
    Richmond.
    Kyles v. Tait’s adm’r.
    
    1849. April Term.
    
    ^ y leases a tenement to K for five years. T, during the same year, sells and conveys the tenement to C ; and the rent reserved on the lease, it is agreed shall be received by T; and that it shall be taken as so much of the purchase money paid. Held :
    1. It was a sale of the tenement subject to the lease, the vendor reserving the rent: And the vendor did not waive his lien for the purchase money or any part thereof, by the stipulation in regard to the rent.
    2. If in consequence of the absolute conveyance to C, the right of T to enforce the collection of the rents from K, was lost or impaired, C incurred a personal obligation to account for the same to T, if the rent was collected by him, or otherwise released by him.
    2. Upon a bill to enforce the vendor’s lien for purchase money, against a purchaser from the first vendee, the answer alleges conveyances from the first vendor to his vendee, and from this vendee to the defendant, and the payment of the whole of the purchase money, before notice of plaintiff’s claim. The conveyances are shewn, but there is no proof of payment of the purchase money; though it does not seem to have been questioned. There is no positive proof of notice, but the facts lead to the probability that there was notice. The lien enforced.
    3. Upon a decree to enforce the lien of the vendor for unpaid purchase money, the decree should give a day to the defendants to redeem the property, by paying up the amount charged upon it.
    4. As a general rule, the decree in such case, should direct a sale on a reasonable credit.
    
      
      Caleb Tait, being the owner of two adjoining teñements in the town of Lynchburg, he, on the 16th of March 1812, leased one of them to the firm of Kyle if Mays, for five years commencing from that date, at £100 a year; and on that day, Kyle if Mays paid to him the rent for three years. Some time during the same year Tait rented to Dr. Humphreys the tenement adjoining that rented to Kyle if Mays, for one year at £100. On the 10th of December 1812, Caleb Tait sold, and on the next day conveyed to James C. Moor-man the aforesaid two tenements, for £ 4200. Of this sum, a part was paid by lands in Kentucky, a part by lands in the county of Campbell, £ 600 in cash, “ David Kyle’s lease on the house four years £ 360,” “ one year’s rent of the tenement in the possession of Dr. Humphreys and on the balance amounting to £1080, Moorman was to have a credit of ten years, upon his paying the interest yearly; and he was to give his bond for the amount.
    The rent due March 16th, 1816, from Kyle if Mays, was paid by them to Caleb Tail’s adm’r. But David and William Kyle having in 1814, purchased from Moor-man the two tenements, and received a conveyance therefor, and Moorman insisting that Tait was not entitled under the contract between Tait and Moorman, to the rent which fell due in March 1817, the Kyles did not pay it. Tail’s adm’r thereupon in 1819, filed a bill in the Chancery court at Lynchburg against Moorman and the Kyles, in which he set out the contract between Tail and Moorman, and sought to recover this rent, and also to compel Moorman to execute the contract by giving his bond for the balance' of the purchase money, for which he was to have a eredit of ten years, and to pay up the interest thereon which was in arrear. Moor-man answered the bill, and denied the plaintiff’s right to the rent which fell due in March 1817; and the Kyles answered, stating that they had paid the rent up to March 1816; and that they had not paid the rent for the next year, because the tenement had been sold and conveyed to them prior to the 16th of March 1816.
    This cause was so proceeded in, that on the 20th of October 1823, the Court made a decree against Moor-man, by which he was directed to pay to Tait’s adm’r the sum of 4466 dollars 93 cents, with interest on 3489 dollars 33 cents, a part thereof, from the 10th of December 1822, till paid: that being the balance of purchase money, principal and interest.
    
      James C. Moorman having failed to pay to Tait’s adm’r the amount of the decree of October 1823, the administrator, in May 1824, filed his bill in the Chancery court of Lynchburg against Moorman and David and William Kyle, in which he set out the contract between Caleb Tait and Moorman, and the proceedings in the former suit; and charging that Moorman was insolvent, and that the Kyles purchased from him with notice of Tait’s equitable lien for the purchase money, he sought to subject the two tenements in the possession of the Kyles to satisfy the decree against Moorman.
    
    The Kyles answered the bill. David Kyle says: That he has no knowledge of the contract between Caleb Tait and James C. Moorman in relation to the sale of the tenements therein mentioned, other than that derived from the proceedings in the suit referred to in the bill; which suit was instituted long after he bought the property from Moorman, and had paid for the same. He expressly denies that he had notice at the time of his purchase, of any lien either legal or equitable, on said property. He ascertained that said Moorman had an absolute deed of bargain and sale from Tait for the tenements, and having done so, he became the purchaser without any enquiry in relation to the contract between Caleb Tait and Moorman. That before the sale by Tait to Moorman, he had made to Tait an offer for the purchase of the tenements, which Tait rejected. That shortly afterwards defendant left home : and when, after several weeks absence, he returned, and again proposed to purchase the property, he was informed by Tait he had sold it to Moorman; and to use his own language, “he had got paid for it.” He denies most positively any knowledge of the contract between Tait and Moorman in relation to the terms of payment for said property. He contracted with Moorman, on the faith of his deed, and complied with that contract without the least suspicion or any notice whatever, of the claim now set up in the plaintiff’s bill. Under all the circumstances he is advised the said property is not subject to the lien pretended by the plaintiff, especially as he was a bona fide purchaser for valuable consideration, and without notice. He does not admit that he paid the purchase money to Moorman after notice of the pretended lien to the plaintiff or his intestate. On the contrary, the payment was made before any notice of the lien.
    
      William Kyle answered, and said that David Kyle was the acting partner of the firm in Lynchburg. He denied all knowledge of the facts stated in the plaintiff’s bill, and referred to and adopted the answer of David Kyle.
    
    There was no direct proof that the Kyles were informed of the terms of the contract between Tail and Moorman; but it was proved that at the time of the contract they occupied one of the tenements, and that the contract was generally known in Lynchburg, and talked of as an extraordinary one.
    The cause came on to be heard in May 1830, when the Court below held that the answer of David Kyle was evasive, and that therefore he had not made it necessary by his answer, for the plaintiff’ to prove that he had notice. And the decree was that the plaintiff should recover against James C. Moorman the sum of 4466 dollars 93 cents, with interest on 3489 dollars 33 cents, a part thereof, from the 10th of December 1822 until paid, and his costs. And that the marshal of the Court, after advertising the sale as prescribed in the decree, should proceed to sell for ready money, the lot and tenements in the bill mentioned, and after deducting the expenses of the sale, should deposite the proceeds in one of the banks in Lynchburg. From this decree David and William Kyle applied to this Court for an appeal, which was allowed.
    
      Samuel Taylor and Cooke, for the appellants.
    
      G. N. Johnson, for the appellee.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that according to the true intent and meaning of the parties, to be collected from the pleadings and exhibits in the cause, they contemplated a sale and purchase of the premises in the proceedings mentioned, subject to the lease, the vendor reserving the rent; and if in consequence of the absolute conveyance to the vendees, the right of the vendor to enforce the collection of the rents from the tenants, was lost or impaired, the vendees incurred a personal obligation to account for the same to the vendor, if the same was collected by them, or otherwise released by them. The Court is therefore of opinion, that there was no waiver of the lien for the purchase money or any part thereof, by the stipulation in regard to the rents.

The Court is further of opinion, that under the pleadings in this cause, and the facts disclosed by the record, the appellants, notwithstanding their answers, cannot be regarded as bona fide purchasers without notice of the facts upon which depended the claim of the vendor Caleb Tail, to charge the property sold with the vendor’s lien for the unpaid purchase money.

The Court is therefore of opinion, that there is no error in so much of the decree as holds the lot and tenemerits in question liable for the amount of the purchase money ascertained by the decree in favour of the administrator of said Caleb Tail against the said James C. Moorman, to be due and unpaid, and in decreeing a sale of said property for the payment thereof.

But the Court is of opinion, that in the details of said decree there was error in this, that said decree gives no day to the appellants to redeem the property by paying up the amount charged upon it. And also in directing a sale for cash, instead of allowing a reasonable credit; there being nothing in the record to shew that in the exercise of a sound discretion a sale of such a valuable property for cash was required; and the relation of the parties, and the character of the lien rendering it proper that a sale upon a reasonable credit should have been directed. It is therefore adjudged, ordered and decreed that said decree, so far as the same is hereinbefore declared to be erroneous be reversed, and that in all other respects it be affirmed. That the appellants recover their costs, and that the cause be remanded with instructions to enter a decree providing that unless the appellants, or some one for them, pay to the appellee the debt and interest ascertained to be due by said James C. Moorman on account of said purchase money, and the costs of said suit, within 90 days, that said property be sold upon reasonable credits to be fixed by the Court; and for further proceedings in order to a final decree.  