The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1872-04-06
proper understanding of this case, TO be

On the 7sh March, 1871, tie Corporation
Court everruled all exceptions to the report
taken. by Christian, and decreed specific
performance by him of the contract Of the
30th June, 1870, and in default of his doing
so in. ninety days appointed commissioners
to sell the premises for the purpose of en-
forcing the compliance on the part of said
Christian. f....5
From this decree Christian obtained an
appeal to this court.
Judge Staples, delivering the unanimous
opinion of the court, says:
Gas q general rule, the purchaser at a
judicial sale Is required to pay the considera-
ton for the estate, although it be destroyed
or taken from him by superior title before
conveyance is executed. For the purposes
Of this case 1t is unnecessary TO state either
the notifications Or exceptions to this rule.
The, question to be considered is, Whether
the sale here is of that charcter%"
The learned Judge then sets out the terms
of the written agreement of 30th June, 1870,
before set forth. He then says:
d "It is impossible to regard this in any
other light than private contract of sale
and purchase. The court was not asked or
expected to make, but to confirm sale
already made. Its aid was invoked to ratify
what had already been done, to sanction
terms already agreed to by the parties. : =
-" The agreement to make sgood deed is
not simplya covenant TO execute deed in
legal form with proper warranty, but to con-,
vey a. good htleS This wns conceded in the
argument and is well settled on all.
thority. Fry on Specific, Performance,
and cases cited in note, page 347;
Fletcher o. Button, A Com., 397. 1t
would be most unjust to apply to a
contract of this character the principles gov
crning Judicial sales. The purchaser at such
sales understands. perfectly that the court
does not undertake to convey good title,
and that it is his duty to make all necessary
inquiries in regard to the estate he is .pur-
chasing. But when the purchaser has stipu-
lated fora good title, is he to be compelled to
take defective one because the court had
rendered decree approving the sale!" =
When person purchases at judicial sale
he thereby becomes in certain sense party
to the cause, and submits himself to the ju-
riSdiction of the court"
The Judge then says that Christian was
not q party to the cause for the confirmation
Of this sale in any sense; and after reciting
how that cause was perfected and the decree
of confirmation entered, and deed made and
tenQcfeQ unQert lC, ne says:
off the appellant had accepted the deed
and the possession, made the payments as
agreed, and executed his bonds for the de-
!rrred payments, it is clear he would have
thereby waived any objection to the title,
and ettectaally precluded himself from any
valid claim to relief Oh indemnity" Daniel
and ais. .. Leitch, 13 Grat., 212; Sue.
vend.; Fry Oh Spoc. PERI, soe. The Judge
then says: -.E
1T seems to me that the appellant is not
precluded by the decree of the court, nor by
ANYTHING that has occurred from abandoning
the contract" He then proceeds to in.
ouire whether he was ,justifable in doing so
and after stating at great length the complex
nature of this lien in favor Of the Building
| Association, and giving graphic description
of the intricacies applicable to these things he
| concludes, Using the language Of Judge
Marshall in Garnett rs. Macon, & Call, 36I
| in which the Chief Justice says:
lit cannot be doubted that these Difficult.
| ties, if presented to the mind OF Il prudent
man contemplating the purchase of IN estate
and desirous of performing his contract &C.
cording to its terms, might have serious in-
fuence on his conduct, and might deter him
from making the purchase. If Informed ci
! Them after making the cortrPct. but before
| its execution by the paying of the purchase
money and receiving a conveyance, hc would
have such strong motives for stopping en-
tirely until the impeachment could be removed
as would, think, justify him for SO doing
in the opinion of any reasonable man."
Judge Staples then applies this reasoning
to this case with peculiar force. lie then
saws the objections which purchaser may
mise are not merely confined to cases OF
doubtful title, but applies to membranes
1 of any descrintion which may in any manner
embail-ass the purchaser in the full and quiet
endowment of his purchase. There is certainly
a difference between defined and admitted
| charge to which the purchase money may
by consent, be applied when it becomes due,
and a contested charge, which will involve
! the purchaser in an intricate and tedious law.
suit of uncertain DURATION" Frcer .. Aerce
u Eng. L. and Z. Rep, 81; Salesburg u
Hatch ID, 81: l Sug. on Vendors, Am
| Ed. y. S4; / Monroe, 219; IA Allen, 523
and cases cited in 2 Dan. Oh. Pr, $685.
note. 1t is true that specific perform
ance will be decreed i'll some in
stances where the vendor is prepared tC
. comply with his covenants at the hearing
and the court will afford him reasonaDlt
| time TO remove membranes and perfect
his title but this is a matter of favor to the
vendor only to be granted in eases which ad
NIT of such relief without prejudice to thu
RIGHTS of the vendee. This indulgence vii
moi he granted when the defect to be rene
dicd was known to the vendor or his attorney
I 'at the time of the contract and was concea'et
from the purchaser. Dalby 4. Pullcn,
Simons, %; Leetunorc {. Bcaguc, , ,iacol
and Walker; Fields Z. Hooper, 3 Mad;
Sug,. 35O." See also Dart on Vendors, 70;
Beayan, 52S IA Jurist, 757; l Iesy. Is. Ap
plying these principles peculiarly to this CASE
case, Judge Staples then says:
| "It is very questionable whether collr
| Of equity would decree In favor Of the Ven
dors even if mo change had taken place il
the condition of the estate. Inasmlcli, how
ever, Us the property which was the sole in
| flucement to purchase has been destroyed by
! fire, without the fault OF the Vendee, befor.
I the vendors were in condition to remove
the cloud upon the title, it would seem very
clear it is not case for specific performance
Where an event happens which determine
/ the existence of the subject matter Of the con
/ tract, the important inquiry is, Was the con
tract at the time so concluded as to chang'
| the right of property and to vest it in the pur
chaser? ! Price, 294. He certainly must b,
considered the owner from the date Of th'
bargain, where the vendor is in no deflllt, ant
d is prepared to convey clear title. But if, &C
cording to the cases, court Of equity viii
not compel purchaser to accept it'll
which the vendor cannot make out 10 b.
i clearly good and free from incumbrancc
! how is the purchaser to be regarded as th
owner till these objects are effected and th'
vendor Is prepared to make the title accord
! ing to the contractT' Carrodus Z. Sharp, q
| Beayan, 56; Monroe c. Taylor, NJ. A. q
e.. 7l3; Fry on Spec. PERI, 895; ii Fcsy