill set forth, that since the death of Long, the plaintiffs had received notice from Benjamin Robinson, that he claimed the lands in the bill mentioned, sold by the defendant Israel to Long, and that his claim was founded on the following circumstances : — That John Hall the original holder of said land, and from whom William Hull the vendor to Coffman derived his title, *201was a sheriff of the county of Harrison, and as such became delinquent to the commonwealth on account of the revenue tax collected by him : that a judgment was obtained by the commonwealth against the said Hall, and an execution issued, upon which execution he surrendered, among other lands, the aforesaid tract; he having the legal title thereto at the time of such surrender, and the judgment of the commonwealth moreover operating as a previous lien thereon :

that the said land *was purchased in for the use of the commonwealth, and since the death of Long, the agent of the commonwealth had made public sale thereof, and Robinson had become the purchaser: and that Robinson had, since his purchase, not only asserted his claim to the land, but notified the tenants thereof to pay the rent to him. The plaintiffs expressed their belief, that on investigation, it would be found that the title to the land was not in Coffman at the time of his conveyance to Long. And they prayed, that Robinson might be made a defendant, and compelled to set out the nature and character of his claim to the land ; that if it should appear that Coffman’s title, at the time of his conveyance to Long, was defective, the contract between Israel and Long might be rescinded ; and general relief.

On the day after the filing of the supplemental bill, the court set aside the order receiving it ; expressing the opinion that it was filed too late to avail anything under the leave granted, and therefore formed no part of the case. And the court being also of opinion that upon the original bill, answers and evidence, the case was clearly against the plaintiffs, decreed that the bill be dismissed, and that the defendants recover against the plaintiffs their costs. Erom this decree the plaintiffs appealed.

C. Johnson and G. N. Johnson for the appellants.

Grattan for the appellees.

*

Usury. — See principal case cited in Myers v. Williams, 85 Va. 629, 8 S. E. Rep. 483. See also, mono-graphic *note*on “Usury” appended to Coffman v. Miller, 25 Gratt. 698.

†

Costs. — See monographic *note*on “Costs” appended, to Jones v. Tatum, 19 Gratt. 720.

PARKER, J.

I do not think the court of chancery committed any error in disregarding the supplemental bill. The object of that bill was to rescind the contract made between Israel and Long, and to recover back the purchase money from Israel, on account of an alleged defect of title in Coffman. But Long had no claim upon Israel for any defect of title to the land in the proceedings mentioned. He contracted to take the *title of Coffman ; and in case of eviction, Coffman, not Israel, will be liable to him upon the covenant of warranty. Until eviction, however, which may never happen, this court cannot anticipate the operation of Coffman’s covenant, by rendering him responsible in damages, to the same extent as he will be at law, should the title prove to be a defective one. This is not like the case where resort has been allowed to the preventive justice of the court, to arrest the compulsory payment of purchase money, when the purchaser can shew that his title has been questioned by a suit prosecuted or threatened, or is clearly defective.' That proceeding is allowed against the person liable for the title, and whose claim for purchase money is sought to be injoined. But here, one person claims the balance of the purchase money, and another is liable on his covenant of warranty for the title ; which brings the case within the direct and controlling authority of the principle stated in Koger et al. v. Kane’s adm’r &c., 5 Leigh 606.

Nor do I think that the contract, as set out in the answer of Israel, is liable to the imputation of usury. There was no agreement for the loan or advance of money to Long, and no forbearance of a debt due ; but it is a contract on the part of Israel to sell Long a tract of land for 900 dollars, if he succeeded in purchasing it from Coffman. On the part of Long, it is an executory contract to pay the 900 dollars, depending, for performance, upon circumstances which might prevent its ever becoming a debt. His real object was to buy land, provided he could get it for a stipulated sum, andón suitable terms of payment ; and there was no negotiation for the loan of money, or the forbearance of any debt. This is apparent, not only from his own account of the transaction, but from the stipulations of the bond taken from Israel when the contract was consummated. By that bond, Israel incurred a responsibility which it might have taken more than the 900 dollars to discharge ; *for he bound himself in the penalty of 2000 dollars, to procure a good deed with general warranty to be made to Long by Coffman. Whatever therefore was the nature of the original executory agreement, it was relieved from all taint of usury when it came to be executed. But the decree is clearly erroneous in several particulars.

1. If the court was right in dismissing the bill and decreeing costs, it ought not to have decreed against the appellants jointly, nor against the executor de bonis propriis.

2. The deed from Coffman to Long was not such “ a good general warranty deed ” as Israel was bound to procure, for the tract of land described in the bond and intended to be sold. That deed was manifestly defective, conveying only a small portion of the land, and embracing other land not within the contemplation of the parties. These errors ought to have been corrected, by decreeing Coffman to execute a deed with general warranty for the land contained in the survey made by Cyrus Haywood on the 19th of April 1823 ; for although Long might probably, with the aid of parol evidence, have established the true boundaries of the land he contracted to buy, he had a right to insist upon a correct and sufficient deed.

3. The decree ought, I think, under the circumstances that had taken place, to have directed a reconveyance of the legal title outstanding in Pindall, upon the payment of the balance of the purchase money by Long to Israel.

The bill, therefore, ought not to have been dismissed, but a decree should have been entered conforming to this opinion, giving costs to the plaintiffs to be paid by Israel; and for not having done so, this court ought now to reverse the decree with costs, and remand the case for further proceedings.

*202*CABELL, J..

As to' the merits of this case, I have nothing to. say, but to express my entire concurrence in the opinion delivered by judge Parker.

But as reference has been made to the case of Koger et al. v. Kane’s adm’r &c., 5 Leigh 606, I deem it my duty to avail myself of the occasion, to correct a mistake into which mr. Leigh was led, in the report of that case. It is there stated, that the other judges concurred in the opinion delivered by the president. The8 fact was somewhat different. The court which decided that case consisted of only three judges; the president, judge Carr, and myself. There was no difference of opinion between the president and judge Carr. But I differed from them both, as to one point. I did not think that Kane, who had purchased from Koger, had agreed to “ take the title of Preston and therefore I was of opinion that he still retained his right to injoin the purchase money due from him to Koger. On all other points I agreed with the rest of the judges. My opinion was reduced to writing and delivered in court, and I intended to hand it to the reporter. This, however, I omitted to do; and mr. Leigh, finding but one opinion in the record which was given to him, naturally, inferred, and therefore stated, that the other judges had concurred. My opinion in that case will now be handed tomr. Leigh, with a request that it may be published as a note to this case.*

TUCKER, P.

The decree in this case is, I think, plainly erroneous, in decreeing costs de bonis propriis against the executor, and in failing to require a new and sufficient deed to be executed by Coffman. The deed from Coffman to Long is void for uncertainty, as also is that from Hull to Coffman, for there is no other description of the land sold than a setting forth of the *boundaries, which not only do not cover the land sold, but do not meet. A tract of land may be well described without setting out the bounds; or it may be well described by setting out the bounds, without any thing more ; but in this latter case, the boundaries set out ought to shew forth the land, so that it can be identified. The error in this case was anteriour to Coffman’s deed; but it may not perhaps be necessary to correct the deed to him, as well as that from him. It will suffice if Coffman makes a deed according to Hall’s survey, as laid down on the plat.

I am also of opinion that the sale should .have been set aside, on the authority of Gay v. Hancock &c., 1 Rand. 72, for no sale could have been fairly made where the title was so radically defective. But I see no foundation for the charge of usury, nor any error in refusing- to make an allowance for the supposed interference with Robinson of *27%*acres. As to the supplemental bill, it was obviously not necessary to settle the question whether Israel was entitled to his money. Had the deed been regular, the supposed superiour title of the commonwealth would have been nothing to him, for he did not make himself in any way responsible for the title. He is only bound to procure Coffman’s deed with general warranty. When he does this, he is entitled to his money. Then, as to Coffman. If Long had purchased from Coffman, he might well say, “As the contract is still executory, I will not go on with it; equity will not compel me to take a bad title:” and in this way, the facts set forth in the supplemental bill would be important. But Long did not purchase of Coffman. He dealt with Israel, and Israel purchased of Coffman, and has paid his money for the land. The contract, then, cannot be rescinded by Long, and his only redress is upon his general warranty. This redress he cannot assert in a court of equity, nor in anticipation of an eviction which'has not occurred, and may *never occur. He cannot assert it in equity, because that court is not the proper tribunal to give damages for breach of a warranty ; nor can he assert it in anticipation of an eviction, on the ground that the title is defective, for that would be to convert a covenant of warranty into a covenant for good title, whereas they are essentially and intrinsically distinct. The vendor of land, who has some doubts about his title, but has had a long possession which a short time may mature into a perfect title, may be very willing to give a warranty, but very unwilling to covenant for good title, since that covenant subjects him to an immediate action if there be a single defect in the chain of title. It is on these principles that in England relief has been denied in equity byway of injunction, where the vendee has obtained his deed and possession. They are, I doubt not, the true principles of a court of equity. We have indeed gone farther in Virginia, in relieving by injunction; but we have never gone so far as to interfere except where the application was to restrain the recovery of the purchase money. That is not the case here. As to Coffman, this bill (except so far as it seeks a correction of the description in the deed) is purely an action upon the covenant of warranty, brought before eviction, and when probably no eviction may ever occur. Upon the whole, therefore, the supplemental bill was properly disregarded.

Eor the errors already mentioned, the decree is to be reversed, and the cause remanded for further proceedings.

The opinion delivered by Cabell, J., in the case of Koger et al. v. Kane’s adm’r &c., 5 Leigh 606, (see his remarks, ante, p. 567.) was in the following terms:

I am of opinion, on general principles, that the purchaser of land is entitled to in join the purchase money, for any deficiency in the quantity of the land, whether that deficiency arises from the fact that the boundaries in the deed do not contain the stipulated *quantity, or from the fact that a portion of the land contained within the boundaries of the deed is embraced by the superiour title of others. I do not understand this position to be contradicted by the opinion of the other judges.

But I do understand the majority of the court to be of opinion, that in this case, Kane will not be entitled to any redress against Koger, and conse*203cmently not against Ms assignee Sailing, provided the deficiency in the quantity of land proceeds from defect of title to lands embraced by the calls of the deed. I understand this opinion to be founded ,on the particular nature of the title bond executed by Koger to Kane, in which Koger binds himself “to make or cause to be made to the said Kane and his heirs, a good and sufficient deed in fee simple with general warranty,” &c. It is admitted, as I understand the opinion, that if Koger had only bound himself and his heirs to make the deed in fee simple with general warranty. Kane would be entitled, notwithstanding he had received the deed, to injoin the purchase money. But it is contended that Koger, haying contracted for the privilege of causing the deed to be made by others, has discharged himself from all obligation, both at law and in equity, by his causing the deed to be made by Preston. I cannot perceive the force of this distinction. If the acceptance of the deed from Koger himself would not discharge Koger, I cannot see how the acceptance of a deed made by another, at Ms request, should discharge him. I am decidedly of opinion that he is not discharged in either case. Although the execution of the deed, if conformable to the bond, be a discharge of the legal obligation, yet equity looks beyond the letter of the bond. It looks to the substance of the contract, which is, that a good and sufficient title in fee simple shall be made to the land contracted for; and when it sees that this has not been done, it will injoin the purchase money, the party not having got its consideration.

But this is not all. The deed executed by Preston, so far from complying with the spirit of the bond, is not a compliance even with its letter. The bond recites that Koger had sold to Kane “all that tract or parcel of land lying in Scott, being known by the name of the Plat Lick, containing four hundred and sixty-fonr acres;” and then goes on to declare that “if the said Koger shall make or cause to be made unto the said Patrick Kane, and to his heirs, a good and sufficient deed in fee simple, with general warranty, for the said four hundred and sixty-four acres,” then the obligation tobe void. Now, this is a positive stipulation that the land contracted for contained 464 acres; and it bound Koger to convey or cause to be conveyed 464 acres, with general warranty. But the deed made by Preston did not even profess to convey 464 *acres. It professes to convey and to warrant only the land contained within the boundaries mentioned in the deed, whether the quantity be more or less than the 464 acres. How then can the execution of this deed, if the quantity of land conveyed and warranted be less than 464 acres, be a compliance with a bond which calls for a deed conveying and warranting 464 acres? Iam clearly of opinion that it does not take away Kane’s right to redress against Koger.

I concur in the other parts of the decree prepared by the president. Note in Original Edition.

*

See the opinion in a note at the end of this case.