
    Grantland v. Wight, Executor of Joy and of Prentis.
    Decided Dec. 11th, 1816.
    r. Equitable Relief — Judgment for Purchase Money of Land.- — A purchaser, having taken possession of the estate, is not entitled to relief in equity, against a judgment for the purchase money, on the ground, that the title of the Vendor is not clearly shewn to be good: but is bound, on his part, to prove it bad. 11
    2. Executors — Sale ol Realty — Warranty.—An Executor selling the land of his Testator, by virtue oí a power given by the Will, is not bound to convey with general Warranty', without an agreement, to that effect; but to that only with special Warranty, against himself and all persons claiming under him; notwithstanding a written agreement, after the sale, that he would make “a good and indefeasible title" to the purchaser; for such agreement is to be understood in reference to the terms of the sale.
    After the reversal, by this Court, of the decree in the case of Grantland v. Wight, reported in 2 Munf. 179 — 186, the cause being remanded to the Court of Chancery, with directions, that the Injunction be reinstated, until Wight should “tender a good and sufficient Deed in the opinion of the Chancellor” Wight accordingly tendered a Deed from him as Executor, with special warranty against the claim of ail persons ^claiming under him, and delivered a Copy; but, as Grantland
    did not pay the purchase money, of course the original Deed was not delivered, but tiled with the papers in the cause. To the Deed, so tendered, Grantland filed three Receptions:—
    1st. Alleging, that the same was not in compliance with the Decree of the Court of Appeals, ! ‘as it did not appear, that the title to the Lot in question was thereby conveyed; it not appearing, that the Testators of the said Wight, or either of them, had the legal title, or that he was duly authorized to convey; and no title papers are exhibited by the said Wight, which can enable the said Grantland to ascertain how the title was derived from the original grantee, or how long the defendant, and those under whom he claims, were in possession previous to the sale.”
    2dly. “Because the said Decree is not properly recited in the said Deed: it being directed thereby, that the said Wight should tender a good and sufficient Deed, and not that he should execute one; the plaintiff understands the Decree, that he should procure a Deed to be executed from those having the legal title, if the same were not vested in him.”
    3dly. Because “the Deed does not contain a clause of warranty, binding the said Wight personally and his heirs, according to his agreement among the Exhibits, and according to the said Decree.”
    An original Deed from Matthew Thomson, and Catharine his wife, to John Joy and John Prentis, and the privy examination of the said Catharine annexed thereto, with a certificate, that the same was of record in the Husting’s Court of the city of Richmond, and the Wills of Joy and Prentis, by which the Executor was empowered to sell the real estate of both the Testators,  being filed as Exhibits in the cause; and it appearing, by the plaintiff’s own shewing in the supplemental bill, on which the Injunction in his favour had been granted, that he had taken possession of the premises; the Court of *Chancery overruled the Exceptions to the tendered Deed, and, approving thereof, dissolved the Injunction as before ; whereupon Grantland again appealed.
    Wickham, for the Appellant.
    J/eigh, for the Appellee.
    
      
       Equitable Relief — Payment of Purchase Honey for Land — Defect in Title. — A vendee in possession of land under a conveyance of general warranty has no claim to relief in equity against the payment of the purchase money on the ground ox a defect in title where there has been no actual eviction or suit depending or threatened. Beale v. Seiveley, 8 Leigh 670, 675. citing the principal case. To the same effect the principal case is cited in Wamsley v. Stalnaker, 21 W. Va. 222; foot-note to Beale v. Seiveley, 8 Leigh 658, containing an extract from Wamsley v. Stalnaker, 21 W. Va. 222, in which the principal case is cited.
      But even at the time when there was most rigor ill this matter in Virginia, the purchaser might have relief, provided he could prove an outstanding superior title in a third person. Koger v. Kane, 5 Leigh 607; Heavner v. Morgan, 30 W. Va. 343, 4 S. E. Rep. 410, both citing principal case.
    
    
      
       Executors — Sale of Realty. — See monographic note on "Executors and Administrators” appended to Rosser v. Depriest. 5 Gratt. 6.
    
    
      
       Note. The agreement was, that Wight, on payment of the purchase money, would make to Grantland and his heirs, or assigns, "a good and indefeasible title in fee simple to the tenement purchased as aforesaid." — Note in Original Edition.
    
    
      
       Note. The power to sell enabled the Executor to make the Conveyance also. See the Act of 1702. Rev. Code, 1st vol. ch. 92, § 45. — Note in Original Edition.
    
    
      
       Note. The Chancellor was of opinion, “that a Vendee being in possession, as in this case, and coming into equity for relief against a Judgment at law for the purchase money, on account of any defect in the title, must prove such defect, and has not the right to ask of the Vendor to deduce his title. Not so, where the Vendor is plaintiff, asking ior a specific performance and the purchase money: then, he must, to enable a Court of Equity to relleye him, come with a title, agreeably to his contract, free from suspicion; for, if there be any doubt about it, the Vendee, being a defendant, may, if the case requires it, have a reference of the title to a Commissioner of the Court, in order that the title may be deduced, and the defects, if any, removed, before relief should be afforded, unless in case of mere probability.” He was also of opinion, “that the agreement among the exhibits should be understood in reference to the terms of the sale, as disclosed by the plaintiff in his Bill; and, therefore, the defendant wight was not bound to make a Deed with a warranty, against himself and his heirs, in any other manner than as expressed in his Deed aforesaid.”
      See, in support of this opinion, Sugden’s Law of Vendors, p. 210, 213, 214, 155. 157; Colton v. Wilson, 3 P. Wms. 191; and Calcraft v. Roebuck, 1 Vesey, jr. 225; authorities cited in Mr. Leigh’s argument. — Note in Original Edition.
    
   December 11th, 1816, the President pronounced the Court’s opinion, that there was no error in the Decree, which therefore was affirmed.  