v. 1842. (if any) of the said responsibilities above the judgApril. ment, to a decree against the said principals in the Shores indemnifying bond, in the right in which such excess Wares may be due to him; and that the said decree is erroneous. Decree therefore reversed with costs, injunction ordered to be reinstated, and cause remanded to Circuit Court for further proceedings to be had therein in conformity with the foregoing principles.” The other judges concurring, decree entered accordingly. Richmond. BRYAN V. LOFFTUS's adm❜rs. (Absent Stanard and Baldwin, J.*) On the 10th of October, 1818, a sale was made of a tract of 370 acres of land in Augusta county, at $40 per acre, to be paid as follows, viz: $600 in hand (which was paid accordingly); $1,200 on the 28th of December, 1818, with interest from the day of sale; $1,200 on the 28th of March, 1819, with like interest; $750 on the 28th of March, 1820, and the residue in sums of $750, payable at specified times. By the articles of agreement, the vendee was to give bonds and satisfactory security for his payments, and the vendor bound himself to make the vendee a good and sufficient deed in fee simple, with general warranty, at the first Augusta Court after the payment in 1819. The vendee paid the instalment which fell due on the 28th of December, 1818, and the instalment which fell due in 1819 was paid, part before, and the residue on, the 9th of December in that year, so that the vendor became bound to make a deed for the land as early as the first Augusta Court after the 9th of December, 1819. No deed was made. The vendee notwithstanding paid the instalment which fell due on the 28th of March, 1820. About the 10th of April of that year, the vendor died insolvent, and the vendee, soon after his death, made known his determination to make no farther payments until he should get a title. On the 10th of September, 1821, a suit in equity was brought by the administrators of the vendor against the vendee and the heirs of the vendor, to compel a specific execution of the contract; and no title having ever been obtained by the vendor, the complainants made defendants those in whom that title was outstanding. A considerable fall having taken place in the value of property, the vendee, by his answer sworn to in May, 1825, resisted the prayer of the bill, on the ground that, under the circumstances of the case, equity required a rescission, and not an execution of the contract. At this time the default of the vendor's heirs still * One had been counsel for the appellant in the court below, and the other had been retained as his counsel in this court. 1842. May. 1842. May. Bryan V. Lofftus's adm'rs. continued, and it continued three years afterwards; that is to say, it continued for more than eight years from the time when the vendor had bound himself to make the title. During this time the land had fallen in value more than 50 per cent. and the vendee had never surrendered possession. HELD: 1. That the long continued default of the vendor and his heirs, and the change of circumstances during its continuance, constitute a valid objection to a specific performance of the contract. 2. That the vendee should, on the one hand, release all his rights under the contract, deliver up the land, and account for its rents and profits during the time he held it; and, on the other hand, have the purchase money paid by him returned, with interest from the times when the payments were made, and also have the value of any permanent improvements which he may have put upon the land set off against the rents and profits, provided they do not exceed the amount of the said rents and profits. 3. That if, on stating an account between the parties on these principles, a balance should appear to be due from the vendee, he should be decreed to pay it; if in his favour, it should be decreed to him, and if there be no sufficient personal estate of the vendor to pay the same, the land should be subjected to its payment. 4. That each party should pay his own costs, except as to taking the accounts, the costs of which should be equally divided between the parties. This was an appeal from a decree of the Superior Court of Chancery formerly holden in the town of Staunton. The facts of the case, so far as they are material to the questions decided by the Court of Appeals, were stated by Cabell, P. at the time of delivering his opinion, to be as follows: On the 10th day of October, in the year 1818, Ralph A. Lofftus and Daniel Bryan entered into articles of agreement under their hands and seals, by which Lofftus sold to Bryan a tract of land containing 370 acres more or less, lying on Middle river in Augusta county, at 40 dollars per acre, to be paid as follows, viz: 600 dollars in hand, (which was paid accordingly); 1,200 dollars on the 28th of December then next ensuing, with interest from the date of the contract; 1,200 dollars on the 28th of March, 1819, with interest as aforesaid; 750 dollars on the 28th of March, 1820; 1842. May. Bryan V. 750 dollars in nine months thereafter; and the residue in equal annual instalments of 750 dollars from the date of the payment last mentioned, until the whole purchase money should be paid; for which pay- Loftus's ments Bryan was to give bonds and satisfactory secu- adm'rs. rity; and Lofftus bound himself to make Bryan a good and sufficient deed in fee simple with general warranty for the land, at the first Augusta Court after the payment in 1819. Bryan received possession immediately. He paid the instalment which fell due on the 28th of December, 1818. On the 25th of March, 1819, he paid 1,200 dollars towards the instalment which was to become due on the 28th of that month; and he paid the residue thereof on the 9th of December, 1819. Lofftus therefore became bound to make a deed for the land, at least as early as the first Augusta Court after the 9th of December, 1819. No deed was made. Bryan notwithstanding paid to Lofftus the instalment which fell due on the 28th of March, 1820. Lofftus died insolvent about the 10th of April of that year, without having made any conveyance of the land, leaving as his heirs six adult brothers and sisters, and two infant children of a deceased brother. Shortly after the death of Lofftus, Bryan made known his determination to make no farther payments until he shonld get a title to the land. On the 23d of June, 1821, fourteen months after the death of Lofftus, a deed was prepared, purporting to be a deed from the six adult heirs of Lofftus, conveying the land to Bryan. This deed was acknowledged before justices of the peace, by some of the heirs in the year 1821, by one of them in the year 1822, and by another in the year 1823; but it was not acknowledged by Nathan Lofftus, another of the heirs, until the 20th of August, 1828; nor was it ever acknowledged by John Lofftus, another of the heirs, or proved as to him, nor is his name signed to the deed. The infant heirs, of course, 1842. were not parties to it. It does not appear that this May. deed was ever delivered or offered to Bryan; nor was V. Lofftus's Bryan it delivered to the clerk of Augusta to be recorded, until the 25th of August, 1828, the very day on which adm'rs. the decree in this cause was pronounced. A deed from John Lofftus and wife to Bryan appears to have been executed on the 23d of August, 1828. Ralph A. Lofftus had purchased the land in controversy from Henderson and Robertson, who had previously conveyed the same to certain trustees to secure a debt due to Donaghe. The legal title to the land was in those trustees; and although Lofftus, in virtue of his contract with Henderson and Robertson, might be regarded in a Court of Equity as assignee of the equity of redemption in the land, still he had received no conveyance for that, any more than for the legal title. He therefore was never, at any time of his life, in a condition to comply with his obligation to Bryan, to make him "a good and sufficient deed" for the land; and it is apparent from the bill, and from the decree itself, that his heirs were not, even at the date of the decree, in a situation to comply with that stipulation in the contract of their ancestor. This suit was brought, on the 10th of September, 1821, by the administrators of Lofftus against Bryan and the heirs of Lofftus, to compel a specific execution of the contract between Lofftus and Bryan. But as it was apparent that the administrators and heirs. of Lofftus combined were not in a situation to do that which was indispensably necessary to compel a performance on the part of Bryan, Henderson and Robertson and the trustees and executor of Donaghe were made parties, in order to supply the defect, and to enable that to be done which Lofftus had bound himself to do as far back, at least, as the early part of the year 1820. |