#### *Morriss v. Coleman &c.

January, 1843,

Richmond.

(Absent Cabell, P.)

Saie of Land—Equity Jurisdiction—Rescission—Quieting Tltle†—Decree between Codefendants ‡ — The owner of a tract of land conveys the same in trust to secure a debt, and afterwards, in May 1819, sells 100 acres of the tract to a party having notice *321of the incumbrance, who receives from the vendor a deed and the possession of the land, pays him a part of the purchase money, and engages to pay the residue when the vendor shall make him a good title : no time being limited for perfecting the title, and both parties believing that several years will elapse before it is perfected. The whole tract is sold under the trust deed, and conveyed by the trustee to the purchaser ; who. in 1820, brings suit in chancery against the original owner, his vendee of the 100 acres, and a third person, by whom a lien on the land is claimed under a trust deed prior in date to that under which the plaintiff purchased : the obj ect of the suit being to have the plaintiff’s title quieted, and possession of the land delivered to him. The vendee of the 100 acres, having failed to answer the bill though duly served with process, is brought into court in June 1832 to answer interrogatories, and the plaintiff thereupon offering him the election, to take a conveyance from the plaintiff of his title to the 100 acres, and pay him the residue of the purchase money stipulated with the vendor, or else to surrender his own title under the vendor’s deed, he answers, declining to have his contract with the vendor carried into execution, and reclaiming the purchase money he has paid him. The land has then become greatly depreciated in value. In 1833 it is decided that the first deed of trust has been satisfied, and that the defendant claiming under it has no lien. In 1834 the court not only decrees that the plaintiff be quieted in his title and possession against all the defendants, but. holding that the yendee of the 100 acres has been unreasonably delayed in his title, and that the tender by the plaintiff was too late, proceeds to decree that the contract and deed for the 100 acres be annulled, and that the vendor repay to the vendee the purchase money he has received. The vendor appeals from the decree, and in the court of appeals objects, l. That equity has no jurisdiction of the plaintiff's case. 2. That the yendee ought to have been required to take the title offered by the plaintiff. 3. That the case is not one in which a decree can properly be rendered between codefendants. But the court of appeals affirms the decree.

*By deed dated the 12th of June 1817, Jesse Jones sold and conveyed to Robert Morriss a tract of land in Campbell county containing 600 acres. Morriss, on the same day, executed a deed conveying the land to Micajah Moorman and Howard Bennett, in trust, for securing to Jones the payment of the purchase money, amounting to 4905 dollars 75 cents, for which Morriss had given his three bonds payable respectively on the first of January 1819, 1820 and 1821.

Both deeds were duly recorded in Campbell county court. In October 1818, it was agreed between Morriss and Jones, that Jones should take from Morriss a conveyance of another tract of land in Campbell county, containing about 780 acres, in satisfaction of the purchase money due for the 600 acre tract. Jones was put in immediate possession of the 780 acre tract; and on the 18th of November 1818, he surrendered Morriss’s three bonds, endorsing thereon a receipt in full, and taking Morriss’s written promise to make him a deed for the land; which was accordingly executed on the 8th of January 1819, and recorded in the county court of Campbell on the 8th day of February 1819. But no release of the trust deed to Moorman and Bennett was executed.

After the contract between Morriss and Jones respecting the tract of 780 acres was entered into, but before the land was conveyed to Jones, namely, on the 12th of November 1818, Morriss conveyed the same land, with other property, to Christopher Winfree in trust for the purpose of securing a large debt to D. W. & C. Warwick. This deed was duly recorded in the corporation court of Lynchburg on the 4th of March 1819; and being produced to the county court of Campbell on the 12th of April 1819, with the certificate of the registry in the corporation court endorsed upon it, was thereupon ordered to be recorded in the county court. When Jones received his conveyance from Morriss, he had, it seems, no notice of the trust deed to Winfree for the benefit of the Warwicks.

*On the 12th of March 1819, Morriss conveyed the tract of 600 acres to Samuel Garland and John H. Smith, trustees, for the purpose of indemnifying Robert L. Coleman and Nicholas Harrison, who had endorsed his notes to a large amount. When Coleman and Harrison took this conveyance from Morriss, they knew that the trust deed conveying the same tract to Moorman and Bennett, for securing the payment of the purchase money to Jones, had never been released; but they were also apprized of the contract between Morriss and Jones, by which the latter had surrendered Morriss’s bonds, and accepted the conveyance of the 780 acre tract in payment.

Shortly after the execution of the trust deed to Garland and Smith, John Dinwiddie, with full notice of that deed, contracted with Morriss for the purchase of 100 acres parcel of the 600 acre tract, at the price of 2000 dollars, 500 dollars to be paid in cash, and the residue (for which he executed his three bonds to Morriss) to be paid when Morriss should make him a good title to the land. No particular time was limited for perfecting the title; and both parties believed that several years would elapse before it would be perfected. Meanwhile Dinwiddie was to have possession of the land, and his bonds were to remain in the custody of J. N. Cardozo. Dinwiddie accordingly paid Morriss 500 dollars in part of the purchase money; his bonds for the residue were delivered to Cardozo; and he received from Morriss the possession of the land, and a conveyance of the same, bearing date the 1st of May 1819.

Coleman and Harrison, having been compelled to take up notes endorsed by them for Morriss to the amount of 6500 dollars, required the trustees Garland and Smith to make sale of the 600 acre tract, in pursuance of the deed of the 12th March 1819. The said trustees accordingly sold the land at public auction, on the 23d of July 1819. *322Coleman and Harrison became the purchasers, *for a sum less than the amount which Morriss owed them; and the land was conveyed to them by the trustees, by deed dated the 24th of July 1819. Before the property was set up to be sold, Jones forbade the sale, and made known to Coleman and Harrison and the trustees, that he claimed a lien on the land for the purchase money which would be due him from Morriss, in case his title to the tract of 780 acres, conveyed to him by Morriss as aforesaid, should fail.

Morriss having also made default in the payment of the debt to the Warwicks, secured by the trust deed to Winfree, the tract of 780 acres was sold by Winfree in conformity with the provisions of that deed, and purchased bjr Daniel Warwick, (one of the firm of D. W. and C. Warwick,) to whom Winfree accordingly conveyed the same, by deed dated the 4th of September 1820. At the time of this sale, Jones was in actual possession of the land, claiming it under his purchase from Morriss. Before the property was sold, he made his claim known both to D. Warwick and the trustee, and publicly forbade the sale.

In May 1820, Coleman and Harrison filed their bill in the superior court of chancery for the Lynchburg district, against Morriss, Jones and Dinwiddie, together with Moor-man and Bennett the trustees in Morriss’s. deed for the benefit of Jones; setting forth their endorsements for Morriss; his execution of the trust deed to Garland and Smith for their indemnitj'; their payment of the endorsed notes; the sale under the trust deed, and their purchase of the land; Morriss’s sale of 100 acres to Dinwiddie; and Jones’s claim of a lien on the whole tract for purchase mone3r. Dinwiddie, it was alleged, was in the possession of the whole 600 acres; of 100 as purchaser from Morriss, and of the residue as Morriss’s tenant at will.. The prayer of the bill was, that the plaintiffs might be quieted in their title to the land, *and have the possession thereof delivered to them; and for general relief.

Jones answered, insisting on his lien for purchase money under the trust deed executed to Moorman and Bennett, the release of wh4ch, he said, it would be contrary to equity to exact from him, unless he were quieted and made secure in his title to the tract of 780 acres, against the claim set up thereto by D. W. and C. Warwick; especially as Morriss was notoriously insolvent.

Morriss answered, admitting all the allegations of the bill, and assenting to the relief-prayed thereby.

Process was duly served on Dinwiddie; but he long failed to answer the bill. The suit remained pending in the superior court of chancery until 1831, when it was duly transferred to the circuit superior court of law and chance^ for the town of Lynch-burg. In June 1832, on the motion of the plaintiffs, the court ordered that Dinwiddie should be brought in by a special messenger, to answer interrogatories. He was brought in accordingly on the 14th of June 1832; when the plaintiffs propounded to him the interrogatories following : 1. Whether, under the conveyance made to him by Morriss, he claimed title to the 100 acres of land therein mentioned? 2. Whether he would elect to have his contract with Morriss carried into execution, by a surrender of the plaintiffs’ title to him, he accounting to them, as the assignees of Morriss, for the balance of the purchase money with interest ; or. to surrender his conve3yance, and release his title under the same, accounting with the plaintiffs for the reasonable rents and profits of the land from the date of their purchase? To these interrogatories Dinwiddie answered, that he claimed no title to the 100 acres by virtue of Morriss’s conveyance; and that he was not willing to have his contract with Morriss carried into execution at this late day, when the land had become greatly depreciated in value. By the leave of the court, he at the same time put *in an answer to the bill; wherein he again declined the execution of his contract with Morriss, and claimed that the 500 dollars he had paid to Morriss should be refunded to him with interest. He also admitted that when he purchased the 100 acres, he was in possession of the whole tract, under a lease from Morriss for three years; and that he was still in possession of the whole at the time this suit was commenced; but he alleged that he then held the possession as tenant to the plaintiffs, the land having been leased to him from year to 3rear, for several years, by Coleman; to whom he averred that he had paid the whole of the rents.

The long pendency of Coleman and Harrison’s suit was owing to a cross suit instituted by Jones. His bill was filed in October 1820, against Coleman and Harrison, Morriss, D. W. and C. Warwick, Winfree, and Moorman and Bennett, praying to be quieted in his title to the tract of 780 acres, and his possession thereof, as against the Warwicks; or, in case their title should be held superior to his, then that his lien on the tract of 600 acres, for the purchase mone3r due him from Morriss, might be enforced, and the land sold to satisfy the same according to the provisions of Morriss’s deed to Moorman and Bennett. Hereupon a controversy arose between Jones and the Warwicks, which was long protracted. Jones dying', the suit of Coleman and Harrison was revived against his administrator and heir, Thomas Jones; and the cross suit was revived in the name of the same party. In October 1825, an amended bill was filed by Thomas Jones, charging that Morriss’s deed to Winfree for the benefit of the Warwicks was never recorded according to the laws of the land, so that the same was void as to creditors and subsequent purchasers without notice. Thomas Jones having also died pending the controversy, the cross suit was revived in the names of his devisees, and the original suit was revived against them.

*323*The cross suit was finally heard and determined on the 8th of August 1833. The court held that the deed of trust from Morriss to Winfree for the benefit of the Warwicks, never having been recorded pursuant to law in the county court of Campbell, was void as against Jesse Jones and those claiming under him; and therefore decreed that Winfree and the Warwicks, for the purpose of quieting the plaintiffs (the devisees of Thomas Jones) in their title to the tract of 780 acres in the proceedings mentioned, should, by a proper deed, release to the said plaintiffs all the right, title, interest and claim of them the said Win-free and Warwicks in and to the said tract: and that the defendant Morriss should pay the plaintiffs their costs of suit.

After the determination of the cross suit, namely, on the 4th of January 1834, the deposition of Robert L. Coleman, one of the plaintiffs in the original suit, was taken on behalf of Morriss, to be read as evidence between Morriss and his codefendant Dinwiddie. Coleman deposed, that shortly after the execution of the trust deed to Garland and Smith, Morriss requested Harrison and the deponent to let Dinwiddie have the land which he Morriss had sold him: that they consented to do so, and proposed to Dinwiddie to complete his title as far as they could, upon his paying them 1500 dollars, the amount of his bonds to Morriss for the purchase money ; which Dinwiddie refused to do: that there was a very great decline in the price of lands after Din widdie’s purchase; and that deponent was always willing and desirous to take the 1500 dollars, the amount of Dinwiddle’s bonds, for the land, and never could get it.—Dinwiddie excepted to this deposition, on the ground that the deponent was a party directly interested in the result of the suit.

The original suit of Coleman and Harrison came oil to be heard the 29th of January 1834; when the court decreed, that as it appeared the representatives of *Jones had been quieted in their title to the tract of 780 acres, therefore the plaintiffs should be forever quieted in their title to the tract of 600 acres, against the defendants and all claiming under them; and that the defendant Howard Bennett (whose cotrustee Moorman was now dead) should release to the plaintiffs, who admitted themselves to be in possession of the land, all the right and title to the same, which was conveyed by Morriss’s deed to the said Moorman and Bennett. “And the court deeming it unreasonable that the defendant John Dinwiddie should have been so long delayed in his title to the 100 acres conveyed to him by Robert Morriss by deed of bargain and sale of the 1st day of May 1819; and that the plaintiffs were too late in tendering him a title ; and he having elected to abandon said contract; doth adjudge, order and decree that the contract and deed last aforesaid be set aside as null and void.” The court then proceeded to direct an account of the rents and profits of the land while it was held by Dinwiddie, either under the contract aforesaid or as tenant, and of all payments made by him to Morriss on account of his said purchase.

After the last mentioned decree was rendered, the deposition of J. N. Cardozo was filed in the cause. This -witness was examined on behalf of Morriss. Besides proving the terms of the contract between Morriss and Dinwiddie, and the understanding of those parties at the lime, as detailed in a former part of this report, the deposition contained the following statement: “This deponent thinks that Dinwiddie considered the use and occupancy of the land as more than equal to the interest of the 500 dollars,” (the cash payment) “this being tobacco land, and that article being in demand, and lands of this quality scarce.” Dinwiddie’s bonds, which (as already mentioned) were deposited in the custody of deponent, were kept by him 3 or 4, perhaps 5 years; and the deponent being then about to remove x'from Lynchburg, the bonds were, with the consent and in the presence of both Morriss and Dinwiddie, either destroyed, or placed in the hands of some other person ; deponent could not remember which.

On the 31st of January 1835, the cause was further heard “upon the decretal order of January 1834, the deposition of J. N. Cardozo, and the agreement .of the counsel of the defendants Morriss and Dinwiddie of the rent at 150 dollars:” On consideration whereof, the court, “being of opinion that the deposition of Cardozo proves that the rent of the land was considered and estimated to be equal and more than equal to the interest of the money paid in hand, and from which it fairly results that the money was to be repaid by the defendant Morriss to Dinwiddie in the event of the former failing to make the latter a good and sufficient title to the 100 acres of land in the proceedings mentioned,”—decreed that Morriss pay to Dinwiddie 500 dollars with interest from the 14th of June 1832 until paid, subject to an offset of 150 dollars, the amount of the rent as agreed upon by the parties, to be credited as of that day.

Morriss applied to a judge of this court for appeal from the decrees of the 29th January 1834 and the 31st January 1835; which was allowed. In his petition, he assigned the following grounds of objection to the said decrees:

1. That Dinwiddie, having received a conveyance from Morriss and the possession of the land, and never having been evicted by any legal process or even threatened with eviction, could not surrender his title at his pleasure to Coleman and Harrison, and hold Morriss responsible for the purchase money.

2. That Dinwiddie having purchased with the knowledge of the' previous conveyance to Garland and Smith, and with the understanding that Morriss was to procure from the parties interested in that conveyanee a ratification *of the contract, and Coleman and Harrison having proposed soon after their purchase to convey *324the land to him, which he refused, the contract is obligatory upon Dinwiddie, and he cannot be released from it by Coleman and Harrison at the expense of Morriss.

3. That as there was a conveyance by Morriss to Dinwiddie and possession given, which he has never been required to surrender until the decision of this cause in January 1834, as no time was limited in which Morriss was to procure the conveyance for the purpose of assuring Dinwiddie’s title, and as the delay which has occurred may be mainly attributable to his neglect in filing his answer, the offer of Coleman and Harrison in 1832 was not too late to bind him, so as to release Morriss.

4. That a chancery court is not the tribunal to determine between parties both of whom claim a legal title to the property. Stuart’s heirs v. Coalter, 4 Rand. 74; Wisely v. Findlay, 3 Rand. 361.

5. That this is not a case in which the court may decree between codefendants. Templeman v. Fauntleroy, 3 Rand. 434..

Grattan argued the cause for the appellant; there was no counsel for the appellees.

†

Equity Jurisdiction—Quieting Title to Land.—The principal case is cited in Moore v. Harper, 27 W. Va. 368.

‡

Same—Decree between Codefendants.—See *foot-note*to Allen v. Morgan, 8 Gratt. 60, and *foot-note*to Mundy v. Vawter, 3 Gratt. 519.

PER CURIAM.

Decrees affirmed.