#### *Bryan v. Lofftus’s Adm’rs.

May, 1842,

Bichmond.

[39 Am. Dec. 242.]

(Absent, Stanabd and Baldwin, J.*)

Sale of Land—Specific Performance—Denied to Vendor — Contract Rescinded—Account Taken between Vendor and Vendee†—Case at Bar.—On the 10th of October 1818, a sale was made of a tract of 370 acres of land in Augusta county, at $40 per acre, to be paid as follows, viz. $600 in hand (which was paid accordingly), $1200 on the 28th of December 1818 with interest from the day of sale, $1200, on the 28th of March 1819 with like interest, $750, on the 28th of March 1820, and the residue in sums of $750, payable at specified times. By the articles of agreement, the vendee was to give bonds and satisfactory security for his payments, and- the vendor bound himself to make the vendee a good 'and sufficient deed in fee simple, with general warranty, at the first Augusta court after the payment in 1819. The vendee paid the instalment which fell due on the 28th of December 1818, and the instalment which fell due in 1819 was paid, part before, and the residue on, the 9th of December in that year, so that the vendor became bound to make a deed for the land as early as the first Augusta court after the 9th of December 1819. No deed was made. The vendee notwithstanding paid the instalment which fell due on the 28th of March 1820. About the 10th of April of that year, the vendor died insolvent, and the vendee, soon after his death, made known his determination to make no farther payments until he should get a -title. On the 10th of September 1821, a suit in equity was brought by the administrators of the vendor against the vendee and the heirs of the vendor, to compel a specific execution of the contract; and no title having ever been obtained by the vendor, the complainants made defendants those in whom that title was outstanding. A considerable fall having taken place in the value of property, the vendee, by his answer sworn to in May 1825, resisted the prayer of the bill, on the ground that, under the circumstances of the case, equity required a rescission, and not an execution of the contract. At this time the default of the vendor’s heirs still continued, and it continued three years afterwards ; that is to say, it continued for more than eight years from the time when the vendor had bound himself to make the title. During this time the land had fallen in value more than 50 per cent, and the vendee had never surrendered possession.

Held, 1. That the long continued default of the vendor and his heirs, and the change of circumstances during its continuance, constitute a valid objection toa specific performance of the contract. 2. That the vendee should, on the one hand, release all his rights under the contract, deliver up the land, and account for its rents and profits during the time he held it; and, on the other hand, have the purchase money paid b^him returned, with interest from the times when the payments were made, and also have the value of any permanent improvements which he may have put upon the land set oft against the rents and profits, provided they do not exceed the amount of the said rents and profits. 3. That if, on stating an account between the parties on these princi*43pies, a balance should appear to be due from the vendee, he should be decreed to pay it; if in his favour, it should be decreed to him, and if there be no sufficient personal estate of the vendor to pay the same, the land should be subí ected to its payment. 4. That each party should pay his own costs, except as to taking- the accounts, the costs of which should be equally divided between the parties.

This was an appeal from a decree of the superior court of chancery formerly holden in the town of Staunton. The facts of the case, so far as they are material to the questions decided by the court of appeals, were stated by CABE)LB, P., at the time of delivering his opinion, to be as follows :

On the 10th day of October in the year 1818, Ralph A. Lofftus and Daniel Bryan entered into articles of agreement under their hands and seals, by which Lofftus sold to Bryan a tract of land containing 370 acres more or less, lying on Middle river in Augusta county, at 40 dollars per acre, to be paid as follows, viz. 600 dollars in hand, (which was paid accordingly); 1200 dollars on the 28th of December then next ensuing, with interest from the date of the contract; 1200 dollars on the 28th of March 1819, with interest as aforesaid; 750 dollars on the 28th of March 1820; 750 dollars in nine months thereafter; and the residue in equal annual instalments of 750 dollars from the date of the payment last mentioned, until the whole purchase money *should be paid; for which payments Bryan was to give bonds and satisfactory security : and Lofftus bound himself to make Bryan a good and sufficient deed in fee simple with general warranty for the land, at the first Augusta court after the payment in 1819. Bryan received possession immediately. He paid the instalment which fell due on the 28th of December 1818. On the 25th of March 1819, he paid 1200 dollars towards the instalment which was to become due on the 28th of that month ; and he paid the residue thereof on the 9th of December 1819. Lofftus therefore became bound to make a deed for the land, at least as early as the first Augusta court after the 9th of December 1819. No deed was made. Bryan notwithstanding paid to Lofftus the instalment which fell due on the 28th of March 1820. Lofftus died insolvent about the 10th of April of that year, without having made any conveyance of the land, leaving as his heirs six adult brothers and sisters, and two infant children of a deceased brother. Shortly after the death of Lofftus, Bryan made known his determination to make no farther payments until he should get a title to the land. On the 23d of June 1821, fourteen months after the death of Lofftus, a deed was prepared, purporting to be a deed from the six adult heirs of Lofftus, conveying the land to Bryan. This deed was acknowledged before justices of the peace, by some of the heirs in the year 1821, by one of them in the year 1822, and by another in the year 1823; but it was not acknowledged by Nathan Lofftus, another of the heirs, until the 20th of August 1828; nor was it ever acknowledged by John Lofftus, another of the heirs, or proved as to him, nor is his name signed to the deed. The infant heirs, of course, were not parties to it. It does not appear that this deed was ever delivered or offered to Bryan; nor was it delivered to the clerk of Augusta to be recorded, tin til the 25th of August 1828, the very day on which the decree in this cause was *pronounced. A deed from John Lofftus and wife to Bryan appears to have been executed on the 23d of August 1828.

Ralph A. Lofftus had purchased the land in controversy from Henderson and Robertson, who had previously conveyed the same to certain trustees to secure a debt due to Donaghe. The legal title to the land was in those trustees; and although Lofftus, in virtue of his contract with Henderson and Robertson, might be regarded in a court of equity as assignee of the equity of redemption in the land, still he had received no conveyance for that, any more than for the legal title. He therefore was never, at any time of his life, in a condition to comply with his obligation to Bryan, to make him “a good and sufficient deed” for the land; and it is apparent from the bill, and from the decree itself, that his heirs were not, even at the date of the decree, in a situation to comply with that stipulation in the contract of their ancestor.

This suit was brought, on the 10th of September 1821, by the administrators of I. o litas against Bryan and the heirs of Lofftus, to compel a specific execution of the contract between Lofftus and Bryan. But as it was apparent that the administrators and heirs of Lofftus combined were not in a situation to do that which ■ was indispensably necessary to compel a performance on the part of Bryan, Henderson and Robertson and the trustees and executor of Donaghe were made parties, in order to supply the defect, and to enable that to be done which Lofftus had bound himself to do as far back, at least, as the early part of the year 1820.

Bryan in his answer, sworn to in May 1825, and probably filed soon after, resisted the prayer of the bill, on the ground that, under the circumstances of the case, equity required a rescission, and not an execution of the contract.

*The default of the heirs of Lofftus continued at least three years longer, admitting (which was a point in controversy) that a good title could have been made at the time of the decree. Between the time when Bryan ought to have received a conveyance, and the time when he filed his answer, there was a considerable fall in the value of the land, and at the time of the decree it had fallen in value more than 50 per cent. Bryan still retained possession.

Such deeds being executed as in the opinion of the chancellor were proper, he made a decree compelling Bryan to an execution of the contract.

On his petition, an appeal was allowed.

The cause was elaborately argued in this *44court, by Grattan ánd Leigh, for the appellant, and C. Johnson, for the appellees.

*

One had been counsel for the appellant in the court below, and the other had been retained as his counsel in this court.

†

Sale of Land—Specific Performance. See on this subject, the principal1 case cited-in McCue v. Ralston, 9 Gratt. 436; Hendricks v. Gillespie, 25 Gratt. 195, 196, 202; Ford v. Euker, 86 Va. 79, 9 S. E. Rep. 500; Max Meadows, etc., Co. v. Brady, 92 Va. 84, 22 S. E. Rep. 845. See monographic note on “Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.

CABELL, P.

Every application for the specific execution of a contract is addressed to the sound discretion of the court, and the result of the application will always depend upon the particular circumstances of the case; for he who asks equity must do equity; and the prayer will always be denied, when to grant it would be inequitable towards those against whom the prayer is made. I would refer to the opinion of chief justice Marshall in Garnet &c. v. Macon & al. reported in 6 Call 308, and in 2 Brock. Rep. 185, for an able review of the cases, and a satisfactory exposition of the law upon this subject. In that case, the specific execution was refused under circumstances much weaker than those which exist in this case. The contract of sale in that case, as in this, was made in the year 1818. In that case, the vendor had the full legal and equitable title to the land, and the only objection on the part of the vendee was, that the land might be subject to an old debt due to one Campbell, and for which one of *the former owners of the land was surety. The suit was brought in December 1818, and was heard in the year 1825. The chief justice was very doubtful whether the debt to Campbell was in fact a charge upon the land ; yet as that claim was a cloud lowering over the title, which could not be dissipated but by the decree of a court of equity, and as, before such a decree was attainable, the value of the land had greatly changed, that circumstances created, in his opinion, a strong objection to a specific performance ; and on that ground, and that only, he dismissed the bill. In our case, the objection is much stronger. It is not a mere cloud lowering over the title, that is complained of, but the total absence of any sort of title in Lofftus or his heirs, for more than eight years from the time when he had bound himself to make the title; during which time the land had fallen in value more than 50 per cent.

It is said that Bryan ought to have made known, at an earlier period, his desire to rescind the contract. The fact is, that he seems to have been willing to proceed with the contract, up to the time of Lofftus’s death ; for he paid an additional instalment after the time when he ought to have received a conveyance, notwithstanding he must have seen that his contract was a disadvantageous one ; for it is well known that there was a considerable fall in the value of property between October 1818 and March 1820. It was, however, not so distinctly marked as it was afterwards. It was not for the heirs of Lofftus, who had always been in default, and who were never in a situation to comply with the con tract of their ancestor, to object to the conduct of Bryan in not demanding a rescission of the contract. Although Bryan might, at an earlier period, have objected to going on with the contract, it was not too late for him to do so in 1825 ; the default of Lofftus’s heirs still continuing. That default continued three years longer, even if it were admitted that with the aid of the court *they were then able to make a good title. And that default, even if we could overlook what had occurred before, would be sufficient to bar their claim to specific execution.

It is said that Bryan, to entitle himself to a rescission of the contract, ought to have surrendered possession of the land. If that be true in general, I cannot think it was so in this case. He had paid nearly 4000 dollars of the purchase money, for' the recovery of which he had no hope, Lofftus having died insolvent. I think he was therefore right in retaining the possession.

The view which I have thus taken of this case, renders it unnecessary to pronounce any opinion as to the sufficiency of the deeds made by the heirs of Lofftus, or to decide the question whether an unwilling vendee can be compelled, in any case, to accept a deed from the heirs of a vendor, who had contracted that he himself would make a deed with general warranty, but had failed to make it according to the contract, and then died, being still in default at the time of his death. For, conceding to the appellees all that they have contended for as to the sufficiency of those deeds ; nay, admitting that Lofftus himself had been' alive at the date of the decree, and had then been in a situation to make precisely such a deed as he had contracted to make, I should still be of opinion that his long continued default, and the change of circumstances which had occurred during its continuance, would be a sufficient objection to a specific performance of the contract.

I am therefore of opinion that the court of chancery erred in compelling Bryan to an execution of the contract. He should, however, be compelled to deliver up the land to the heirs of Lofftus, to account for its rents and profits during the time he held it, and to release all his rights under the contract with Lofftus and the deeds in the record contained ; but he is entitled to a return of the purchase money paid by him, with interest from *the time he paid it, and also to have the value of any permanent improvements which he may have put upon the land set off against the rents and profits, provided they do not exceed the amount of the said rents and profits. These matters should be referred to a commissioner, with directions to state an-account between the parties on these principles. If, on the return of the report, it should appear that a balance is due from Bryan, he should be decreed to pay it; if in his favour, it should be decreed to him, and if there be no sufficient personal estate of Lofftus to pay the same, the land should be subjected to its payment: each party to pay his own costs, except as to taking the accounts, the costs of which should be equally divided between the parties.

Both decrees are therefore to be reversed with costs, and the cause remanded, to be proceeded in to a final decree, according to the principles now declared.

*45The other judges concurring, a decree was entered in the following terms :

> “ The court is of opinion that the chancery-court erred in compelling the appellant to an execution of the contract with Ivofftus, in the proceedings contained. He however should be compelled to deliver up the land to the heirs of Hofftus and to account for its rents and profits during the time he held it, and to release all his rights under the contract with Hofftus and the deeds in the record contained ; but he is entitled to a return of the purchase money paid by him, with interest from the time he paid it, and also to have the value of any permanent improvements which he may have put upon the land set off against the rents and profits, provided they do not exceed the amount of the said rents and profits. These matters should be referred to a commissioner, with directions to state an account, between the parties on these principles. If, on the return of the report, it should appear that a balance is due from the appellant, *he should be decreed to pay it; if in his favour, it should be decreed to him, and if there be no sufficient personal estate of Hofftus to pay the same, the land should be subjected to its payment: each party to pay his own costs, except as to taking the accounts, the costs of which should be equally divided between the parties. Therefore, decree reversed with costs, and cause remanded to circuit court of Augusta, to be finally • proceeded in pursuant to the principles of the foregoing opinion and decree.”