
    Tompkins and Another v. Powell.
    July, 1835,
    Lewisburg.
    (Absent Bbooke and Garb, J.)
    Purchaser without Notice of Equities — Case at Bar.— A. purchases land with notice of B.’s equitable right to have a conveyance of the same land, under a prior purchase from their common vendor; and then A. sells the land to C. and the vendor mates a conveyance to O. who has no notice of B.’s equity: Held, O. the fair purchaser without notice shall be protected in equity, but A. is personally responsible to B. for the value of the land.
    James Garnett sold and conveyed to Thomas Powell, 1000 acres of land, part of a large tract then held by him, lying on the Ohio river in Mason county, Virginia, to be laid off by lines very exactly indicated in the conveyance. The conveyance was of 1000 acres, neither more nor less. But when the survey came to be made to ascertain the parcel so sold and conveyed, owing to some inaccuracy of the survey-our, or to his misconception of, or inattention to, the lines indicated in Garnett’s conveyance, a survey was made which comprised about 1230 acres; that is, 230 acres more of Garnett’s land *than he had sold and conveyed to Powell, lying below the true 1000 acre tract.
    Of the 1000 acres so sold and conveyed by Garnett to Powell, Powell sold and conveyed 270 acres to Gilliland; 178 acres to M’Allister; 94 acres to Eaught; and 187 acres to Burr Powell to be laid off at the lower end of. the tract; so that there remained of the 1000 acres to which T. Powell was entitled under Garnett’s conveyance, only about 271 acres; and he contracted to sell the residue to Stockton at 12 dollars the acre. The conveyance of the parcel of 187 acres to Burr Powell, following the erroneous survey of the land conveyed by Gar-nett to T. Powell, in describing the bounds, placed the 187 acres on Garnett’s land, without the bounds of the 1000 acre tract; that is, at the lower end of the erroneous 1230 acre survey.
    A survey was made of all the parcels previously sold by T. Powell to the several purchasers in order to ascertain the exact quantity of the residue sold to Stockton. In making this survey also, the surveyour followed the erroneous survey that had been made of the land conveyed by Garnett to T. Powell, instead of the lines designated by Garnett’s conveyance, which survey included 1230 acres as before mentioned, namely, 230 acres of Garnett’s land, adjoining the lower line of the parcel of 1000 acres which he had conveyed to T. Powell; —and laying off the whole parcel purchased by Burr Powell, and part of the parcel purchased by Eaught,- at the lower end of the erroneous survey, he placed Burr Powell’s 187 acres and part of Faught’s 94 acres on Garnett’s land, without the true bounds of the 1000 acre tract, which Garnett had conveyed to T. Powell; and he made the residue of the tract sold to Stockton, to contain 501 acres.
    In the articles of agreement between T. Powell and Stockton, for the sale and purchase of the residue of the tract not previously sold, the residue had been estimated *at only 250 acres. But the survey to ascertain the exact quantity having been made, and Stockton, being thereby informed, that the survey originally made of the land conveyed by Garnett to T. Powell, contained 501 acres over and above the parcels sold by Powell to the previous purchasers, made a new bargain with Powell, by which he gave Powell a horse, saddle and bridle, (in addition to the purchase money he had stipulated to pay for the residue of the land, according to the estimate of the quantity in the articles for the sale thereof, that is, 250 acres at 12 dollars the acre), for all the land owned by Powell over and above the estimated quantity. Thus, if the rights of the parties were to be ascertained by the erroneous survey originally made of the land sold by Garnett to Powell, Stockton got, for a horse, saddle and bridle, 251 acres of land. And then, Stockton sold- all the land he had thus contracted to purchase of Powell, to Tompkins; and Powell at Stockton’s instance, made a conveyance of the same to Tompkins, describing the land by the bounds indicated in the erroneous surveys, and as containing 501 acres.
    Burr Powell exhibited a bill in the supe-riour court of chancery of Greenbrier, against Garnett and Thomas Powell,- — ■ Gilliland, M’Allister and Eaught, the purchasers from T. Powell previous to B. Powell’s own purchase, — and Stockton and Tompkins, the purchasers of the residue of the land; setting forth the facts above stated, which the several conveyances and surveys (exhibited with the bill) ascertained beyond doubt: charging Stockton and Tompkins with full notice of all the sales and conveyances of parcels, previous to their purchase of the residue; with notice that T. Powell had bought only 1000 acres of land of Garnett, that he sold the parcels of 270 acres to Gilliland,' 178 acres to M’Al-lister, 94 acres to Eaught, and 187 acres to the plaintiff to be laid ofE at the lower end of the tract really sold by Garnett to T. Powell; with notice of the *mistake in the deed from T. Powell to the plaintiff, by which the 187 acres conveyed to him, instead of being parcel of the land which T. Powell had bought of Gar-nett, was in fact, land belonging to Garnett; with notice, in short, of the plaintiff’s right to 187 acres of land to be so laid off from the true 1000 acre tract: and praying, that accurate surveys should be made; that the lands sold to Gilliland, M’Allister and Eaught should be laid off for them respectively; that, then, the 187 acres sold to the plaintiff, should be laid off for him, at the lower end of the true 1000 acre tract; and that Tompkins should be compelled to release and convey to the plaintiff the 187 acres to which he was entitled.
    Stockton and Tompkins, in their answers, severally denied all notice of the equity alleged in the bill, and pleaded that they were fair purchasers without notice. T. Powell, in his answer, averred that Stockton purchased with full notice of the rights of the plaintiff, and of the other three purchasers previous to himself. Garnett’s answer merely showed the particulars of the contract between him and T. Powell, and of his conveyance of 1000 acres to him, by lines exactly and clearly indicated in his conveyance thereof. And the bill was taken pro confesso as to the other defendants.
    It was, in the opinion of the chancellor and of this court, clearly proved, that the defendant Stockton purchased from T. Powell, with lull notice of the plaintiff Burr Powell’s equity. But there was not the least evidence to prove that the defendant Tompkins had any such notice before his purchase from Stockton was completed.
    The chancellor, on the hearing, declared, that the plaintiff was entitled to his 187 acres of land to be laid off, at the lower end of the true 1000 acre tract conveyed by Gar-nett to T. Powell; directed that it should be laid off by the surveyour, so as to give him a fair proportion of hill and bottom land; and decreed, that *the defendant Tompkins should deliver possession thereof to him, so soon as it should be ascertained by the survey, and make a conveyance of the same to him, with special warranty, against himself and all persons claiming under him.
    Upon the application of the defendants, Tompkins and Stockton, this court allowed them an appeal from the decree.
    Johnson and Summers, for the appellants.
    Smith, for the appellee.
    
      
      The principal case Is cited and approved in National Bank v. Harman, 75 Va. 609. See Carter v. Allan, 21 Gratt. 241, and note.
      
    
   TUCKER, P.,

delivered the opinion of the court — That the appellant Tompkins, appearing by the record to have been a purchaser without notice, and to have paid his purchase money, and obtained his deed, before he had notice of the appellee’s rights, or of the error in the deed from Thomas Powell to him, was entitled to the protection of the court of equity, and the bill ought to have been dismissed as to him ; leaving to the parties injured, to seek their redress from the appellant Stockton, for his fraud in selling to the appellant Tompkins, after having had full notice of the error aforesaid, and of the rights of the appellee, without communicating those facts to his vendee. That a purchaser, who has notice of the rights of another, and sells to a third person without giving notice thereof to him, so as to place the subject of controversy beyond the reach of the right owner, becomes personally responsible for the demand. That, therefore, the decree was erroneous as to the appellant Tompkins; that the same should be reversed, with costs, so far as it affected him ; and that the cause should be remanded to be further proceeded in, as to Stockton. Decree reversed, and cause remanded.  