#### *Oliver’s Ex’or v. Hallam’s Adm’r.

December, 1844,

Richmond.

(Absent Brooke and Stanajrd,* J.)

Vendor or Vendee—Unpaid Purchase Money—Interest— Case at Bar.—A vendee put into possession of the land purchased, bound to pay interest on the balance of purchase money unpaid, though, by the contract, the vendor hinds himself to make said vendee a good and lawful title to the land before he calls upon him for the unpaidpurchase money, or though the vendee’s contract is to pay the balance of purchase money when a good title to the property is made to him.

Mana Page the elder, by his will admitted to probat in 1781, directed his lots in Hanover town in the county of Hanover to be sold by his executor, and the proceeds thereof to be applied to the payment of his debts. These lots were sold by his executor Mann Page the younger, and two of the lots, numbered 39 and 40, came through several successive purchasers to the possession of Edward Hallam. The purchase money for these two lots was paid by the first purchaser to the executor Mann Page the younger, but he never executed any conveyance for them, in his lifetime. In 1803 Hallam sold these lots to John Wade without making him any conveyance, and the only evidence of the terms of the contract is the following paper:

“Richmond, Nov’r 15, 1803.

“Then received of John Wade eighty-four pounds ten shillings in part payment for two lots in Hanover town, known by the numbers 39 and 40; which I bind myself, my heirs, &c. to make the said Wade a good and lawful title to before I call on him for any further payment. And if I should not have the title made before the 1st of January 1804, I will have it made as quick as possible after the above date.”

“Edward Hallam.”

*Wade was put into possession of the lots, which were then improved, and on the 15th of January 1805, sold them to Benjamin Oliver for the price of two hundred pounds, to be paid as follows: “The said Wade agrees to take an order on Bathurst Jones for seventy-five pounds, and to settle nine pounds ten shillings in the store of said Oliver; the balance that may be then due, after deducting the two sums above mentioned, the said Oliver obliges himself to pay to the said Wade whenever he may have a good and lawful right made to the said property.”

Oliver was put into possession of the lots and retained possession of them during his *122life, and they have continued in possession of his devisee and her heirs, ever since, except that a stranger claiming no title thereto has, as is alleged by Oliver’s executor, entered upon and holds them.

In 1808, Hallam brought a suit in the chancery court at Richmond, which was afterwards transferred to the chancery court at Fredericksburg, against Oliver, Wade’s representative, and the administrator de bonis *non with the will*annexed of *Mann*Page the elder, for the purpose of having the title to these lots perfected to Oliver, and obtaining payment of the balance of the purchase money yet due to him. Page’s administrator answered, admitting that the original purchase money was paid; and expressing his willingness that a conveyance should be decreed. Wade’s representative answered, stating that Wade had purchased the lots from Hallam for two hundred pounds, of which eighty-four pounds ten shillings were paid, and the balance was due, at the time of the sale to Oliver, and that Wade had sold to Oliver on the same terms on which he had purchased, and had received from him,.the amount he had paid to Hallam; but insisting that the balance of *the*purchase *money due*did *not*bear interest. Oliver also answered, admitting*his purchase, and that a part of the purchase money was still due, which he had always been ready to pay upon getting a good title; but objecting to the payment of interest.

An account of the rents and profits of the lots having been directed to be taken, the commissioner made his report in 1833, by which, it appeared that they amounted to much more than the interest upon the balance of the purchase money unpaid.

The cause was delayed in the chancery court for many years. In the mean time Hallam died and the suit was revived in the name of Henry King, his administrator, and Oliver died having devised this property to Mrs. Oliver. She also died, so that it descended to her two infant daughters as her heirs. The suit was finally revived against Benjamin Brand as the executor of Oliver, and against William R. Nelson as the administrator of Mrs. Oliver, and her two infant children, and having been removed to the circuit superior court for the county of Spottsylvania; came on to be heard in June 1833; when the court made a decree directing the administrator de bonis non with the will annexed of Mann Page the elder, to convey the two lots to the infant defendants; and ascertaining the balance of principal of the purchase money yet due to be 385 dollars, he decreed that Wade’s representative, out of the assets of his intestate in his hands, should pay to the plaintiff the amount of the interest on that sum, at six per cent, per annum, from the time of Wade’s purchase from Hallam to the time of his sale to Oliver, and that Oliver’s executor, out of the assets of his testator in his hands, should pay to the same plaintiff the amount of the purchase money unpaid, with like interest thereon from the date of Oliver’s purchase, till paid. From this decree Oliver’s executor applied for, and obtained an appeal to this court.

*C. & G. N. Johnson for the appellant.

The contracts between Hallam and Wade, and Wade and Oliver, shew that it was not the intention of either vendors or purchasers that the balance of the purchase money should become due until the title was made. Does it then bear interest? The general rule is, that interest does not run, until the debt becomes due. Where there is a breach of contract, interest may be chargeable, but in this case the contract is not broken. It is true that, in Sugden on Vendors, ch. 10, <j 1, p. 1, and in some of the cases in this court, it is stated, that a purchaser in possession shall pay interest on the purchase money; but this is where the contract is implied, and the court will of course imply such a contract as under the circumstances will be equitable. But here the contract is express; and the delay in the payment enters into the question of price; and if, after the parties have paid the consideration for delay in the enhanced price of the property, the court shall compel them to pay interest upon the purchase money, the interest will be twice paid, with interest upon interest.

In the cases in which a purchaser has been held to pay interest, there was either no contract, or the purchase money had become due; but in this case the money did not become due until the title was made; until then it was not the money of Hallam, and he could not therefore be entitled to interest upon it.

In this case, too, the purchaser cannot waive his contract on account of the defect of title, but must take the title whenever it is offered to him; and this circumstance will be found to take this case out of the influence of almost all the cases cited.

Harrison for the appellee. The purchasers in this case took immediate possession of the property sold to them, the profits of which were much more than the interest on the purchase money. In such case, it is the *uniform rule of this court, that the vendee enjoying the profits shall pay interest. Powell v. Martyn, 8 Ves. 146; Fludyer v. Cocker, 12 Id. 25; Brockenbrough v. Blythe, 3 Leigh 619; Hundley v. Hyons, 5 Munf. 342; Edwards v. Van Bibber, 1 Leigh 183; Selden v. James, 6 Rand. 465; Hepburn v. Dunlop, 1 Wheat. 179; Shaller v. Brand, 6 Binn. 435; Boyle v. Rowand, 3 Desaus. 555; Ramsay v. Brailsford, 2 Id. 582.

*

He bad been counsel in tbe cause.

By the court.

Affirm the decree.