#### *Stuart’s Ex’ors v. Abbott *&*al.

July Term, 1852,

Lewisburg.

(Absent Daniel, J.*)

1. Sale of Land — Retention of Title† — Case at Bat. — A vendor retaining tile title retains a lien on the land for the purchase money In the hands of a second purchaser.

2. Executors and Administrators — Release of Lien‡ Case at Bar. — The vendee being insolvent, a contract between one of the executors of the vendor and the second purchaser, which is doubtful In its import, will not be construed into an agreement to release the lien upon the land.

3. Equity Practice — Release of Lien by Executor of Vendor — Effect.—If one of the executors did contract to release the lien, it being the only security for the debt, it would not be enforced in a court of equity against the other executors.

This was a suit by the executors of Archibald Stuart deceased, against St. Clair Abbott and William Brown, to subject a tract of land in the possession of Brown for a balance of purchase money due from Abbott to Stuart’s executors. In June 1823, Archibald Stuart sold to Abbott a tract of land then in the county of Monroe, but now in the county of Mercer, for 300 dollars, retaining the title. In 1826 Abbott made payments amounting to about 212 dollars 85 cents, and in 1829 he paid 6 dollars. In 1831 he sold the land to William Brown for 300 dollars, who paid him 210 dollars of the purchase money. In 1833 Brown paid to Gerard B. Stuart, one of the executors, 50 dollars, when Stuart gave to him the following paper:

“Received of William Brown 50 dollars, being part of a balance due on a bond executed by St. Clair Abbott to Archibald Stuart for 100 acres of land lying on Simmon’s fork in the county of Giles, .which land was sold by said Abbott to said *134Brown. Said Stuart’s ^executors . agree to make a title to said Brown for the land as soon as Brown pays to them the balance of the purchase money due to said Abbott, provided that said balance amounts to 40 dollars.

Gerard B. Stuart, ex’or of

A. Stuart dec’d.”

At the time this paper was executed the bond of Abbott was not present; and he was and has continued to be insolvent.

Brown in his answer insisted that by this paper the executors had released their lien on the land;'and that Stuart had undertaken to make him a title upon his paying the balance he owed Abbott if it amounted to 40 dollars; and therefore that at most they could only subject the land for this sum: And so the court below held by its decree; from which Stuart’s executors applied to this court for an appeal, which was allowed.

N. Harrison, for the appellants.

Caperton, for the appellees.

*

*He*is related to the appellants.

†

Sale of Land — Retention of Title — Subjection of Land for Purchase Price. — For the proposition that, where the vendor retains the title to land, upon the sale of it, he has reconrse upon the land for the purchase money, see the principal case cited and approved in Yancey v. Mauck, 15 Gratt. 308, and *note;*Stoner v. Harris, 81 Va. 461.

‡

Executors and Administrators — Release of Lien.— Upon the question of the right of an executor or an administrator to release liens upon the land of their testator, see the principal case cited in Hoge v. Vintroux, 21 W. Va. 12; Stribling v. Coal Co., 31 W. Va. 90, 5 S. E. Rep. 326.

See monographic *note*on “Executors and Administrators.”

SAMUELS, J.

It is somewhat doubtful Whether the receipt given by Gerard B. Stuart, one of the executors, to the defendant William Brown, should be regarded as intended to make a new and substantive contract variant from that made by the testator in his lifetime with the defendant Abbott. Conceding, however, that it was so intended, yet under the circumstances of the case, it should not be allow'ed to have that effect. There were three representatives (of whom Gerard B. Stuart was one) charged with the official duty of collecting the assets of the estate; and with the further .duty of conveying the land in the bill mentioned when the price of it should be paid. The only available security - for the debt, which is part of the assets, is the land itself, inasmuch as Abbott, the purchaser, is utterly insolvent; and the arrangement made by *Gerard B. Stuart, as understood by the appellees’ counsel, is an executory contract to waive, and renounce the only means of collecting a large proportion of the debt: In effect they would make it a contract to commit waste of the assets committed to the charge of the executors. 2 Wms. on Ex’ors 1104. Such a contract, if made, should receive no countenance in any court; it should not be enforced against Gerard B. Stuart himself; much less should the other executor and the executrix be compelled to unite in the devastavit.

I am of opinion that the decree should be reversed, with costs to the appellants; that the cause should be remanded to the Circuit court with directions to render a deóree in favor of complainants against St. Clair Abbott for the balance due on his bond of June 26, 1823, with interest until paid, and costs of suit; and if the amount be not paid in a reasonable time to be fixed by the court, that the land in the proceedings mentioned, or so much thereof as may be necessary, be sold to pay the same and the costs of sale, on credits of six, eighteen and thirty months, for equal portions thereof, bearing interest, retaining the title as security for the price. If the money decreed to complainants shall be paid, that the deed filed in the papers be delivered to the defendant William Brown.

The other judges concurred in the opinion of Judge Samuels.

Decree reversed.