
    Graves v. M’Call.
    [Saturday, November 8, 1798.]
    Equity Practice — Sureties —How Far Equity Will Charge. — [A Court of Equity will not charge a surety, further than he is bound at law; but, if a surety bound at law, cannot be charged there for want of the instrument of which the creditor is deprived by accident or fraud, as by a loss of the instrument, or a withholding it by the surety, equity will give relief.]
    Vendor’s Lien — Liability of Land to Satisfy. — Leave given vendor to pursue lands in the hands of a purchaser, with notice, from the vendee, for balance of the purchase money.
    M’Call filed a bill in Chancery, in the County Court of Henrico, against Francis Graves, setting forth that he had sold a tract of land and some cattle, &c. to Stock-dell for 4501. to be paid in bonds, which were to be assigned by Graves. That Graves immediately assigned’ bonds to the amount of 1621. 11s. That a written agreement was drawn, bearing date the 5th of January, between Graves, Stockdell and the plaintiff, wherein the two former covenanted to pay the plaintiff bonds assigned by Graves; but there being no witnesses present, it was agreed that the plaintiff and Stockdell should sign, and -Graves should witness it at that time; and that when the parties met again, a new writing should be drawn and executed by them all. That the agreement so’ executed by the plaintiff and Stockdell, and witnessed by Graves, was left in the possession of the latter. That the plaintiff had in consequence of that agreement, soon after-wards conveyed the lands to Graves at the request of Stockdell. That Graves has refused to assign bonds, or to give up the said written agreement to the plaintiff, and that Stockdell is insolvent. Therefore, the bill prays, that Graves may be decreed to pay to the plaintiff the balance due with interest.
    ‘z’The answer of Graves admits, he attested the agreement as a witness, and kept possession of it at the request of the plaintiff and Stockdell; but states, that the contract was ma,de by them whilst he was asleep; and that he was called up out of his sleep to attest it. That Stockdell applied to him for the loan of some bonds, which request he complied with ; and that Stockdell asked M’Call, if they would -'o for the present? who answered, yes, if Graves will endorse them. That he did endorse them to the amount of 1631. 9s. 6d. for which a receipt is endorsed on the agreement. Denies he ever contracted with the plaintiff for the land, or that he ever agreed to assign any other bonds, than those before-mentioned to have been assigned by him. Denies that he agreed to execute another agreement; but admits the plaintiff has conveyed the land to him; he having purchased it of Stockdell, to whom he paid a valuable consideration for it.
    The agreement, after reciting the sale to Stockdell for the sum of 4501., goes on to say, “to be paid in bonds, which is to be endorsed to the said M’Call, by the said Stockdell and Francis Graves.”
    The deposition fully iiroves G-raves’s responsibility; and the County Court decreed, that he should pay to the plaintiff the balance due, with interest.
    From this decree Graves petitioned for, and obtained an appeal to the High Court of Chancery by order of the said Court; where the decree of the County Court was afterwards affirmed, with this addition, that M’Call on receiving his money, should assign his claim against Stockdell by an irrevocable power of attorney to Graves. From this decree of affirmance, Graves appealed to this Court.
    Copland. •
    The defendant having attested the paper, it is evidence of his knowledge of its contents, especially as he has not denied 416 it in his answer. *But, it is further proved by the- endorsement, which speaks of the within bonds, [Mocatta et al. v. Murgatroyd,] 1 P. Wms. 393; [Hobbs v. Norton,] 1 Vern. 136. The reasoning in which cases applies more forcibly to that at bar, where the knowledge is not denied by the defendant.
    Randolph, on the same side. The contract of January was with the knowledge of Graves; who confesses the discourse; and admits he was informed of the bargain. But, in addition to this, the cases cited by Mr. Copland expressly apply; and prove the presumption. The writings were left with him, and he desired the deed to be made.
    The Court will direct the Court of Chancery, to give leave to M’Call to resort thither to charge the land in respect of the lien, should the decree not be satisfied out of the personal estate.
    
      
      Vendor’s Lien. — In McCandlish v. Keen, 13 Graft. 621. it is said, the vendor’s lien has been asserted against the vendee or purchaser .with notice from him, citing Cole v. Scot, 2 Wash. 141; Graves v. M’Call, 1 Call 314; Duval v. Bibb, 4 H. & M. 113; Hatcher v. Hatcher, 1 Rand. 53; Tompkins v. Mitchell, 2 Rand. 428.
    
   PENDLETON, President,

after stating the case, delivered the opinion of the Court.

The questions are, 1st. Whether Graves was originally liable for this demand, either as principal or security, for it matters not which? If he was, then, whether, he was discharged by M’Call’s acceptance of Stockdell’s bond, and the subsequent proceedings on it?

We have not a moment’s doubt, but that Graves was security for Stockdell’s assigning good bonds; which Graves was to unite in the endorsement of, and, consequently, to become answerable for their success in payrment. His idle story of having been waked from sleep to witness the agreement, without knowing its contents, if fit deserved other notice, than the just ridicule bestowed on it by the Chancellor, is fully refuted by his having by the loan and endorsement of the bonds, paid in part, so far joined in the execution of the agreement; and by his subsequent acknowledgment, as proved by the witnesses.

His second objection is, that he carried a message from M’Call to Stockdell, to send his bond for payment of the balance; 417 that he carried *that bond on the 19th of January, to M’Call, with a letter from Stockdell, to convey the land to the defendant, who had then purchased it; the bond was accepted by M’Call, and the property conveyed, by which it is insisted that Graves was exonerated, if he was originally liable ; and the dignity of the answer is relied on to establish, as well the fact, as the consequence.

As to the fact, “that the bond of Stock-dell was given and accepted, and the property conveyed to Graves,” it is not in controversy; but, that the effect, whether it operated as a discharge of Graves? is to be drawn from the nature of the transaction, and from the understanding of the parties at the time.

As to the 1st. The agreement was, that Stockdell should pay good bonds, endorsed by Graves, by the 1st of March ; Stockdell’s bond was to pay good bonds by the 1st of March ; which bonds he would make himself liable for, as endorser. This requiring the endorsement of Stockdell only, differs in terms from the agreement, and would give the appearance of discharging Graves from his responsibility; but that appearance is changed, when coupled with the letter accompanying the bond, referring to the agreement; which was to be delivered to M’Call, when it was performed on his part, by a conveyance, and delivering possession of the property. To no purpose was it to be delivered to him, if it was fulfilled also on the part of Stockdell, since it would be then of no consequence to either. The purpose of delivery could only be to enable M’Call to resort to Graves finally, if, Stockdell should fail in performing his bond.

And how did the parties understand it?

As soon as Stockdell failed in delivering the bonds, we find M’Call applying to Graves for the agreement at several times,, without effect; and, at last, is induced to drop that pursuit, upon the repeated acknowledgment of Graves that he was 418 ultimately *answerable ; in confidence of which, like a humane creditor, willing to ease the security, he commenced, his suit against Stockdell, to endeavor to get the money. But this proving fruitless, and he not yet furnished with the agreement, he commenced this suit to have it brought forth and to obtain the benefit of it: All indicating that he never considered Graves as discharged.

And how did Graves understand it?

The testimony of Stokes M’Call and Miller are full and plain, that he never considered himself as discharged, even as late as July following, six months after Stockdell’s bond had been given: and there being two positive witnesses, corroborated by the written papers, the answer of Graves loses the dignity contended for.

Upon the whole, we have no doubt, but that Graves was originally security for this demand, and that his responsibility has never been extinguished by any of the subsequent proceedings. It is then objected that the decree should have been for the assignment of bonds, and not for the money: But it would be very unjust to compel M’Call to take bonds now, (which he should have had ten years past.) and put him to the delay of new suits on them. Stockdell, in whose place Graves is, by not delivering the bonds in time, lost the alternative, and must now pay the money. It was truly said, that a Court of Equity would not charge a security further than he is bound at law; but, if a security bound at law, cannot be charged there, for Want of the instrument, of which the creditor is deprived by accident or fraud, a Court of Equity will restore the paper to its legal force. An instance is put, of a lost bond; but the present case is much stronger; the agreement being in the hands of the security and withheld by him.

The part of the decree directing the assignment of M’Call’s judgment to Graves, by an irrevocable power of attorney, was just and proper.

*The decree is affirmed, with costs; both debt and costs to be paid out of the estate of Graves in the hands of the administrators, if sufficient; without prejudice to any suit, which the appellee may think proper to commence against the heirs of Graves, to subject the land conveyed, in their hands, to the satisfaction of his demand, if necessary.  