
    Crenshaw v. Smith and Co.
    Decided, Feb. 10th, 1817.
    i. Sale of Land — Warranty-Eviction—Abatement,—
    Ii seems, that, where the purchase money for land, which the vendor has conveyed with warranty, has not been fully paid; and the purchaser comes into Equity for an abatement or discount, from the snm remaining due, on account of a loss by an eviction of part of the land; he should be allowed the value of the land lost, at the time of the purchase, and not at the time of the eviction.
    See note lo 1 Munf. 338; and 1 Munf. BOO.
    It appeared from the Record in this case, that Charles Crenshaw, father of the Appellant Nathaniel, purchased, on the 30th of November, 1775, of Joseph Roberts all the lands the said Roberts owned or claimed in the County of Pittsylvania, among which was a tract of one hundred acres, whereof a certain Joseph E, Hailey, afterwards, viz. on the 12th of September, 1789, recovered possession, by the Verdict of a Jury upon a Warrant of forcible Entry and De-tainer, against the said purchaser. Roberts, by Deed bearing date the 12th of June, 1776, had warranted the title to the said lands generally, gainst all persons whatever. The purchase money, due on the contract, was partly paid ; and two bonds on the same account, the one for 871. 3s. 6d. and the other for 1001., payable April 1st, 1777, and April 1st, 1778, remained unpaid; which Bonds, by assignment from Roberts, and several intermediate assignments, were transferred to James Smith and Co. British Merchants, and, in their absence from this country during the American Revolution, were lost or mislaid.
    By the last Will and Testament of Charles Crenshaw, dated the 9th of February, and admitted to probate the 3d of June, 1790, he devised to his son Nathaniel Crenshaw, the tract of land in Pittsylvania County, on which he then resided, “with a proviso, that he should pay the balance of the Bonds given to Joseph Roberts of the said County for lands purchased of him;” and, upon Nathaniel Crenshaw’s failing to discharge the same, the Testator “empowered his Executors to sell the said land, or so much thereof, as would discharge the said Bonds.”
    A Bill in Chancery was filed by James Smith and Co. in the County Court of Pittsylvania, in August, 1803, against the Executors and Devisees; making also Roberts and the other assignors of the Bonds defendants; to set up the Bonds, so lost or mislaid, and obtain a decree for the amount. A cross-bill was exhibited by the Executors, (who were John Crenshaw and Nathaniel Crenshaw,) against James Smith and Co. and Samuel Calland their agent, to be allowed an abatement or discount for the loss of the said one hundred acres of land. Calland, by his answer, contended that the land recovered by Hailey, was not any part of the land for which the Bonds were given ; alleging that the Testator’s honourable anxiety, to provide by his last Will and Testament sufficient funds to pay oil those Bonds, manifested this; that, had it been otherwise, he would not have directed the payment, without insisting on some deduction ; and also that, in addition to the one hundred acres, and Mill, for which the Bonds aforesaid were executed, the Testator acquired of said Roberts an entry or entries, covering a large quantity of adjacent land; and that the land recovered by Hailey was a part of that adjacent land.
    Both causes were" removed from the County Court to the Superior' Court o± Chancery, by Certiorari, and afterwards heard together, on the Bills. Answers, Exhibits and Examinations *o£ Witnesses; on consideration whereof, Chancellor Taylor decreed, in the first suit, that the defendant Nathaniel Crenshaw pay to the plaintiffs the amount of the Bonds in question, with costs; reserving liberty to the plaintiffs to resort to the Court, if it should be necessary, to subject the land, devised by the Will to the said Nathaniel, to satisfy the same; and dismissed the cross-bill, with costs. From this decree, Nathaniel Cren» shaw appealed.
    Bonldin for the Appellant.
    Wickham for the Appellees.
    
      
      See foot-note to Humphreys v. M’Clenachan, 1 Munf. 493.
      In Stout v. Jackson, 2 Rand. 141, Judge Gbeex said that he had been informed by one of the judges who sat in the principal case that it was wrongly reported; and Judge Coautisr said (p. 166), that the case was not reported as full as could Toe wished.
    
   February 10th, 1817,

JUDGE ROANE

pronounced the Court’s opinion.

The Court is of opinion that the hundred acres of land in the proceedings mentioned, recovered from the Testator of the Appellant, by Joseph E. Hailey, formed a part of the consideration of the Bonds in controversy; and, as it at present appears that the title of the same is in the said Hailey, and not in the Appellant, or Roberts, under whom he claims, the Court is farther of opinion, that the A.ppellant should have credit for the value thereof, as at the time of the purchase, in part satisfaction of the Bonds aforesaid; saving, however, a right to the Appellee, if he thinks proper, to make the said Hailey, or his representatives, parlies to the cross bill of the Appellant; and if it shall be established, by the event of that suit, that the said Appellant, or those, under whom he claims, and not the said Hailey, or his representatives, are leg'ally entitled to the land aforesaid, that, then and in that case, the amount aforesaid is not to be allowed.

The Decree is therefore reversed, with costs, so far as it conflicts with this opinion ; and the cause is remanded, in order to be finally proceeded in pursuant to the principles above declared. 
      
       Note. The point, whether tile Appellant ouyht to have credit for the value of the land at the time of the purcha.se. or at the time of the eviction, was not made in the argument ot this cause It appeared by the deposition of Jos. E. Hailey, that the value of the 100 acres recovered by him, was, at the time of that recovery, 431. 10s. Od.; and that, after-wards, viz., in the year 1806. it had risen to 1001: but what the value was at the time of the purchase, did not appear. — Note in Original Edition.
     