
    
      Clarke & Another v. Curtis.
    February, 1841,
    Richmond.
    Vendor and Vendee — -Conveyance—Condition Precedent to Payment ot Purchase Money — Case at Bar.— Upon an agreement to sell to three joint purchasers land and certain personal chattels then npon It, for a sum in gross, to be paid wben the vendor shall have made a deed of the land and a bill of sale of the personal effects, and that the purchase money shall be paid in equal instal-ments at future days appointed, vendor, without making such conveyances, delivers possession of both the real and personal subject to the vendees: Held, the making the conveyances by vendor is not a condition precedent to his right to demand the purchase money.
    Same — Vendee in Possession — Case at Bar. — About the time when first instalment falls due, two of the joint purchasers, by agreement of the other and of vendor, are discharged from the contract; and by new agreement between vendor and the third purchaser, he becomes sole purchaser of same subject, for same price, with no other variance but that vendor gives further indulgence for the first instalment: and then vendor agrees to make conveyances of the property to the now sole purchaser, whenever he shall make such payments as they shall agree upon; two months further indulgence is given for the payment of first instalment; purchaser continues in possession of the real and personal property; but vendor makes no conveyance: HELD,
    i. Same — Same -Right of Vendor to Specific Execotion. — A bill in equity lies for vendor against vendee for specific execution of the whole contract, in respect as well of the personal as of the real part of the subject sold.
    2. Same — Same—Vendor’s Lien. — As between vendor and vendee, the agreement in respect to the sale of the personal subject was not executed by delivery of possession thereof to yendee, but yet remained executory; and vendor retains a lien on the personal as well a.s real property, for the purchase money of the whole; disseutienle Stanard, J., as to the lien on the personalty.
    3. Same — Same—Sams-injunction against Waste.— To preserve the security of that lien unimpaired to vendor, the court may properly enjoin the purchaser, and his agent, from committing waste on the land and from selling or removing the personal property.
    4. Same — Purchase Price — Sale of Property.- — And court may properly decree sale of the whole property, real and personal, for payment of the purchase money, unless purchaser shall pay It within a reasonable time given him by the decree.
    *5. Same — Sale of Personalty before Hearing.— But it Is erroneous to order sale of the personalty on motion of plain tifi, before the hearing; and if it be in fact sold under such irregular order, vendor shall give credit for the proceeds, whether collected or not, in part of the purchase money.
    6. Same — Purchase Price — Sale of Property — Deeds.— And it is erroneous to decree payment of purchase money against the purchaser, or a sale of the land by commissioners, without providing that vendor shall make a proper deed of the land ready to be delivered to purphaser, in case he pays the purchase money, or to purchasers under the decree, if the land be sold under it.
    7. Same— Same — instalments—Interest.—In executing the second contract, the first agreement is to be resorted to for ascertaining the date from which the first instalment is to bear interest.
    This was an appeal from a decree of the circuit superior court of Gloucester, upon a bill in equity filed by Curtis against Clarke, for specific execution of a contract of sale. The state of the case, collected from the pleadings and proofs, was thus—
    Charles Curtis first contracted to sell the property to Robert Curtis, Patrick Pitzhugh and William Clarke joint purchasers and equally interested, and he gave them the following note in writing of that agreement— “August 5, 1837. I have this day sold to R. Curtis, P. Pitzhugh and W. Clarke, my farm in Gloucester, county known by the name of Perton, with all its appurtenances, crops, stocks, farming utensils, tools &c. for getting timber, wood &c. and every thing with the exception of the household and kitchen furniture, for the sum of 1300 dollars, and have received in part five dollars ; the residue to be paid when I shall have made unto the aforesaid parties a deed of said estate, and a bill of sale of the personal effects, which instruments shall be executed by me. (Signed) Charles Curtis.” The time for the delivery of possession to the vendees, and for the payment of the purchase money, not being appointed in the written note of the agreement, was arranged by verbal and (it appeared) subsequent agreements — that one half of the purchase money should be paid on the 1st January *1838, and the other half on the 1st June 1839 ; and the vendor agreeing' to deliver possession presently, the purchasers agreed in consideration thereof to pay him, in addition to the first instalment, three per cent, per annum on the amount thereof, from the date of the contract till the 1st January 1838. This part of the agreement appeared not only by parol evidence of it, but by the fact that possession was promptly delivered to the purchasers, and by two bonds executed by them to the vendor, dated the 10th August 1837, one for 6581 dollars payable the 1st January 1838, and the other for 6500 payable the 1st June 1839 ; the 81 dollars, in the first bond, over and above one half of the purchase money originally agreed to be paid, being the three per cent, thereon, from the time possession was delivered to the time appointed for the first payment (according to computation made by the purchaser Clarke), which was to be paid in consideration of the prompt delivery of possession.
    The first payment of 6581 dpllars was not made on the 1st January 1838. By that time Robert Curtis repented him of the bargain; and he solicited Charles Curtis, the vendor, and his copurchaser Clarke, to discharge him from his share of the purchase. _ The other joint purchaser Fitzhugh was a minor; and he too was willing to abandon the purchase. Curtis on his part was willing to discharge them all from the contract; but Clarke insisted on it. Upon this, Clarke agreed to become the sole purchaser, and Charles Curtis agreed to sell the property to him alone, upon the terms on which it had before been sold to the three joint purchasers, with, this variance, that Curtis agreed to give Clarke time until the 1st March 1838, to pay 4000 dollars in part of the first instalment of the purchase money, and further indulgence for the residue of that instalment, but what further indulgence was never expressly agreed; yet the purchase money to be paid by *Clarke, was to be exactly equivalent to that which the three joint purchasers under the first contract were to pay. The three bonds, executed by the three joint purchasers under the first agreement, were then cancelled: and a note of Curtis’s second agreement with Clarke was subjoined to the note of the first, in these words — “Robert Curtis and Patrick Fitz-hugh having withdrawn from the purchase of the above estate &c. I hereby oblige myself to execute a deed to the said William Clarke individually for said property, whenever he shall make such payments as we shall agree upon. January 22, 1838. (Sighed) Charles Curtis.” On the same day, Clarke paid Curtis 1000 dollars, to be credited against the first instalment of the purchase money, and he continued in sole possession of the whole property he had thus bought, which had been.delivered to the joint purchasers under the first contract. But he did not, on the first March following, pay t.he residue of the sum which he had contracted to pay on that day: on the contrary, he refused to pay the same, unless Curtis would first make a conveyance of the property in which his wife- should join so as to relinquish’her possibility of dower in the land; and he insisted upon setting off against that instalment certain claims he had or had procured an assignment of (it did not clearly appear which) against Curtis, amounting to 1124 dollars. Curtis refused to allow the set-off, or to make the conveyance as a condition precedent to the payment of the purchase money; insisting, that the claim of set-off was unjust, and that he had a right to retain the title as a security for the purchase money, until the whole should be paid.
    It appeared, that of the whole property, real and personal, which was the subject of the contract, the value of the personal bore quite a large proportion to that of the real. And it also appeared, that the timber and fire wood upon the land, for which there was a ready market, constituted a large, probably the chief, ingredient of its value; that Clarke had, at the time this suit was '^commenced, cut about 700 cords of fire wood, which, for the most part, was still on the land; that he had as many as ten labourers employed in cutting firewood, capable, if they continued at work, to fell far the greater part of the wood on the land.'
    In April 1838, the vendor Curtis exhibited his bill, setting forth his first agreement for the sale of the property to Robert Curtis. Fitzhugh and Clarke; the withdrawal of R. Curtis and Fitzhugh from the purchase with the consent of himself and of Clarke; the agreement for the sale of the whole subject to Clarke, on the same terms as to the amount of the purchase money, with the variation as to the time of payment of the first instalment; Clarke’s actual possession of the whole property; and the points of difference that had arisen between them as to the execution of the agreement. And then alleging, that the land called Perton was chiefly valuable for the fire wood and timber upon it, and would become comparatively valueless, and almost unsaleable, when these should be cut and removed; that Clarke had already cut, and had many labourers then employed in cutting, the fire wood and timber, who might make such destruction thereof as would render the land worthless; and that he had no security for the purchase money but his lien on the property itself, which the cutting of the fire wood and timber was daily impairing; therefore, he prayed an injunction to restrain Clarke and Fitzhugh' (who was Clarke’s agent upon the land) from cutting more of the fire wood and timber, or removing that which he had already cut, or committing other waste on the land, till Clarke should .comply with his contract for the purchase of the whole property, real and personal. And the bill moreover praj'ed a specific execution of the contract in all respects, and a decree for the sale of the whole property, real and personal, for the payment of the purchase money, unless Clarke should, within a reasonable time, pay the 4000 dollars he had contracted to *pay on the first of March 1838 with interest, and give adequate security for the payment of the residue of the purchase money.
    The injunction was awarded.
    Clarke, in his answer, insisted on a different construction of the written notes of the contract from that which Curtis in his bill put upon them. And he gave a different account of those parts of the agreement which were not in writing, chiefly as to the credit which was to be allowed him, under the second contract, for the instalments of the purchase money, and the time from which the same were to bear interest, and the duty of Curtis to make the conveyance before any of the deferred payments were to be made; and a different account, too, of the points of dispute that had arisen between them when Curtis called on him for the first payment which was to be made in March 1838. He insisted, that he was entitled to a credit against the first instalment, for money paid to Curtis, and just claims against him which he had a right to set off, to the amount of 2124 dollars. And he denied, that he had cut, or intended to cut, more fire wood and timber, than a prudent owner would, or that he had thereby impaired or would impair the value of the land, or that he had committed any other waste upon it.
    There was a great deal of evidence, and conflicting evidence, touching the questions of fact put in controversy by the pleadings ; but this need not be particularly stated, since, in the opinion of this court as well as of the court below, the truth of the case was as above stated.
    In October 1838, Curtis, with leave of the court, filed an amended bill, in which he said, that in his original bill, through an oversight of his counsel, he had omitted to pray an injunction to restrain Clarke, and Fitzhugh his agent, from selling or disposing of the personal chattels, which were on the land called Perton, and which constituted *part, and a large part, of the subject he had contracted to sell. And then alleging, that he apprehended that Clarke and Fitzhugh intended speedily to sell the personal chattels, pocket the purchase money, and then abandon the land and the agreement, and leave him without the means of getting the purchase money, he prayed an injunction to restrain Clarke and Fitzhugh from selling, conveying away or otherwise disposing of the personal property.
    An injunction was awarded accordingly.
    Clarke, in his answer to the amended bill, said, that he had sold to messrs. Colton & Clarke (partners) all the stock of horses, mules, horned cattle (except two cows), sheep and hogs, at Perton, which had been sold and delivered him along with the land by Curtis, for the price of 2000 dollars, of which he had received full payment from Colton & Clarke; that the two cows had been before sold by Fitzhugh on his account, and the price thereof received; and that, as these personal chattels had been sold and delivered to him by Curtis, and as he had paid Curtis above 2000 dollars, which was the full value of this part of the property, he had a right to sell and dispose of the same at his pleasure.
    Fitzhugh answered, that he had no interest whatever in the subject in controversy: that he had held the personal property at Perton as the agent of Clarke, from the time of the sale and delivery thereof by Curtis to Clarke, until Clarke’s sale of the stock of horses &c. to Colton & Clarke, and since the last mentioned sale, he had held, and yet held, the stock &c. as the agent of Colton & Clarke, subject to their control. He had, as agent for Clarke, before his sale to Colton & Clarke, sold two cows.
    There was some evidence to shew, that Fitzhugh had an interest in Clarke’s purchase ; namely, that there was an agreement between Clarke and him, that he should be let in as joint purchaser with Clarke for one third of the subject, when he should attain to full age: but Fitzhugh’s deposition was taken, and he said there was no such agreement: and, upon the whole, the fact of Fitzhugh’s interest was left uncertain.
    It appeared, by documents exhibited with Clarke’s answer, that his sale of the stock of horses &c. to Colton & Clarke, was made on the 7th August 1838, that is, subsequent to the filing of Curtis’s original bill. The stock of horses &c. yet remained at Perton, in the care of Fitzhugh, as the agent of Colton & Clarke; and Fitzhugh had under his care, as agent of Clarke, all the other personal property at Perton, as well as that farm itself.
    At October term 1838, the defendants moved the court to dissolve the injunctions ; which motion was overruled; and leave was given to Curtis to amend and make new parties.
    Curtis filed a supplemental bill making Colton & Clarke parties, with a view to charge the stock of horses &c. which they had bought of Clarke, with the purchase money due to him. Colton & Clarke never answered this bill, nor did it appear that ahy process was sued out to convent them before the court.
    In the sequel, evidence was adduced b}1-Clarke to prove that he was in good credit, and held property sufficient, besides that which he had bought of Curtis, to pay him the whole purchase money; and that this was made known to Curtis, upon inquiry made by a friend at his instance, in September 1837.
    Of the items of set off to the amount of 1124 dollars, which he claimed against the first instalment, there was no distinct proof; only enouuh appeared to shew that some of them might be just.
    At April term 1839, the court, on motion of the plaintiff, ordered that all the personal property which had been sold by him to Clarke and was in his possession, arid all the wood, which had been cut down at Per-ton since Clarke had possession, and which had not been removed, should be sold, by a commissioner appointed *for the purpose, at auction, on a credit till the 1st October following; with directions to the commissioner, to take bonds and good security, for the proceeds, from the purchasers, and hold the same subject to the future order of the court.
    At October term 1839, the cause came on for hearing by consent of parties (as the record imported) both upon the bills against Clarke and Fitzhugh, and the supplemental bill against Colton & Clarke, the answers to the former bills, replications thereto, exhibits, depositions, and the report of the commissioner under the order of April 1839 —Whereupon the court declared, that according- to the agreement between Curtis and Clarke, the vendor retained a lien upon all the property sold, for the purchase money thereof, and Colton & Clarke, if purchasers at all of any part of the subject, were purchasers pendente lite, and therefore their purchase could not deprive Curtis of his lien : and that of the credits claimed by Clarke, he had only shewn himself entitled to his payment of 1000 dollars on the 22nd January 1838, which Curtis admitted; and therefore it was unnecessary to refer the case to to a commissioner to ascertain the amount of the purchase money remaining due; the court adopting a statement made at-the bar,, shewing that the true amount thereof was 5604 dollars 83 cents due the 22nd January 1838, and 6500 dollars due the 1st June 1839. Therefore, the court decreed, that the defendant Clarke should pay Curtis the sum of 12104 dollars 83 cents with interest on 5604 dollars 83 cents part thereof from the 22nd January 1838, and on 6500 dollars the residue thereof from the 1st June 1839 — And that, unless Clarke should pay the same to Curtis, on or before the 1st January ensuing, two commissioners, appointed for the purpose, should sell the farm called Perton, at public auction, on the premises, for cash, having given eight weeks previous notice by public advertisement, of the time, place and term of sale: that the commissioners, upon payment of the purchase money to them, should convey Perton to the purchaser or purchasers; and pay Curtis the money before decreed to him, or so much thereof as they should receive upon their sale; and if any balance of the proceeds should then remain in their hands, they should pay it to Clarke: and that the commissioners should make report of their proceedings to the court. And there being no exception to the report of the commissioner of the sales of the personal property under the former order of the court, that report was confirmed; and the commissioner was ordered to collect the moneys due on the bonds taken for the proceeds of sales of the personal property, in his report mentioned, and make further report of his proceedings.
    Upon the petition of the defendants, Clarke and Fitzhugh, this court allowed them an appeal from the decree.
    Daniel, for the' appellants.
    1. The bill should have been dismissed as to Fitzhugh : he declared, both in his answer and in his deposition, that he had no interest in the subject in controversy, and there was no proof which ascertained that he had. 2. The decree was premature as to Colton & Clarke. They had not appeared ; nor does the record shew, that any process had been served upon them, or even sued out, to convent them before the court. Even supposing that they are to be regarded as pendente lite purchasers, and that therefore it was unnecessary to make them parties, yet, as they were in fact made parties, they ought at least to have been served with process, in order to give them an opportunity of defending their interests: and they had a right to be heard on the main question in the cause; namely, whether Curtis, the vendor, had any lien on the personal chattels which he had sold and actually delivered to Clarke; much more, whether he had any such lien as overreached their rights as purchasers from Clarke for valuable consideration. 3. As there was no reason to doubt that Clarke’s means were adequate to pay the whole purchase money, the injunctions to restrain him from taking the full benefit of the property he had bought were unnecessary and oppressive: they ought then to have been dissolved: indeed, they ought never to have been awarded. It was clearly proved, that Clarke had sufficient and ample means to pay the purchase money, and that this was made known to Curtis as early as September 1837; which rendered his application for the injunctions the more unreasonable and vexatious. 4. The bill, so far as it sought specific execution of the contract in respect to the personal chattels, ought not to have been entertained at all. In general, a bill will not lie for specific performance of a contract for chattels; nor are such bills ever entertained, unless the chattels have some peculiar value, or unless it appear, that the party cannot be compensated in damages for the breach of the contract, and nothing can answer the justice of the case but a performance in' specie. 2 Tuck. Comm. 455; Pusey v. Pusey, 1 Vern. 273; Buxton v. I/ister, 3 Atk. 383; Adderley v. Dixon, 1 Sim. & Stu. 607; 1 Cond. *Eng. Ch. Rep. 311. Here, the vendor might, in an action of assumpsit, have recovered the full value of the chattels he had sold; and, certainly, they could not have had any peculiar value in the estimation of either party, especially of the vendor, who had sold them, and who asked that they should be sold again, and procured an order for the sale of them. Indeed, the personal chattels having been actually delivered to the vendee, the agreement as to them was no longer executory; it was an executed contract. 5. The decree supposes that the vendor had a lien on the personal chattels for the purchase money. But he had no lien on that part of the subject: none, certainly, by express contract: none impliable from his retention of the title ; for, though he had not executed a bill of sale of the chattels, he had delivered possession of them to the purchaser, and thereby parted with the title, and vested the absolute property in the purchaser, as effectually as if he had conveyed it by deed. To allow such a lien may be of mischievous consequence ; for possession is the great in-dicium of title in personals; and the world deals, and has a right to deal, with the holder of it, upon the faith that he owns the absolute property, unaffected by any secret, much more an implied, trust. Thus, Colton & Clarke purchased of Clarke a large part of the personal property which Curtis had sold him and put into his possession; and purchased, obviously, without any doubt of his clear title; for they actually paid him the price. 6. If the vendor had an equitable lien on the chattels, and the court might on the hearing have justly ordered a sale of them, it was wrong to make such an order on motion. Opportunity should have been given to the vendee to anticipate and prevent the sale, by paying the value of them, and so to have retained the power of fulfilling his contract of sale with Colton & Clarke. 7. The decree is erroneous in ordering Clarke to pay the whole purchase *money remaining due, without providing that Curtis should first make him a conveyance of the title, or at least tender a perfect conveyance. The conveyance by the vendor was a condition precedent to the payment of the purchase money : for it clearly appears, that the only variation, intended by the parties, of the terms of the sale to Clarke from those of the previous sale to him and his two associates, was in the time given for paying the first instalment, which had been appointed not by the written but by a verbal agreement; and the first contract expressly provided, that the purchase money should be paid when the vendor should have made to the purchasers a deed of the land, and a bill of sale of the personal effects, which instruments should be executed by him. And if the conveyance by the vendor was not a condition precedent to his right to demand payment of the purchase money, yet the decree should have provided, that the conveyance should be made and delivered con-temporarily' with the payment, instead of positively decreeing that the purchaser should pay the whole money without any assurance of the title. But the decree does not even provide that Curtis shall convey the title of the land to the purchasers at the commissioners’ sale, but only that the commissioners shall convey the title: now, the title is in him, not in them, and it can only pass .by' his deed, in which his wife ought to join upon regular privy examination. The want of such a conveyance may materially affect the price of the property in the market. 8. The decree is erroneous in charging Clarke with interest on the first instalment from the 1st January 1838. He ought to have been charged with interest only from the day appointed for the payment of that instalment by the second agreement, which is the agreement to be enforced against him. The decree is, in effect, a specific execution of the first agreement, which had been canceled. Lastly, the decree is erroneous in excluding x'the set offs, claimed by Clarke against the purchase money, to the amount of 1124 dollars, without a regular inquiry' into the justice of them; and yet more clearly erroneous in not giving Clarke credit for the proceeds of sales of the personal property, which had been sold at Curtis’s instance, and he was therefore bound to take the proceeds as part pay'ment. An account should have been directed to ascertain those credits.
    Robinson, for the appellee.
    1. The evidence renders it probable, that Ritzhugh, notwithstanding his disclaimer of interest in the controversy, was to have an interest in Clarke’s purchase; but if he had no such interest, yet he was Clarke’s agent, having under his care both the land and the personal property; the active agent in cutting the fire wood on the land, and disposing of the personal chattels. If Curtis had a right to ask the interference of the court to prevent the waste of the real property, and the dispersion of the personal, Ritzhugh was properly made a party: he was peculiarly the party on whom the preventive justice of the court was to act. 2. As to Colton & Clarke, it is doubtful whether Clarke’s sale to them was a real transaction, or only' a colourable sale to disappoint Curtis of his claim to subject that part of the property to the debts due to him: for there was no visible change of the possession: the stock remained on Clarke’s land, under the care and control of the same person who was Clarke’s agent. But suppose the sale to Colton & Clarke a real sale, they were pendente lite purchasers ; therefore, there was no necessity to make them parties; and if the plaintiff need not have made them parties, there was no necessity to convent them before the court to hear the decree, which bound them whether they were before the court or not. Besides, the cause was heard by consent of parties, not only upon the bills against Clarke and Ritzhugh, but on the bill against Colton & Clarke. Neither *have they appealed from the decree. 3. The propriety of the injunctions depends on the other questions,' whether Curtis was entitled to specific execution? and whether he had a lien on the real and on the personal subject sold, for the purchase money? If he had, he surely had a right to ask the interference of the court to prevent the purchaser, and his agent, from denuding the land of the wood which constituted the chief ingredient of its value, and so impairing the security which the lien on the land afforded him, and from selling and dispersing the personal property, and thereby destroying the security which it afforded. This lien was the only security the vendor had. In this view, it is immaterial whether Clarke had, or had not, ample means, independently of the property he had bought of Curtis, to pay the purchase money: suppose he had, that did not give him a right to impair, much less to destroy, the security which equity gave to the vendor. 4. The vendor had a right to specific execution of the whole contract. That he had a right to specific execution, so far as the agreement was for the sale and purchase of the land, has not been, and cannot be, questioned. But the agreement was for the sale and purchase of the land and the personal chattels upon it, for a gross sum of 1300 dollars, without discriminating' what proportion of that sum was the price to be paid for the real, and what for the personal part of the subject. Neither the party, nor the court, could make such discrimination. The vendor was obliged to ask specific execution of the whole contract, or to forego specific execution altogether; and the court must decree specific execution of the whole contráct, or deny it as to the land. Upon authority as well as on principle, the bill, and the decree, for specific execution of the whole contract, was proper and just. Hook v. Ross, 1 Hen. & Munf. 310; Dakin v. Cope, 2 Russ. 170; 3 Cond. Eng. Ch. Rep. 66. But if this were an agreement for the sale of personal chattels *only, the authorities are clear, that a bill for specific execution of such an agreement may be maintained by either vendor or purchaser, provided the agreement is to be completed bj' subsequent acts of the parties. Buxton v. Bister, cited' by mr. Daniel, is itself an authority in point to this purpose. Wright v. Bell, Daniell’s Bxch. Ca. 95; Doloret v. Rothschild, 1 Sim. & Stu. 590; 1-Cond. Eng. Chan. Rep. 302. Here, the plain intent was, that the contract was to be completed by subsequent acts of the parties; the purchaser was to pay the purchase money, and the vendor was to convey the subject by deed. In Adderley v. Dixon, cited by mr. Daniel, the court after shewing, that in contracts for chattel interests which are not to be immediately executed, a bill for specific execution will lie for the purchaser, entertained a bill for the execution of such an agreement, on behalf of the vendor; saying, it had been settled by repeated decision, that the remedy in equity must be mutual, and that where a bill will lie for the purchaser, it will also lie for the vendor. In the present case, the delivers" °f possession of the personal property, was not, because it plainly was not intended by the parties to be, an execution of the contract as to that part of the subject. 5. Then, as to the lien of the vendor on the personal part of the property: this is not a question between the vendor and the creditors of the vendee or fair purchasers from him, but between the vendor and the vendee himself; for the pendente lite purchasers from him can have no better right than he himself, to hold the property exempt from the lien, if it exists. As between the vendor and vendee, the lien did exist. The plain intent of Curtis’s contract of sale to Clarke was, that Curtis should retain the title of the whole property, personal as well as real, till the purchase money should be paid; in other words, that the title should be held as security for the payment. There was nothing to prevent the parties from making *such an agreement; and if such a lien was expressly reserved, or plainly results from the contract, there is nothing which should prevent a court of-equity from giving it full effect, in regard to the personal as well as the real subject. Williams v. Price, 5 Munf. 507; Ed. Seaforth’s case, 19 Ves. 507. Curtis’s delivery of possession of the personal property was not absolute: it had reference to the agreement, and its effect is to be measured by the terms and intent of the agreement. A vendor of goods, who has actually delivered them to the vendee, yet upon condition that he pay the price, retains, as against the vendee, a lien on the goods for the price, which both courts of law and courts of equity will enforce; each, however, in its own way. At law, the vendor may maintain trover, detinue, or replevin; Ervine v. Dotton, 6 Munf. 231; D’Wolf v. Babbett, 4 Mason 289; Palmer v. Hand, 13 Johns. Rep. 434; Ward v. Shaw, 7 Wend. 40<* ; Hussey v. Thornton, 4 Mass. Rep. 405; Marston v. Baldwin, 17 Id. 606; Barrett v. Pritchard, 2 Pick. 512; Whitwell v. Vincent, 4 Id. 449; Reeves v. Harris, 1 Bailey 563; Copland v. Bosquet, 4 Wash. C. C. R. 588; Barrow v. Coles, 3 Camp. 92; Townley v. Wright, 4 Adolp. & Ell. 58; 31 Eng. C. E. Rep. 23. Equity lays hold of the goods themselves, or the proceeds thereof, wherever it finds them, and restores or applies them to the payment of the price; varying the mode of relief, according to the circumstances of the case. Haggerty v. Palmer, 6 Johns. Ch. Rep. 437; Keeler v. Field, 1 Paige 312. In our case, the court has properly adapted the relief to the case. 6. Whether it was regular or not, to order the sale of the personal property on motion, is immaterial now; the sale was in fact made; it was not objected to at the hearing ; and the decree holds the proceeds subject to future disposition. 7. Curtis’s first contract to sell the property to Clarke and his two associates, fairly construed with reference to the other part of the transaction, did not import that, the conveyance should *first be made by the vendor, and that the purchase money should thereupon be paid by the vendees: such a construction would be incompatible with the arrangement by which a certain time was appointed for the payment of the purchase money by instalments; whereas no time was appointed for making the conveyance. But the second agreement, for the sale to Clarke, is explicit, that Curtis should execute a deed to Clarke for the property, whenever he should make such payments as they agree upon. As to the objection, that the decree does not require that Curtis shall make the conveyance to Clarke upon his payment of the purchase money, or, in case of sale by the commissioners, to the purchasers at such sale, the decree is interlocutory, and may be corrected in that particular. 8. The decree is clearly right in charging Clarke with interest on the first instalment from the 1st January 1838, when that instalment was to be paid under the first agreement. Clarke was, by the second agreement, to pay exactly the same price which by the first agreement he and his associate purchasers were to pay ; and there was no other way to give the vendor such equal amount of purchase money, but by charging Clarke with interest on the first instalment from the time when the original joint purchasers were to pay it. Then, lastly, as to the credits to which Clarke was entitled; his claim to set offs for 1124 dollars, was a mere question of evidence; and the court rightly held that there was no proof of the set offs. His claim to a credit for the proceeds of sales of the personal subject under the previous order, seems not to have been asserted at the hearing'; and the court did not dispose of the money. The claim is asserted here for the first time; and this court may, if it think proper, dispose of it. According to Clarke’s pretensions, a great part of that money belongs to Co ¡ton & Clarke.
    
      
      Vendor and Vendee — Conveyance of Land and Personalty — Gross Sum — Lien.—Where a lease is sold with certain personal property thereon for a gross sum for both and in the writing transferring the lease and the personal property, a lien is reserved for the payment of the purchase money, as between the parties to the contract of sale and those having actual notice of it, the lien will in a court of equity be declared to be valid and will be enforced by a sale of both real and personal property for the purchase money of both. Cole v. Smith, 24 W. Va. 293, citing Clarke v. Curtis, 11 Leigh 559. The principal case is also cited in Bank v. Hupp, 10 Gratt. 41; McComas v. Easley, 21 Gratt. 28, and note; McKay v. Ripley, 42 W. Va. 27, 24 S. E. Rep. 687.
    
    
      
      Tlie following: was the statement to which the decree referred—
      “Amount debt due 1st January 1838.6,581.00
      “Interest on $6581 to 22nd January 1838. 23.83
      $ 6,601.83
      “Received 22nd January 1838 . 1,000.00
      $ 5,604.83
      “Amount due 1st J-une 1839. 6,600.00
      $12,104.83.”
      It will he observed, that the court considered Clarke chargeable with interest on the first instal-mentlfrom the 1st January 1838, because under the first contract that instalment was to be paid on that day, and because under the second contract, Clarke was to pay the same price which he and his associates were to pay under the first agreement. — Note in Original Edition.
    
   *TUCKER, P.

Various objections have been made to this decree, of which I shall proceed to dispose as succinctly as may be.

1. On the part of Eitzhugh, it is contended that he was originally improperly made a party, and that the bill as to him ought to have been dismissed. This objection is premature, as there is not yet a final decree in the cause. Until such decree be rendered, the plaintiff may go on with his proofs, and peradventure establish some ground of charge against him. In the present state of the record, I am by no means satisfied that he was improperly made a part}'; for he seems to have been an active agent in cutting timber and wasting the premises; and he may, perhaps, be made chargeable for the eloigning of the personal property between the execution of the first and second contracts. The uncertainty as to his age does not permit us to say how far he may or may not be bound.

2. It is objected, “that no specific execution of a sale of personal property can be enforced; and that no lien on the personal property for the purchase money exists, especially when money has been paid by the purchaser, the possession delivered to him, and he is solvent.” As to the first: the contract being for the sale of real and personal estate together for a lumping price, the specific execution cannot be decreed as to the real estate alone; and as there is clearly jurisdiction as to that, it must carry with it jurisdiction as to the personalty also. As to the second point: it is unimportant whether or not an implied lien exists, for in this case there is ample evidence that Clarke was not to have a title until the prarchase money was paid. This is obvious, both under the first and second contafct. By the first contract, indeed, which is very loosely worded, it is said, that the price was to be paid “when a deed should be made.” But the parties certainly did not design this as fixing the time of payment: Eor the x'vendees would not have been willing to pay up the cash the day after the contract, if a deed had then been tendered. Both parties contemplated a credit, and bonds were accordingly given for two instalments, payable in January 1838, and June 1839. Here then was a definite time appointed for payment, and no fixed time for making the deed; and where that is the case, the latter is not a precedent condition to the former. Bailey v. Clay, 4 Rand. 346. Besides it is clear, that by this contract, the delivery of the possession of the personal property, was not designed to operate to convey the title, as it is provided expressly, that it was to be conveyed by bill of sale. Under the second contract the retention of title is plain. Curtis agreed to execute a deed for the property to Clarke “whenever he should make the payments they should agree on.” He was not then to have the propert}' till he paid the money. A lien, therefore, clearly existed, and as to Clarke the sale was properly directed.

3. It is objected, that Colton & Clarke have purchased the property, and the plaintiff has not proceeded regularly as to them. That is nothing to Clarke; it does no injury to him. He violated good faith by attempting to sell to Colton & Clarke, , when no bill of sale had been made to him as the contract provided for: I say attempting; for it may admit of question, whether, as the goods were still left at Perton, a constructive change oi possession should be implied, against the rights of Curtis, from the mere order to deliver them.

4. It is objected, that the court has refused Clarke credit beyond his payment of 1000 dollars. I think it properly did so, upon the evidence in the case: yet there was enough in the evidence to justify sending the account to a commissioner. The failure to direct an account was therefore an error. So also was the omission to apply the proceeds of sale of the personalty to the discharge of the purchase money pro-tanto.

*There is a further error in directing a sale of the lands without having required a proper deed to be previously executed by Curtis and wife, since a sale under such circumstances might have led to a sacrifice.

I think too, the sale should have been for only one half cash and the other half on a credit of twelve months. And the commissioners should have been directed to report their proceedings to the court for its confirmation, instead of paying over the purchase money without the previous ratification of the sale.

Eor these errors, the decree must be reversed and the cause sent back for further proceedings, according to the principles here declared.

I have omitted to observe, that the decree in this case, though apparently founded upon the original, instead of the substituted contract, is substantially correct; since the price was identical in both, and though the time of paying the first instalment was varied, no change was made as to the time from which it was to bear interest. The amount due therefore would be the same under both.

BROOKE, CABELL and ALLEN, J., concurred.

STANARD, J.

This case is, in my opinion, a fit one for relief in equity. The circumstance that the contract sought to be carried into specific execution, embraced personal as well as1 real estate, does not preclude* the court of equity from giving such relief. The principle on which that jurisdiction is exercised, does not depend on the subject of the contract being real or personal, but on the adequacy of the remedy at law to give full and effectual relief. When the subject of the contract is real estate, generally if not universally, such full and effectual relief can be obtained in a court of equity only: whereas, when the subject is personalty, damages at law, in general, will afford the party injured adequate *redress; but when this is not so, equity has jurisdiction to enforce specific execution of a contract for personalty, on the same principle on which the exercise of such jurisdiction when the subject of the contract is realty, is vindicated. Where (as in the present case) the subject of the contract of sale is mixed of real and personal estate, and a gross price to be paid, the jurisdiction is free from all reasonable doubt. Had the purchaser brought his suit for specific performance, there could not have been a doubt of the jurisdiction: for he, certainly, had not an adequate remedy at law. It is true he had possession of the personalty; but oh that no separate value had been fixed by the parties. They, probably, made very different estimates of the value of it; and the consequence would be, if he were driven to a suit at law for damages for the failure of the vendor to convey, that he would be exposed to a claim for the estimated profits of the land which he had received and held as his own, and, in effect, made chargeable with an estimated value of the personal property, which might be equally at variance with the estimates of both contracting parties. Now, no principle is better settled than that the right to call for specific execution of a contract is reciprocal; when one of the contracting parties may call for specific execution, the other may too. In this case, the vendor’s right to the aid of the court for specific execution, is vindicated by the further consideration that the circumstances of the case made it peculiarly fit for that jurisdiction. It is the case of a contract for land, of which there had been part performance, by surrender of possession, and payment of a portion of the purchase money; and where, in respect to the separate contract of Clarke, the purchaser in possession, there was no note in writing signed by him; and, in respect to the first contract, the obligation of the first three purchasers had been cancelled, and no remedy remained for the vendor against those parties *as obligors. In such a case, the remedy at law was not only inadequate, but at best precarious and doubtful.

The vendor having properly resorted to equity for relief, what is the extent of his claim? The measure of Clarke’s responsibility as to amount, is the purchase money which was to be paid under the first contract; namely, 6581 dollars with interest from the 1st January 1838, and 6500 dollars with interest from the 1st June 1839. That Curtis was to receive from Clarke, under the second contract, as much as he was entitled to claim under the first contract, and that the only variation from the first contract was a change, not in the amount of purchase money but in the time of making the first payment, is satisfactorily established by the parol evidence, by the written engagement which Clarke took from Curtis to convey the property to him when the payments should be made, and the fact distinctly stated in Clarke’s answer, that Curtis was willing to cancel the first contract altogether, and Clarke insisted on it. It is not to be credited, that Curtis would be willing to cancel a contract on which Clarke and two others were bound to him, in order that he might make a sale to Clarke alone for a smaller price, while Clarke was insisting on the contract by which he and two others were bound for a larger price. The decree is clearly right in this particular.

The opinion I have expressed places the right of the vendor to relief in equity on a foundation, of which his retention of a lien on the personal property for the purchase money, forms no part. I am strongly inclined to think, that no such lien remained: that the delivery of the personal property, and the execution of the bonds by the purchasers under the first contract, passed the full property in that part of the subject to them, without any further act, and no lien upon it for the purchase money existed after the title in and possession of it had *passed to the purchasers. The new contract made no change in this respect. It only converted the joint title in and possession of the personalty, before held by Clarke in common with the other original joint purchasers, into the sole title and possession of Clarke, and the joint responsibility of the original joint purchasers into a sole responsibility of him alone. But upon this point, my brethren hold a different opinion, and I readily acquiesce. As to all the other points, I concur with them.

The decree of this court declared, that the appellee Curtis properly sought and was entitled to relief in a court of equity, and that the measure of his claim, under the contract by which the appellant Clarke was substituted as sole purchaser, in place of him and his associates in the original contract, was the amount stipulated to be paid by the original contract, viz: the sum of 6581 dollars, with interest from the 1st January 1838, and 6500 dollars, payable on the 1st June 1839. That the whole subject purchased, real and personal, remained in the hands of the appellant Clarke, chargeable with the purchase money; and though the precise date at which a part of the first mentioned sum of 6581 dollars was payable, is not ascertained, yet that part with interest “thereon from the 1st January 1838, together with the rest of the purchase money, was due and payable at least as early as 1st June 1839. That the court below erred in decreeing the sale of the personal property, on the mere motion of the appellee, before the case was heard and his title to relief adjudicated, and before the amount of the lien thereon had been ascertained by a liquidation of the appellee’s claim ; and if that decree had not been executed, and the propertj’- sold under it, and in all probability dispersed, it would be proper to reverse that order, annul the sale under it, and order *the restitution of the property ; but as such a measure would afford the appellant Clarke, or those entitled to the property, no adequate redress, the appellee should be held accountable for the amount of the sales, he taking the benefit thereof, and his accountability therefor credited, whether the proceeds of the sales be collected or not, against the purchase money due from the appellant Clarke on the contract, unless in the further progress of the case, the title of Colton & Clarke to the propert3T sold under the said order should be asserted and sustained. That before the court should have decreed the payment of the purchase money, the just balance thereof should have been liquidated, by an account in which the appellant Clarke should have credit (on the condition above expressed) for the amount of the sales of the personal property under the said order, and such other discounts, payments or set offs, as he might shew himself entitled to. And that when the balance due of the purchase money should have been so ascertained, the court should have decreed, that the appellee should prepare and tender a conveyance with general warranty from himself and wife to the appellant Clarke; and if he, on such tender, should pay the balance of the purchase money, then the conveyance should be delivered; and if he should not pay it, then the conveyance should be deposited with the clerk of tne court, to be delivered to Clarke, should he pay the said balance of purchase money before the sale ■of the land embraced by the contract, or to be held for the use of the purchaser under the decree of the court; and on such default of payment by the appellant Clarke on the tender of the deed, it should be further decreed, that the said appellant pay to the appellee the balance ascertained as aforesaid, and that the land embraced by the contract should be sold on reasonable notice, on the terms that the purchaser pay one half of the purchase money -in cash, and the other in ^twelve months, the title to be retained as a security therefor, and the land subject to re-sale under the further decree of the court, to raise the amount of the credit instalment in default of the payment thereof. Therefore, the decree, so far as it conflicted with the principles here declared, was reversed, and in all things else affirmed; and the cause was remanded to the circuit superior court to be further proceeded in according to the principles here declared.  