
    *Glenn v. Clark & als.
    June Term, 1871,
    wytheville.
    1. Wills — Equitable Election. — C by bis will gave a farm by name to M, and he gave another farm by name to G, the latter farm being the most valuable ; and G accepted the devise. The farm given to M was in fact the property of G, and had been sold by his father to C, when G was but twelve years of age. G having elected to take the farm given to him, must relinquish to M his claim to the farm devised to her.
    2. Chancery Practice — Decree between Co-Defendants,  —Where the equities between the defendants do not arise out of the pleadings and proofs between plaintiff and defendants, there can be no decree between co-defendants.
    3. Same — Same—Case at Bar. — M having filed a bill to enforce her claim to the land left to her by C, and made G and the executor of 0 defendants, and G, in his answer, having repudiated the sale of his land by his father, and insisted that the will of C did not raise a case of election; but that he was entitled to hold both farms; though it may be that a part of the purchase money for his land is still due from C’s estate, that question cannot be considered in this case, and there can be no decree between these co-defendants upon it.
    William G. Clark died in July or August 1861. By his will, which was duly admitted to probate, he devised to his sister Mary Clark, for her life, three tracts of land in the county of Washington, called respectively the Home Place, the Hogue Place, and the “Double Cabin Place,” and he gave these three tracts, at the death of Mary Clark, to his nephews James C., Peter J., and Thomas Hope. And he gave to his nephew Benjamin Glenn a farm called the Callison farm.
    It appears that the tract called Double Cabin Place had been given to Benjamin Glenn by his uncle James 'x'Clark; and that James C. Glenn, the father of Benjamin Glenn, had sold the land to Wm. G. Clark in 1848, when Benjamin was about twelve years old; and said Wm. G. Clark, and his devisees had been in possession of this land under this sale for some eighteen years. The land was sold for $360, and it is probable that a part of the purchase money was still due. After the death of Wm. G. Clark, Benjamin Glenn took possession of the Callison farm, devised to him by Wm. G. Clark, and the bill alleges, and the answer seems to admit, that he has sold it. He certainly accepted the devise.
    Benjamin Glenn instituted an action of ejectment against Mary Clark to recover the Double Cabin tract of land, and obtained a judgment thereon in April 1867; and in March 1868, Mary Clark, James C., Peter J. and Thomas Hope, obtained from the judge of the Circuit court of Washington county, an injunction to the judgment. The bill, after setting out the foregoing facts and charging that after Benjamin Glenn came of age, he permitted Wm. G. Clark to remain in possession of the land, and in fact not only acquiesced in the sale, but actually ratified it, says that they understand Benjamin Glenn claims a balance as due him for the land; and that if there is, it is due from the estate, which is ample to pay it, and it should be paid by the executor and not by the plaintiffs. They are advised, that as Benjamin Glenn has accepted the devise to him of the Callison place, he cannot dispute the devise to the plaintiffs, and it was his duty to prosecute his claim in the courts for the balance due him.
    They made Benjamin Glenn and Wm. P. Barr, as executor of Wm. G. Clark, parties defendants to the bill, and prayed that Glenn be restrained from ousting the plaintiffs from the possession of the land,' and that he be compelled to convey the said tract of land to them according to their respective rights therein; that if there *be any of the purchase money due the said land, that the same be paid by the said executor, and for general relief.
    Benjamin Glenn demurred to the bill, and also pleaded the statute of frauds and perjuries. He also answered: He says he does not believe that any contract was made between James S. Glenn and Wm. G. Clark, that they regard as binding. Respondent knew that the property had been devised to him by his uncle, James Clark, and did not consider that Wm. G. Clark had any contract for it, nor did he ever claim that he had. He never called on respondent to convey it, nor did he ever offer to pay, and he did not pay respondent one cent for the property. He never acquiesced in the holding of Wm. G. Clark and those claiming under him, by way of acknowledging any right in him, for he never asserted any right in it to respondent. He denies that the will of Wm. G. Clark requires him to elect between the devise to him and his own land. He holds what Wm. G. Clark devised to him, and he holds the Double Cabin lot because it belongs to him. He cannot account for the disposition made by his uncle, Wm. G. Clark, of the Double Cabin place, to which he well knew he had no title, and complainants admit that a balance is due to respondent on the contract they allege was made with James G. Glenn. He says possession of the land had been delivered to him by the sheriff in October, 1867, and files the writ and return. He says he would at one time have taken the sum of $360 with interest from 1848, and proposed to W. E\ Barr, the executor of Wm. G. Clark, to do so, if he or Mary Clark would give him a note for the amount, but the executor declined.
    The deposition of Wm. If. Barr, the executor of Wm. G. Barr, was filed in the cause by the plaintiffs. He states that in 1862, in an interview between himself and James and Benjamin Glenn, James Glenn informed him that there was a balance still due for the Double *Cabin tract, and he was requested to settle it, and that Benjamin Glenn expressed himself willing to convey the land, if the balance stated by James Glenn to be due upon the land was paid. Witness said he would consult the counsel of Clark’s estate, and would do according to his instruction. Upon consulting the counsel he was instructed not to pay the balance, as witness would be liable for it, as the statute of limitation barred it. Of this, he informed James Glenn; but told him that there was no disposition to evade the payment, and advised him to sue' for it. And he afterwards told Benjamin Glenn that he was authorized to state to him he would be paid the balance due him by the parties interested, as his aunt, Mary Clark, and the Hopes were desirious to avoid a family suit. He replied he had no compromises to make, but to get the farm, as he thought he was entitled to it. This conversation was after the action of ejectment had been instituted.
    There was other evidence as to Benjamin Glenn’s willingness to make the deed to Wm. G. Clark in his lifetime, which it is not necessary to state; and it was proved that the devise to Benjamin Glenn was much more valuable than the Double Cabin tract.
    The cause came on to be heard on the 17th of September 1868, when the court held that Benjamin Glenn having accepted the devise pf the Callison place under the will of Wm. G. Clark, could not assert a claim to the Double Cabin place; and he was directed to deliver possession of it to the plaintiff, Mary Clark, within thirty days from the date of the decree, and that he convey the same to Mary Clark for life, and after death, to James C. Peter and 'Thomas Hope. Prom this decree Benjamin Glenn obtained an appeal to this court.
    Baxter, James C. Sheffey and J. T. Campbell, for appellant.
    B. R. Johnston and John A. Campbell, for the appellee.
    
      
       Wilis — Equitable Election. — For further instances of equitable election in keeping with the principal case, see Upshaw v. Upshaw, 2 H. & M. 381; Dixon v. McCue, 14 Gratt. 540; Gregory v. Gates, 30 Gratt. 83, and foot-note; Kinnaird v. Williams, 8 Leigh 400; Moore v. Harper, 27 W. Va. 362; Bennett v. Harper, 36 W. Va. 546, 15 S. E. Rep. 143.
    
    
      
       Chancery Practice — Decree between Co-Defendants.— See Ould v. Myers, 23 Gratt. 383, and. foot-note, where cases in point are collected. In addition, see Donnally v. Hewitt, 14 W. Va. 741; Vance v. Evans, 11 W. Va. 342; Alley v. Rogers, 19 Gratt. 366; Hoffman v. Ryan, 21 W. Va. 416; Tavenner v. Barrett, 21 W. Va. 656; Yates v, Stuart, 39 W. Va. 124, 19 S. E. Rep. 423.
    
   *STAPLEPS, J.

The principle of election is a well established doctrine of courts of equity. It is said to be founded upon the equitable ground of an implied condition that he who accepts a benefit under an instrument, must adopt the whole of it, conforming with all its provisions, and renouncing every right inconsistent with them. A party availing himself of such instrument in one particular, must not defeat its operation in another. It is also well settled that where a party disposes of the absolute right in property in which he has but a limited interest, he necessarily shows an intention to extinguish all other conflicting adverse interests, whether present or future, direct or contingent. 1 Heading Cases in Equity 400; 2 Story Equity Jur. g 1096.

According to these familiar principles, the appellant having accepted the devise of the “Callison Barm,” must be held to have ratified the devise to the appellees of the “Double Cabin Barm,” and is thereby estopped to assert title or claim to the latter. This was conceded in the petition, and in the argument of appellant’s counsel before this court. It is insisted, however, that the appellant is entitled to the purchase money contracted to be paid for his land, and that the court below ought to have rendered a decree accordingly in his behalf. The practice of decreeing between co-defendants is not much favored by the courts. There is an increasing indisposition to extend that practice further than it has already been carried.

In Taliaferro v. Minor, 1 Call. 456, the Court of Appeals reversed the decree of the court below upon the ground that the pleadings raised no issue between the co-defendants as to the state of the accounts between them. And in Blair v. Thompson, 11 Gratt. 441, Judge Allen laid down the rule to be, “where the equities between the defendants do not arise out of the pleadings and proofs between plaintiffs and defendants, there can be no decree between co-defendants.”

*In this case, the appellees in their bill alleged that James Glenn, the father of the appellant, sold the land in controversy to the testator Clark, and that this sale had been ratified by appellant upon arriving at maturity; and in any view the appellant, by accepting the devise of the Callison estate, had ratified the devise to the appellees. In his answer the appellant controverted all these positions, denyin'g the sale — denying the ratification on his part — insisting that the transaction did not present a case of election, and claiming title to the estate devised to the appellees. These are the issues, and the only issues, presented by the pleadings, presenting questions for adjudication between appellant and appellees, and not between appellant and the estate of William Clark.

It is very true, that a legacy will not be deemed a satisfaction of a debt, where the legacy and debt are different in their nature, as where the testator is indebted by bond, and bequeaths to his .creditor an interest in land. If the appellant desired to invoke this principle in his behalf, and to assert a claim to the purchase money, he should have adopted a course of proceeding calculated to raise that question, upon a direct issue between himself and the executor of William G. Clark. In such proceeding, the executor would have been afforded an opportunity of contesting the claim, of relying upon the statutory limitation, of establishing payments, and of showing, it may be, that the devise to the appellant was a satisfaction of the debt due him from Clark’s estate. No such issues, however, were made; none were asked. No settlement of the executorial accounts was required to ascertain the sufficiency of the assets, and the court could make no decree affecting them.

The appellant not only did mot assert any claim to the purchase money, but he repudiated the sale, affirming his title to the land. Under these circumstances, I cannot ^conceive that the Circuit court was authorized even to consider any supposed claim of the appellant to the purchase money for the land, much less to render a decree in his favor.

It was argued, however, that all the parties were before the court. It might have required .the payment of the debt as a condition of granting the relief sought by the bill. It is true, the executor was a party to the suit; but, as he asked for no relief, I cannot, see by what authority, or upon what principle, the court could impose terms upon him, as a condition of affording relief to third parties, with whom he had no connection or privity.

The appellees asked the interposition of the court, upon the ground that the appellant, by his acceptance of the devise, was precluded from contesting the other provisions of the will. The testator, in disposing of the “Double Cabin farm,” manifested an intention, not merely to extinguish appellant’s title thereto, but any lien he might have thereon for unpaid purchase money. If the debt still subsisted, it constituted a claim against the estate of William G. Clark, and not against the appel-lees, or the land in their possession. So soon as they established a case of election, and that the appellant had made that election, they were entitled to the aid of a court of equity, without any terms imposed •of paying a debt for which they were in no manner responsible.

It was asserted in the argument, that the appellant had made his election, upon condition of receiving the unpaid purchase money for his land. It may be so, but the facts disclosed in this record do not warrant such a conclusion. When informed by the executor that he would be paid the balance due him by the parties interested, 'he replied that he had no compromises to make; that he was entitled to the land claimed by the appellees, and his purpose was to recover it. In his answer, he repudiated the sale made by his father; denied its validity, *so far as he was concerned; denied also that he had ever ratified the contract; and insisted that, under a true construction of the will of William G. Clark, he was not required to make an election. These facts would seem to indicate that he accepted the devise under a mistaken impression that he was entitled to hold both estates, and not under any expectation of recovering the purchase money. However, it is not my purpose to express any opinion upon the merits of the case. Whether the appellant has the right to a recovery against the estate of William G. Clark, is a question not sufficiently presented by the pleadings to justify this court in rendering a decision thereon.

T'or these reasons, I am of opinion the decree of the District court should be affirmed, with costs, but without prejudice to any claim the appellant may assert to the purchase money for the land, as against the estate of William G. Clark.

The other judges concurred in the opinion of Staples, J.

Decree affirmed.  