#### *John Laurens*vs. *Edward S. Lucas.*

In suit for specific performance by the vendor, the purchaser will not he compelled to take a doubtful title. In such cases, however, the Court acts on *moral*certainty, and the purchaser will not be allowed to object to the title on account of a bare possibility.

A devise *after payment of debts*confers an immediate vested interest, the words of apparent postponement being considered only as creating a charge; and the receipt by the executor of funds sufficient to pay the debts, relieves the estate of the devisee from the charge.

Testatrix devised a plantation to J. L.to be takejrby him at a oertain valuation — he, before taking possession, to exeoute bonds and a mortgage of the plantation to certain members of her family for certain proportional parts of the valuation j and if he should decline, then to E. It. at the same valuation and on the same terms; and if he, also, should decline, then to M. J. at the same valuation and on the same terms; and if M. J. should decline, then that the plantation be sold by her executors and the proceeds divided; but if the fund she had provided for the payment of her debts should prove insufficient, then that the residue of debts “be paid out of the proceeds of said plantation whether taken at the said valuation or sold as aforesaid.” J. L. took possession without executing the bonds and mortgage. It was afterwards ascertained that the whole value of the plantation would be required for the payment of debts, and thereupon J. L. took from the executor a conveyance of the plantation, and paid the valuation fixed by the testatrix to the executor, who disbursed it in payment of *debts;*— Held,

That the giving of the bonds and mortgage was not a condition precedent to the vesting of the title in J. L.

That J. 1. occupied the position of a purchaser for valuable consideration discharged of the obligation to give the bonds and mortgage; and that he was not hound to see to the application of the purchase money.

Where an executor has authority to sell, a purchaser is not bound to see that he applies the proceeds to the debts in the order prescribed by law.

*Before*Wardlaw, Ch., *at Chambers, Charleston.*

A sufficient statement of the facts will be found in the circuit decree, and in the opinion of the Court of Appeals. The Circuit decree is as follows :

Wardlaw, Ch. Mrs. Eliza Laurens died in 1842, leaving a will and several codicils, whereby after directing the principal part of her estate to be kept together until her grand-son, John Laurens, the plaintiff, should attain the age of twenty-one years, and her negro slaves (with the exception of a few that *218were specifically bequeathed) to be then sold and her debts paid out of the proceeds of sale, she devised her plantation on Cooper river, called Mepkin, to the plaintiff, to be taken by him at a certain valuation ($37,000). But inasmuch as the value of this plantation greatly exceeded the plaintiff’s distributive share, and the intention was not to give him a greater proportion of her estate, but only to ensure to him the refusal of the family seat, at a fair valuation, she directed that previous to his taking the said plantation he should execute bonds and a mortgage of the same to certain members of her family for certain proportional parts of the valuation. The testatrix further directed that in the event of the plaintiff dying or declining to accept the devise on the terms mentioned, her son, Edward R. Laurens, and her daughter, Harriet Ingraham, should successively have the refusal of the plantation on the same terms; and in the event of all of them declining, then the plantation should be sold by her executor, and the proceeds be similarly divided. And, lastly, it was provided that in case the fund designated for the payment of her debts, viz: the sales of the negroes not specifically bequeathed, should be insufficient to pay the full amount, the residue of debts should be " paid out of the proceeds of Mepkin, whether taken at the valuation or sold.”

Edward R. Laurens, the sole executor named in the will, proved the same. The plaintiff came of age in the latter part of 1845, and accepted the devise oí Mepkin, and went into possession. The negroes were sold about the same time, but the proceeds of sale were insufficient for the payment of the debts, and the whole amount at which Mepkin was valued was required in addition. The plaintiff accordingly paid it to the executor, who disbursed it ail in the payment of debts. Having thus paid the price of the plantation in full, the plaintiff did not execute the bonds and mortgage mentioned in the will. On November 25, 1851, the plaintiff agreed to sell the plantation to the defendant, Edward S. Lucas, for thirty thousand dollars. A written agreement was duly executed between them, and Mr. Lucas took possession on the day of *2191851, without any examination of the title. Upon that examination being made afterwards, he was advised that the title was liable to objections, and he refused to fulfil the agreement; and this bill was filed for a specific performance of the same. There are no disputed facts between the parties, and the cause was heard on the bill, and answer:

The defendant is satisfied with the chain of title down to Mrs. Laurens ; but he contends, in the first place, that the devise by her to the plaintiff depends on a condition, to wit: the giving bonds and mortgages to the parties mentioned in the will for proportional parts of the valuation of Mepkin, and that the condition is precedent, and consequently necessary to be performed before the title could vest. The words of the will are, that “ previous to taking the plantation he shall execute bonds,” &c. These terms do not necessarily import that the title shall not vest until this condition is performed, and the nature of the condition itself precludes such an interpretation: because the condition is that the devisee shall execute a mortgage — a thing which he could not do before the title had vested in him. Besides the devise is first to the plaintiff in direct terms, which, if the will had stopped there, would have been an absolute devise, so that the following condition annexed must be a subsequent, not a precedent one. *Peyton*vs. *Bury*2 P. ffm. 627. In *Porter Shephard,*6 T. R. 668, Lord Kenyon says, “ Conditions are to be considered to be either precedent or subsequent, according to the fair intention of the parties, to be collected from the instrument, and technical words, if there be any such, should give way to the intention.” Take the intention of the testatrix as our guide in this case ; and it is manifest that she never designed that this devise should fail, because the performance of the condition attached to it became impossible. A prominent desire in her will evidently is that this grand-son should be the proprietor of the family seat, and her meaning was simply that-Mepkin should be charged with certain legacies, and those charges be recognised by the devisee in the form of bonds and a mortgage, and not that the ceremony of execu*220ting those papers should be a prerequisite to the vesting of the title.

But the provisions of the fourth codicil render it unnecessary to consider the question of conditions precedent or subsequent; that codicil was executed in 1842, more than four years after the will, and probably after the testatrix had incurred new liabilities which made it likely that Mepkin would be needed in aid of the fund set apart for payment of her debts, and it expressly provides that, in that event, the same should be “ paid out of the proceeds of Mepkin, whether taken at the said valuation, or sold as aforesaid.” The entire proceeds of Mepkin, as we have seen, were required for the payment of her debts, and were accordingly paid by the plaintiff to the executor, and so applied by him. This payment to the executor was under the circumstances in accordance with the terms of the will, and it cannot be said that the testatrix intended the plaintiff to pay to the executor the entire value of the property, and give the bonds and mortgages spoken of besides. But it is further objected that there are still outstanding specialty demands against the estate of Mrs. Laurens, which, having received no share or dividend of the assets, now constitute claims against Mepkin, in the hands of the plaintiff. The only demand which has been presented, it seems, is that of the heirs of Timothy Street, who are creditors of Edward R. Laurens, as Master in Equity, Mrs. Laurens having been one of his sureties for the first two of the four successive terms for which he was elected to this office, and they do not seek to subject Mepkin to their demand, but only the legacy left by Mrs. Laurens in the hands of the legatees. If the plaintiff, like those legatees, were a volunteer, there might be force in the objection ; but he is not a volunteer, he must be regarded as a purchaser. It has not been decided yet whether Street’s claim is good against the bonds of the first two terms; but whether or not, it was not presented before the estate had been closed after due notice to creditors, according to law, so that even the executor, if he were not himself an obligor on the bonds, could not be held liable in his own estate *221to these, or other like demands, and the plaintiff stands in a better position than the executor, inasmuch as he was not bound to see to the proper application of the money paid for Mepkin.

It is ordered and decreed that the agreement in the pleadings mentioned dated November 25, 1851, and filed with the bill, be specifically performed, and carried into execution. And upon the plaintiff executing and delivering to the defendant at the expense of the defendant, according to the said agreement and conditions of sale, a proper conveyance of said plantation called Mepkin, as heretofore tendered by him, it is ordered that the defendant pay to the plaintiff the amount of cash principal and interest and execute and deliver to the plaintiff the bond or bonds, and mortgages, arid pay the commission of two and-a-half per centum on the amount of the purchase money, and do and perform the other acts and things required by the said agreement, according to the true intent and meaning thereof. Either of the parties to be at liberty to have a reference to the Master to determine the amount of cash to be paid, and the securities to be given, and the other things to be done by the defendant in case the said parties do not agree. Costs to be paid by the defendant.

The defendant appealed on the grounds:

1. Because the devise to the complainant could only take effect, even according to the terms of the will, after the payment of the debts of the testatrix; and was, besides, conditional upon his complying with the other directions of her will, and that whether precedent or subsequent such condition would operate as a lien or charge upon the estate, both in the hands of the complainant and all others claiming under him with notice.

2. Because the defendant cannot be bound as a purchaser to look into the administration of the estate of Mrs. Laurens to ascertain that the money paid by complainant to the executor was applied in the proper course of administration.

3. Because it appears that there are still outstanding specialty *222obligations of the testatrix which would be entitled to be satisfied out of her real estate in preference to any debts that appear to have been paid by the executor.

4. Because under all the circumstances of the case the title is a doubtful title, and such as the Court will not compel a purchaser to take.

Dukes, for appellant.

The opinion of the Court was delivered by

Dunkin, Ch.

When John Laurens, in November, 1851, agreed to sell the Mepkin plantation to the defendant, Edward S. Lucas, he had been about six years in the possession of the plantation. He had paid thirty-seven thousand dollars for it to the executor of his mother, Mrs. Eliza Laurens. This sum is admitted to have been the full value of the premises, and seven thousand dollars more than the price stipulated to be paid by the defendant. Under these circumstances the agreement was made, for the specific performance of which these proceedings were instituted. The objections of the defendant are set forth in the grounds of appeal from the Chancellor’s decree. Before adverting to them, it may be proper to state the general principle of this Court in carrying such agreements into execution. A purchaser cannot be compelled to take a doubtful title. But on this subject the Court acts on *moral*certainty, and a purchaser will not be permitted to object to a title on account of abare possibility. This is illustrated by *Lyddall*vs. *Weston,*2 Atk. 19, where in the original grant from the Crown there was a reservation of tin, lead and all royal mines. Lord Hardwicke decreed a specific performance against the purchaser on the ground of the great improbability of the existence of such mines as well as the want of a right of entry. And in another case referred to by Mr. Sugden, p. 519, a man articled for the purchase of an estate with some valuable mines, which were under a common, and he objected to complete his purchase because others who had a right of common might bring actions against him for sinking shafts to work his mines, Lord Eldon decreed *223a specific performance, after showing the improbability of any obstruction from the commoners. The objections of the defendant seem to be *first*that the legal title was not in the plaintiff; and second, that if he had the legal title, it is so incumbered with charges or subject to claims, that the purchaser should not be compelled to accept it. The title in Mrs. Laurens is not questioned, and the devise to the plaintiff is in direct terms. It is objected that the devise is after *payment of debts.*“ Whatever doubts may once have existed,” says Mr. Jarman, “ whether these words rendered the devise contingent until the debts are paid, it is now well established that such a devise confers an immediate vested interest, the words of apparent postponement being considered only as creating a charge,” 1 Jarm. 743. A nd *Barnardiston*vs. Carter, 1 P. *W.*505, not only sustains this position, but affirms that the receipt by the executor of funds sufficient to pay the debts, relieves the estate of the devisee from the charge. Then it is said that the execution of bonds to the other legatees was also a condition precedent to the vesting of the devise, *or*was, at least a charge binding on the estate in the hands of the devisee or others claiming under him with notice. The reasoning of the decree shews very satisfactorily that the character of this condition did not postpone the vesting of the estate. But suppose the plaintiff, in order to comply with the terms of the will, or because he was satisfied with the condition of the estate, had executed the bonds and mortgage as directed, and had thus created (if it were possible) a more perfect charge upon the estate than the terms of the devise created, and the plaintiff had been afterwards compelled to pay the full, price of the estate to the *creditors*of the testatrix, can it be doubted that this Court would relieve against the bonds thus given to the legatees ? The extreme improbability of any claim by the legatees arising out of this charge would in itself warrant the Court in regarding the objection as no obstacle to a decree for specific performance.

But this Court is also of opinion with the Chancellor, that *224the plain tiff is entitled to the position of a purchaser of the plantation for valuable consideration; and this view is, perhaps, more in accordance with the ultimate intentions of the testatrix, as well as the subsequent conduct of the parties.

The will of the testatrix was executed in August, 1838. The several codicils extend to November, 1842. Her wishes in regard to Mepkin,fand the disposition of the stipulated value remained substantially the same, but the practicability of gratifying them had become doubtful. In the fourth codicil, executed 28 October, 1842, it is provided that, if her grand-son, John Laurens, “ should be minded to accept the devise of Mepkin plantation ” at the value fixed by the will, he should execute bonds for specific sums to Mrs. Ingraham and Mrs. Ramsay, daughters of testatrix, and to certain of her grand-children. But if he should decline to take the plantation on these terms testatrix then directs that her son Edward R. Laurens *“*should have the refusal of.the plantation” at the same valuation, and, upon his acceptance, should execute certain bonds to the other legatees as therein specified; and, if he should decline, it is then directed that her daughter, Mrs. Ingraham, should have the refusal of the plantation at the same valuation, upon giving bonds as therein specified to the other legatees; and if Mrs. In-graham should decline to take the plantation at this valuation and on these conditions, the testatrix directs that then “ the said plantation shall be sold by her executor, at private or public sale, upon such condition for cash or credit as he may deem most advantageous.” She then directs the disposition of the surplus of the sales, after the payment of her just debts and the legacies previously given; but by the next succeeding clause it is declared that if the fund before specifically provided for the payment of her debts and satisfaction of her legacies should prove insufficient, then that *“*the residue thereof should be paid out of the proceeds of Mepkin, whether taken at the said valuation or sold as aforesaid.” Although the plaintiff had been let into possession of Mepkin, when he became of age, he had never executed bonds to the legatees, probably in consequence *225of the uncertain condition of the estate of the testatrix. But for some time prior to 24 April. 1851, it was well ascertained that the entire proceeds of Mepkin would be absorbed in the payment of the debts of the testatrix. On that day the executor of Mrs. Laurens executed to the plaintiff a conveyance in fee of the premises, acknowledging the receipt from him of the sum of thirty-seven thousand dollars ; which consideration money the parties agreed was disbursed by the executor in the payment of •the debts of the testatrix. This unquestionably constituted a sale of the plantation; and, if the executor had authority to sell, this deed operated as a complete transfer of the title of the testatrix. The proposition, sufficiently plain, may perhaps be illustrated by supposing that the plaintiff had paid nothing to the executor, and that the executor, finding the proceeds of Mepkin were demanded for the exigencies of the estate, had, on 24 April, 1851, sold the premises to a third person for thirty-seven thousand dollars, had executed to him the proper conveyance, and applied the purchase money to the payment of the testatrix’ debts, what infirmity could be detected in the title of the purchaser? And why should not the plaintiff occupy this position ? It has been rather faintly suggested that the executor had only authority to sell after the other parties had declined to take the plantation at the valuation and upon the conditions prescribed by the will. But no form of refusal is prescribed; and under the circumstances it may very reasonably be inferred from their silence and acquiescence that they had declined so bootless a privilege. The only objection which seemed to be seriously urged was, that the testatrix, in her life time, had become o;ab of the sureties of a public officer, and then it is suggested that in the administration of the fund by the executor he had not marshalled the assets according to law. During the life time of the testatrix no lien existed on her estate. By her will the executor was authorised to sell Mepkin plantation and make a valid title to the purchaser. It is difficult to maintain that the death of the testatrix, or the provisions of the Act of 1789, created any lien on the estate. An executor thus *226authorised has the same power as the testatrix. If Mrs. Lau-rens had been alive in April, 1851, her right to sell Mepkin for a valuable consideration and her capacity to make a perfect title are not questioned. She might have applied the proceeds to the payment of her debts, or in any other manner. The title of the purchaser would be in no manner dependant upon the mode in which she appropriated the funds. Unless an executor with authority to sell has the same power, no purchaser either of lands or negroes from an executor would be safe in his title until his administration had been closed and the regularity of his accounts judicially established.

This Court concurs with the Chancellor, that the purchaser from the executor was not bound to see to the proper application of the money paid for Mepkin; and they are also of opinion that the plaintiff stands in an equally favorable position with any third person who might have purchased from the executor.

It is ordered and decreed that the appeal be dismissed, and the decree of the Circuit Court affirmed.

Johnston and Wardlaw, CC., concurred.

Dargan, Ch., absent at the hearing.

*Appeal dismissed.*