#### *Clarke v. Hardgrove &c.

April Term, 1851.

Richmond.

(Absent Cabell, P.)

Sale of Land—Defect of Title—Case at Bar.—H sells land to C, and conveys to him with general warranty; and C assigns to H the bonds of S in payment of the purchase money. The title to a part of the land is afterwards discovered to be clearly defective. Held:

ist. Same—Same—Injunction,*—c may enjoin II from collecting so much of the bond of S as will compensate him for the land to which the title is defective.

2d. Same—Same—Compensation to Vendee. † o is entitled to compensation according to the relative value of the land to which a good title cannot be made.

3d. Same—Same—Action of Court.—H should be directed to perfect the title by a day specified by the Court: And if he failed to do so, a commissioner should be directed to ascertain the relative value of the part of the tract to which the title is defective.

This was a suit in equity in the Circuit court of Dinwiddle by Thomas E. Clarke against Thomas Hardgrove and others. In his bill he charged that he in September 1839, bought of Thomas Hardgrove of the city of Richmond a tract of land containing eleven hundred and seventy-six acres, lying in the county of Dinwiddie, at the price of 11,000 dollars; and that Hardgrove had conveyed the land to him by a deed with general warranty. That in the same year the plaintiff had sold a tract of land in Nottoway to Samuel Scott for 10,000 dollars, for which he had received Scott’s three bonds of 3333 dollars 33 cents, with good security; which bonds he assigned to Hard-grove in part payment of the land bought of him; and that the last of these bonds *164remained unpaid. That when he purchased and received the deed for the land, *'he had not the slightest suspicion that there was any defect in the title to any part of if. That he has been informed, and has no doubt of the fact, that neither Hardgrove or his vendor ever had any title to a part of the land containing about fifty-one acres. That this fifty-one acres was owned by P. Goodwin, who died about twenty years since, and who devised it to his two daughters, one of whom was married to Thomas Whitworth, and the other had married Daniel E. Allen, and died leaving an infant daughter. And that the legal title to this land was then in this infant and Mrs. Whitworth. That Hard-grove was probably in at least doubtful circumstances.

The plaintiff stated further, that this fifty-one acres of land were situated in the middle of his tract, and in front of his dwelling house, about one hundred and fifty yards from the door: And he stated other circumstances which enhanced its value; so that the whole of the bond of Scott which remained unpaid would be not more than sufficient to compensate the plaintiff for the loss of the land. And having made Hardgrove, Allen and his infant daughter, Whitworth and his wife, and Scott and his sureties, and others, parties defendants, he asked that the payment to Hardgrove of this last bond of Scott might be enjoined. That a commissioner might be directed to enquire and report as to the alleged defects of the title to said land; and if they existed the Court would require the title to be made good if possible; and if that was impossible, that full relief might be afforded him by decreeing payment to him of the amount of Scott’s last bond, and such other sum as should be sufficient to compensate him for the loss of the land. And he asked for general relief.

The injunction was granted according to the prayer of the bill: and the cause was so proceeded in that the bill was taken for confessed as to all the before mentioned parties; and one of the commissioners of the *Court was directed to examine and report as to the title to the fifty-one acres of land, and also as to the value of the land the title to which he should consider defective; embracing- in such valuation and report the inconveniences, loss of buildings and damages which might be sustained by the plaintiff if he should be deprived of the said land.

The commissioner reported that the title to the fifty-one acres was clearly defective; and he gave the location of it very much as it is described in the bill. Eor the injury which the plaintiff would sustain by the loss of this land he referred to the testimony of several witnesses whose examinations were returned with the report. These witnesses agreed in estimating the plaintiff’s damages by the loss of the fifty-one acres of land at 2S00 dollars.

After the commissioner had returned his report the defendant Hardgrove filed his answer. He objected that the case stated in the bill was not proper for the jurisdiction of a Court of equity; and asked that he might have the benefit of this objection as if it had been formally pleaded. He said that he had purchased the land sold by him to the plaintiff, through the agency of his brother-in-law R. C. Pollard; and knew nothing himself of either the land or the title to it; but relied upon said Pollard who lived near to the land, and who informed him that the title was good. That changing his purpose to remove to the country, he sold the land again through the agency of Pollard. That never whilst he held the land, and indeed not until very lately,, had he known or heard of any defect in the title to the fifty-one acres of land mentioned in the bill; but if there was any defect in the title he was willing to' do what might, be deemed by the Court right in the matter: He was ready and willing to buy the land if it could be bought, and convey it to the complainant; *and if it was so situated that it could not be sold, he was willing to pay a full equivalent to the complainant for it; but he objected strongly that the claim of the complainant as to the amount of the damages sustained by him, was exorbitant and most unreasonable.

It appeared from the testimony of Thomas Whitworth, one of the defendants, that the fifty-one acres of land mentioned in the bill, had been devised by P. Goodwin to his two daughters, of whom Mrs. Whitworth was one; and had been sold *by*the defendant Allen to Edward O. Branch the vendor of Hardgrove, for 600 dollars. That the sale was sanctioned by Whitworth who had joined in a deed with Allen conveying their interest in the land. That since this controversy commenced^ he had executed and delivered to Mr. Harctgrove’s counsel a legal title to one moiety of the fifty-one acres; and that the legal title to the other moiety was in the infant daughter of Allen.

The plaintiff in 1844 filed an amended bill claiming compensation for an injury which he alleged was done to his land by the Upper Appomattox company under a contract between that company and Hardgrove, entered into whilst Hardgrove was the owner of the land. But it is unnecessary to state the questions arising on that amended bill. The cause came on to be finally heard in September 1845, when the Court dismissed the bill and amended bill -with costs: Whereupon Clarke applied to one of the Judges of this Court for an appeal, which was allowed. ^

Spooner, for the appellant.

The defect of title in this case was no ordinary one. It was not a mere cloud at a distance, which would in all probability vanish into thin air; it was not only palpable, but alarming to the appellant. When this suit was brought, the legal title to the fifty-one acres, by far the most valuable and important part *of the tract, was in Mrs. Whitworth, wife of *165Thomas Whitworth, and the infant daughter of D. E- Allen. Could such a defect of title be of but little importance to the appellant? It was not a distant one, of long standing, which would never probably be noticed, nor any claim be ever set up. The facts, which have happened since the suit was brought, although not a part of the record, may be stated by way of argument. Mrs. Whit-worth, whose title Allen attempted to sell and not her husband’s, has since died, leaving a child or children; Whitworth himself has become insolvent and taken the oath of an insolvent debtor; D. E. Allen has died utterly insolvent, and was so some time before his death; of what use would their warranty deeds be in such a case? It is said by one of the Judges of this Court, in Jackson v. Eigon, 3 Eeigh 161, that “it is the settled rule of this Court, not to compel a vendee to pay the purchase money until he gets a title.” It is submitted to the Court, that the situation of the persons in whom was the legal title to the fifty-one acres, was such that the appellant might well consider a suit threatened. But if not, he has done what th^ Court, in Ralston v. Miller, 3 Rand. 44, stated as necessary to be done in cases like this; proved the title to be bad. Can there be the least question, that if a suit had been depending against Clarke for the purchase money of the land in question, that a Court of equity could legally have arrested the payment, and compelled Hardgrove to make good in some way the title, or to have secured Clarke against future loss or danger?

The question whether the transfer of the bonds in this case was equivalent to cash as a payment in all respects, may require some notice.

The counsel contends, that while the bonds transferred were uncollected, they should be considered in equity in no other light than if the bonds were due by the vendee himself, or than orders given by Clarke *on the obligors of the bonds and accepted by them. In both cases the vendor would have a clear legal right to go back to the vendee for payment, if the obligors or persons accepting orders should fail to pay. It is no where intimated in this cause, that if the obligors in the bonds assigned and transferred to Hard-grove, had all proved insolvent, that Hard-grove was deprived of his legal right to go back and to look to Clarke to pay the amounts. They were not transferred and assigned to Hardgrove, and received by him as cash, with an agreement that he should have no recourse against Clarke. The transfer then was but the transfer of evidences of debt, to become a payment if collected; if not, he had recourse back on Clarke. The transfer was a payment in common parlance, and was so used in the bill, but not equivalent to an actual payment in cash, or a receipt of the bonds, without recourse to Clarke. The assignment and receipt of the bonds was not a Novation. “The old debt was not extinguished by the transfer.” “It was not a new engagement with Hardgrove in consideration of being liberated from the former. ’ ’ “It was not the accepting of the obligors in the bonds as the sole debtors, and thereby discharging Clarke.” The obligors in the bonds were not expromissors. They made no engagement with Hardgrove to stand in the shoes of Clarke, and in fact no engagement at all. Pothier, vol. 2, p. 58, 59, 60, edi. of 1802, chap. 2 of part 3, art. 1.

Neither was there a delegation of the debt in question. Pothier, vol. 2, p. 71, chap. 2, art. 6.

Bouvier’s Haw Dictionary, vol. 1, p. 71, chap. 436, vol. 2, 231, and references. Bullitt v. Songster, 3 Munf. 54. In this case the Court decreed, that a bond due by other persons than the vendee, and assigned by him to the vendor, should be delivered back by him to the vendee.

*May and Wallace, for the appellee.

We hold that the plaintiff never having been evicted, has no right of action. There has been no breach of the covenant of warranty. “The covenant of warranty and the covenant for quiet enjoyment are prospective, and an eviction is necessary to constitute a breach of them.” Kent’s Com. part 6, lecture 66, p. 459. This is the general doctrine admitted by all the writers and approved by all the Courts to whose decisions we have had access; in England, in New York, Greenby v. Wilcocks, 2 John. R. 1; in Connecticut, Booth v. Stark, 1 Conn. R. 244; Mitchell v. Warner, 5 Conn. R. 497; and in Massachusetts, Marston v. Hobbs, 2 Mass. R. 439; Bickford v. Page, 2 Mass. R. 455; Gore v. Brazier, 3 Mass. R. 523.

Chancellor Kent (Kent’s Com. p. 464) says, “If the grantor had notice to remove the incumbrance and refused, equity would undoubtedly compel him to raise it, and decree a general performance of a covenant of indemnity.” In this case, so far from waiting to give notice to Hardgrove, and giving him an opportunity to remove the difficulty, Clarke goes into a Court of equity without ever even informing Hard-grove that there was a defect in the title. Had he done so, Hardgrove would have willingly procured the title to be made good, and if required, have given a bond of indemnity till it could be done. The truth is, that he did get the title perfected years ago ; though as to the half of the 51 acres which Allen’s daughter would be entitled to at Allen’s death, there is no evidence in this record that her right was quieted, because it was not done till after the decree dismissing the bill was rendered; but as to the part to which Whitworth and wife were entitled, the claim was quieted in 1844.

We submit that the cases referred to by the counsel for the appellant, are not in conflict with these well understood principles. Eirst, the case of Boullitt v. Songster, *3 Munf. 54, differs entirely from this. In that case, there was a special agreement; and the case was decided upon that special contract; not upon a mere *166warranty of title, such as was given by Hardgrove to Clarke.

Second, the case of Ralston v. Miller, 3 Rand. 44, is equally inapplicable. The principle decided in that case was, that Courts of equitjr will not interfere between vendor and vendee to prevent the collection by the vendor of the purchase money, unless, &c. The decision was against an injunction in that case. It is true there is an obiter dictum in the opinion of the Court, to the effect that this Court has gone far beyond any thing which has been sanctioned by the Courts of England or elsewhere, . in enjoining the payment of the purchase money after the purchaser has taken possession under a conveyance, especially with general warranty; and that it would interfere in a case where the purchaser could shew that the title was clearly defective. But is there any intimation that the Court would interfere to prevent the collection of a security against a stranger, received as payment by the vendor, as in this case? The Court meant to say, that it would interfere where the vendor was enforcing the payment of the purchase money from the vendee when there was a defective title. In this case the principle contended for would justify the Court in forcing the vendor to refund what he had already received.'

But would the Court interfere even in that case unless the vendee or grantee had given reasonable notice to the vendor of the defect in the title, required him to remove it, and been refused either.to remove it or to give satisfactory indemnity.

In every aspect in which we can view the case, we think the law is in favour of sustaining the decree of the Court below.

*

Sale of Land—Defect of Title—Injunction against the Collection of Purchase floney.—In Virginia, equity will enjoin the collection of the purchase money of land on the ground of *defect of title,*after vendee has taken possession, after conveyance from vendor with general warranty, if the title is questioned *by a suit either prosecuted or*threatened, *or if the purchaser can show clearly that the title is defective.*Koger v. Kane, 5 Leigh 606. See also, Ralston v. Miller, 3 Rand. 4415 Am. Dec. 704. Bor this proposition, see the principal case cited in Wamsley v. Stalnaker, 24 W. Va. 223; Heavner v. Morgan, 41 W. Va. 442, 23 S. 10. Rep. 879; Heavner v. Morgan, 30 W. Va. 43, 4 S. JO. Rep. 411; Peers v. Barnett, 12 Gratt. 416. Bor further information on this subject, see a somewhat extended discussion in Wamsley v. Stalnaker, 24 W. Va. 220*et sea.-,*monographic *note*on “Injunctions'’ appended to Glaytor v. Anthony, 15 Gratt. 518.

Where a vendor has bound himself to convey land with covenant of general warranty, he is responsible for defect of title to any part of the land so sold; and a court of equity will not compel the payment of the whole of the purchase money until the defect is removed, *although there has been a conveyance of the land by the vendor.*Worthington v. Staunton, 16 W. Va. 242, citing the principal case, Koger v. Kane, 5 Leigh 606, and Renick v. Renick, 5 W. Va. 285 See also, principal case cited for this proposition in .Johnston v. Jarret, 14 W. Va. 230.

†

Same—Same—Compensation to Vendee.—To the point, that, where land is conveyed with general warranty of title, and it is found that the title to part of it is defective, the vendee is entitled to compensation for that part, according to its relative value to the whole tract, see principal case cited in Butcher v. Peterson. 26 W. Va. 454; Heavner v. Morgan, 30 W. Va. 343, 4 S. E. Rep. 411; Renick v. Renick, 5 W. Va. 291; Heavner v. Morgan, 41 W. Va. 445, 23 S. E. Rep. 880.

*ALLEN, J.,

delivered the opinion' of the Court.

The Court is of opinion, that as the appellant has clearly shewn .that at the institution of his suit the title to a portion of the land conveyed to him was defective, he had a right, notwithstanding a deed with general warranty had been made, to enjoin the collection of the purchase money; Koger v. Kane, 5 Leigh 606, and cases there cited; and that such right is not impaired though the vendor is seeking to collect the purchase money, not directly from the purchaser, but from a third person on a collateral security assigned to him by the purchaser: It not being incumbent upon the purchaser, in case of such clear defect of title, to risk the hazard of the vendor’s solvency.

The Court is therefore of opinion, that said Court erred in dismissing the bill and amended bill of the plaintiff.

Decree reversed with costs, injunction reinstated, and 'cause remanded with instructions to enter a decree that unless the appellee shall within a reasonable time to be prescribed by the Court, perfect the title to so much of the land conveyed as is shewn to be defective, that an account be directed to ascertain the relative value of the part, or the interest therein, to which the appellee cannot make a good title, and for further proceedings in order to a final'jdecree.