
    Beverley v. Lawson’s Heirs, &c.
    Thursday, March 5th, 1812.
    1. Sale of Land — Speciiic Performance — Reference of Title to Commissioners.- — where a hill in equity is exhibited by the vendor of land, against the purchaser for specific performance; if the purchaser object to the title, and it appear doubtful whether the plaintiff can make such a title as would authorize a decree for specific performance, or other relief, on giving bond to -guard against remote or improbable contingencies, the title ought, of course, to be referred to a commissioner, to be examined and reported upon.
    ■3. Same — Metes and Bounds — Liability of Vendor. — If lands be sold according to certain metes and bounds; and, by a covenant under seal, the vendor agree to warrant the title against all persons whatsoever; he is bound to include, in a conveyance with general warranty, and in case of eviction, to make compensation -for all the lands within those bounds, which he held and claimed as his own at the time of the sale, and showed to the purchaser as part of the lands sold; notwithstanding his title thereto may be defective. But he is not bound to convey lands which were not held and claimed by him at the time of the sale, nor shown as part of the lands sold; although his title papers may comprehend them.
    3. Same— Specific Performance — Decree.—If land be sold on a credit, a day being appointed when the purchaser is to give bond and security for the money, and the vendor to convey the land; and on the day appointed, the purchaser is ready with the bond and security, but the vendor not ready to convey; on a bill afterwards brought by the vendor against the purchaser for specific performance. it is too rigorous to decree an absolute sale of the land, on a short notice, to raise the purchase money; but if it appear, on examination of the title, that the contract can, according to the principles of equity, be enforced on both sides, the decree should be, that the land be held bound for the purchase money, if bond and security for payment thereof be not given, within a reasonable time after the title shall have been made, and approved of by the judge, and after the plaintiff shall have performed such other acts as the Court may enjoin upon him; and that, thereupon, the land be sold, after allowing such further reasonable time to redeem the same, by payment of the debt and interest, as is customary in the case of mortgages.
    4. Appellate Practice — Removal of Decree against Purchase of Land. — when a decree, in favour of the vendor, against the purchaser of lands, of sundry personal property, is reversed, and the cause remanded for a reference of the title, and a survey to be made before commissioners, the Court of Appeals will direct, that the appellant have liberty to show, and prove to them, if he can, what parts of the personal property stipulated for were not. delivered under the contract, and the value thereof; although the Court would not have remanded the case for that purpose alone.
    An agreement, under seal, was entered into, the 26th of August, 1801, between Gavin Lawson and Carter Beverley, “witnessing, that the said Lawson had on that *day bargained and sold, and did thereby bargain and sell, unto the said Beverley, all his tract of land lying and being in the county of Culpepper, together with the buildings of every kind, stock of cattle, horses, hogs, plantation implements, and every other thing thereto appertaining; together with his adjoining tract of land in Fauquier County, purchased of Routt and others, with the two mills thereon erected, and the stocks; the whole containing fifteen hundred acres certainly, (if more, the surplus to be given in,) for and in consideration of the sum of seven thousand five hundred pounds, Virginia money, to be paid to the said Lawson, in four annual payments, on the first day of December in every year, commencing from the date of said agreement. Should the several tracts of land fall short of the fifteen hundred acres, then the said Lawson is to make a deduction of two pounds twelve shillings and six pence for every acre deficient. The said Lawson will forever warrant and defend the said tracts in quiet possession of the said Beverley, his heirs, executors, administrators, and assigns, and from every other person or persons whatsoever. Possession to be given to the said Beverley on the first day of December next ensuing the date hereof, when a regular conveyance of the said property, agreeably to this instrument of writing, ■ is then to be made, by the said Lawson, his heirs, ‘executors, administrators, and assigns, to the said Beverley, ’ his heirs, executors, administrators, and assigns, and the said Beverley is then, in consideration of the purchase hereby entered into on his part, to give his bonds, with approved security, to the said Lawson, his heirs, executors, administrators, and assigns, for the regular fulfilment of the annual payments. The said Beverley is to be allowed to sow both the corn and tobacco land with wneat, when he thinks proper, to be under the care and management of the said Lawson’s overseer; the seed wheat to be found by the said Beverley. The said .Lawson is to keep possession of the store house and lumber house, with the garden and paddock, until *the 1st day of December, 1802, for and in consideration of fifty pounds current money. Should, however, the said Beverley wish to occupy the said store, &c. himself in the autumn of 1802, then the said Lawson is to give it up; firewood to be allowed the said Lawson for his store purposes.’’
    On the 12th of May, 1803, Lawson filed his bill against Beverley, in the Superior Court of Chancery for the Richmond district; setting forth, that, in pursuance of the said contract, Beverley and himself met on the first day of December, 1801, and executed the contract, “as far as was then practicable;” that is, possession was given by him to Beverley of the said lands, and of all houses thereon (except the store and mill,) together with the stocks of horses, cattle, and hogs, and the plantation implements : the mill, with its appurtenances, was retained for five or six days by the complainant, with Beverley’s consent, who paid, on his part, one fourth of the purchase money, and produced bonds, executed by himself and two securities, for the other annual payments: but the said bonds were retained by the said Beverley, because the complainant could not fully execute his part of the contract by making conveyance of the land, for want of knowing the precise quantity thereof.” The complainant and the said Beverley had previously agreed on a certain Thomas Spillman to be the surveyor, who should ascertain the quantity, and he had commenced the survey, and would have completed it by the said first •day of December, but was prevented by a fall from his horse. The further execution •of the contract was deferred, by consent, till the survey was completed. The defendant, Beverley, had enjoyed full and ■entire possession of the lands, houses, mills, and other property aforesaid, from the delivery thereof; and on the first day of December, 1802, he received possession of the store and its appurtenances, and ■continued in possession ever since. The ■complainant had called on him to proceed to the complete execution of the contract, the survey having, at*the time of such request, been completed more than twelve months, and having ascertained the quantity of land to be fifteen hundred and twenty-three acres; and the said Beverley having had full notice thereof for a like space of time before the said request ; with which he refused to comply. The bill, therefore, prayed for such relief as the plaintiff’s case might require.
    The defendant, by his answer, admitted, that he was put in possession of the greater proportion of the said tract of land at different periods of time, but denied his having been possessed of the whole thereof agreeably to the contract. He acknowledged, 1 ‘that Thomas Spillman was appointed to survey the said lands, which he accomplished some considerable time after the date of said contract; and further he alleged, that as soon as he was furnished by the said Spillman with the courses of ■the different lines of the said two tracts, he, by his agent, at the mutual agreement -of the complainant and himself, waited on the complainant with deeds (drawn con-formably to the surveys,) and presented them to the complainant for his signature, February 2d, 1802; that the complainant evaded giving deeds, and deferred the fulfilment of his engagements under the said contract to the time of his visit, intended in the spring following, to Culpepper, where and when (as he said) he would most •certainly conclude every thing requisite; but he let the spring pass without noticing his promises aforesaid ; that the respondent by the delay and reluctance shown by the complainant, was induced to examine into his title to the said lands, and discovered sundry defects therein; viz. “that the complainant purchased the tract in Fauquier ■of several persons; to wit, a portion thereof of a certain John Routt and others, for which he had only a deed from John Routt, and his bond for the others who could make a conveyance; that the part so bought of John Routt, &c., was further the subject of litigation; the same being claimed by the descendants of James Routt, on the ground of a division having been made of *the said land in the minority of the said James Routt, without the authority necessary to make such divisions binding; and that the said James Routt’s heirs had notified the respondent of their claim; that another part of the tract, purchased by the complainant of the said John Routt, &c., is claimed and possessed [ by the representatives or heirs of a certain Fdward Nugent; that Turbervill’s heirs claimed, and are in possession of another part thereof; that the complainant had diminished the number of acres in the said Fauquier tract by the sale of a considerable part of the tract he purchased of James Withers to James Routt, whose heirs are in possession thereof; that the complainant has a defective conveyance to another portion of the said Fauquier tract, which he purchased of Margaret Reynolds, who had a title thereto, but his deed for which was from Catharine Reynolds, who had no title; that the complainant cannot make a legal title to the greater part of the tract in Cul-pepper, which he purchased of a certain James Slaughter; the same being open to the claim of the heirs of the original patentee, and in part controverted by the claim of a certain John Matthews, who is in possession of the part so claimed by him.
    The respondent further stated, that, ‘ ‘as soon as he found the complainant’s title so imperfect, he thought it advisable to communicate to him full information relative thereto: he accordingly did so, and demanded of him a view of his title papers; the demand was not complied with; and this respondent refused to accept deeds from the complainant with the solitary and naked security of his general warranty; especially, as, since the date of the contract, the complainant had nearly sold off all his real estate, and invested the proceeds thereof in lands in the state of New-York, in the names of his sons-in-law, John Nicholas, and Robert Rose; having himself removed from Virginia to Genessee, in the state of New-York, there to reside, and taken with him, or parted with, the property he was possessed of at the time of his contract aforesaid.
    respondent did not receive possession of the store house, and lumber house, until the first day of December, 1802; the same having been occupied by the complainant, agreeably to the contract, at the rent of fifty pounds per annum ; which sum the complainant is chargeable with.’” He denied that he received all the stock and plantation utensils; some of which were kept back, (as he had been informed,) and were actually removed and used by the complainant. Several other discounts or set-offs were also claimed in the answer; for repairs to the mill, which (as the respondent alleged) the complainant verbally agreed to pay for, &c. He stated, also, that the complainant had instituted actions of ejectment against him, in the District Courts of Dumfries and Fredericks-burg, to turn him out of possession. In March, 1804, an order was therefore made by the chancellor, that the plaintiff, on the third day of the next term, being served with a copy of such order, show cause, if’ any he could, why he should not be compelled to make his election, either to dismiss his said suit at common law, and proceed in the court of Chancery, or to dismiss his suit there, and proceed at common law. The complainant replied generally, and commissions to . take depositions were awarded.
    The first of June, 1805, the suit having abated by the plaintiff's death, was revived, by consent, in the names of John Nicholas, and Anne, his wife; Robert S. Rose, and Jane, his wife, (which Anne and Jane are heirs of Gavin Lawson,) and the said John Nicholas, administrator, and Susannah Lawson, widow of the said decedent; they having agreed to dismiss the actions at common law in the proceedings mentioned. t ■ : ;
    The cause coming on to be heard, the 22d of September, 1808, Chancellor Taylcr decreed, “that, within thirty days after, the plaintiffs shall file in the office of this court, a bond executed by the plaintiffs, John and Robert, with sufficient security, residing in the state of Virginia, payable to the defendant, in the penalty oí- six thousand pounds, with condition to • i : : 1 abide by and perform any future *order, or orders, of this court, to be ! : made for compensating the said defendant for the loss of any part of the land sold by Gavin Lawson to the said defendant, by the agreement, made an exhibit in this cause, from which he may be evicted, according to the measure of compensation, which the true and proper construction of the said agreement shall warrant, and after the said plaintiff’s offer to the said defendant, and if he shall refuse them, de-posite in the office of this court, for his use, good and sufficient deeds of conveyance in fee simple, with general warranty, and the legal certificates of the privy examinations and relinquishments of the plaintiffs, Anne Nichols and Jane Rose, of dower in the land before mentioned, the said defendant do pay to the plaintiffs 1,8251., the second instalment stipulated for, in the said agreement, after deducting therefrom, the rent of 501., mentioned in the answer, with interest, at the rate of six per centum per annum, on the balance thereof from the first day of December, 1802; until paid; also the sum of 1,8751., with like interest thereon, from the first day of December, 1803, until paid; and the sum of 1,8751. with like interest thereon, from the first day of December, 1804, until paid, and the costs of this suit. And that, in case of the failure of the said defendant, to pay the said several sums of money, with interest, as aforesaid, within thirty days from the time of depositing the said bond and deeds, aforesaid, that then William Ci Williams, John Minor, and Benjamin Botts, who are hereby appointed commissioners for the purpose, or any two of them, do, after advertising the time and place of sale in a newspaper, published in Fredericksburg, for three weeks successively, expose to public auction, for ready money, the said tracts of land, and our of the proceeds, ■after discharging the costs and charges of •sale, pay the several sums aforesaid, with the interest and costs, .to the plaintiffs, and the balance, if any, pay over to the defendant; and it is further ordered, that the commissioners, in that event, do report their proceedings to the court, in order to a final decree.” 1 l ' :
    In pursuance to this decree, a bond ¡ and deed from the *plaintiffs were • delivered to the defendant; copies j whereof were also deposited in the clerk’s office ;• and the defendant having failed to pay the money, the commissioners proceeded to sell the lands, and made a report, to which the defendant excepted; 1st. Because they had charged him with the sum of eight dollars paid the printer for their first advertisement, when they did not proceed to sell the lands, the sale being postponed either by themselves, or by direction of the plaintiffs; 2dly. Because they had charged 926 dollars (being five per cent, on the amount of sales) as a compensation for selling the said lands, which were sold in Fredericksburg, at the place of their own residence; and, 3dly. Because, instead of selling the lands in separate tracts, they sold them all together, thereby excluding competition in purchasers.
    The Chancellor, June 12th, 1809, pronounced his opinion; “that, as ihe postponement of the sale, in the first instance, though by the commissioners, with the consent of the creditors, was done for the benefit of the defendant, he should pay the costs to the printer of the first advertisement; and as he was consulted, whether his lands should be sold in separate tracts, or altogether, and approved of the latter mode, he should not be allowed now to object to the sale on that account; and that a commission of one per cent, is sufficient, in this case, to the commissioners of sale for their services, cryer, and bell: and, therefore, allowing so much of the second exception as will exclude four per cent, of the commission charged to the defendant, and disallowing the other exceptions, he decreed that the said report, so reformed, be confirmed ; and that the commissioners do execute a deed of conveyance to Samuel Gordon, (the purchaser,) “at his costs, for the lands sold by them to him, as stated in the said report, with warranty against themselves, and all persons claiming under them; and that the defendant pay the costs of this suit.” From which decree the defendant appealed.
    Williams, for the appellant,
    made the following points:
    1. Lawson has not performed the contract on his part; and therefore specific performance ought not to be decreed, until his heirs shall do so.
    2. The title conveyed from him and his heirs is defective. According to the exhibits, the plaintiffs appear to rely on five patents; but their title is not deduced regularly from those patents. It is obvious, that when this suit was brought, Lawson had no title to that part of the land for which Richard Young Wigginton has since made a deed to the female appellees.
    • • The deed from Henry Hitt, and wife, to James Spillman, dated October 18th, 1764, is defective. The land conveyed by it is stated therein to have been entailed on Mrs. Hitt, by her father, and a writ of ad quod damnum, docking the entail, is recited, but does not appear.  The certificate of her examination, being merely that she was ‘‘examined,” {without saying privily and apart from her husband,) 4‘and acknowledged her right of dower,’5 was not according to law.  The deed from Peter Lucas, dated the 18th of February, 1799, is executed by himself alone ; not being signed or sealed by his wife, though her name is mentioned in it. The certificate of her privy examination does not state that the deed was ever ■shown to her. It was, therefore, not effectual in law to pass her title, 
    
    The title, deduced from Richard Young to John Wigginton, from Wigginton to Lear, and from Lear to Lawson, is also defective. The deed from Young to Wiggin-ton, was a deed poll, in consideration of natural love and affection for an “adopted55 son, who does not appear to have been related by blood to the donor. * The consideration is therefore insufficient to pass a title. A deed poll, too, was not the proper instrument, under the laws then in force. The conveyance should have been by indenture.
    The deed from John Matthews and Llisha Matthews, to James Dobie, dated the 15th of June, 1793, appears not to have been fully proved and admitted to record until the 16th of June, 1794. The creditors of Matthews might therefore come upon the land, if they thought proper. The title •conveyed from Dobie to Lawson, is also incomplete; the dower right of Mrs. Dobie having never been relinquished.
    The deed expressed to be from Margaret Reynolds, is signed by “Catharine M Rey-mark nolds.55 This may be a mistake: but, clearly, it makes the title defective; so that, in ejectment, it would be insufficient.
    The conveyance from James Routt and others, is executed by guardians of infants, and no confirmation by the infants appears. The fight of a feme covert is also conveyed by that deed, without any privy examination.
    *The commissioners left out a part of the land which they understood that referees had adjudged against Lawson : but it does not appear that the referees did so decide it. Beverley was therefore entitled, under his contract with Lawson, to that land also.
    
    3. The Chancellor (instead of decreeing specific performance upon the appellee’s giving security for the tiCe) should have directed a survey, and referred the title to a commissioner, to be reported upon.
    Beverley contracted for land; not for bond and security. Personal security may be good to-day, and bad to-morrow. This is the first time that a Court of Chancery ever substituted personal security for land. This decree violates every principle of law, and every rule of equity. Until a Chancellor shall be a legislator, such power cannot be assumed. He should have investigated the title, and if Lawson’s representatives could not make a good one, refused to decree a specific performance.
    4. The plats and surveys made by Spill-man, being ex parte, should not have been received as- evidence. We could not except to them in any way, but by endorsing *the objection on the paper, and that was done. A letter from Beverley to Lawson, in November, 1801, (exhibited by the appellees themselves,) expressed a wish to be notified, that he might be present at the survey. Yet it was made without giving him any notice. 
    
    
      5. The discounts claimed in the answer should have been allowed, or, at any rate, referred to a commissioner to state them.
    On this point the answer, being responsive to the bill, was evidence. The plaintiff should therefore have proved actual delivery of all the articles before he could claim specific performance.
    Call, for the appellees.
    Mr. Williams has introduced a frivolous train of objections to the title; possible claims of dead ladies to dower, and of creditors of 30 or 40 years standing. As to the title under Dobie, no objection was taken in the Court below; and as to the *title generally, no application was made for referring it to a commissioner. It is now, therefore, too late to raise these objections. The cases of Jenkins v. Hiles,  Hartwell v. Townsend,  and Perkins v. Saunders and Wade,  are authorities, showing, that many objections, not made in the Court below, should be considered as waived, and not permitted in the Court above.
    The reference of a title to a commissioner, for examination, should be made, not of course, but on the motion, of the purchaser : and where the title is clear, no reference is necessary,  It is enough, too, if this be the case prima facie; for the seller of land is bound to do no more than to show a title prima facie good: when that is done, the onus probandi lies on the purchaser to show it bad. Nor shall the purchaser be allowed to object to the title, on the ground of mere probabilities,  In the case of Lyle v. Ronald,  Chancellor Wythe’ decided, on a bill exhibited bj' a vendor against a purchaser, that the objection, that a right of dower had not been relinquished, was not sufficient to render the title so. defective as to prevent a decree for specific performance possible; and • dormant claims are inadmissible. Mr. Williams should have proved the resurrection of these dead women, and that their rights and claims are actually subsisting.
    As to the objection to the consideration of the deed from Young to Wigginton, on the ground that the adopted son was not a blood relation; had it been made in the Court below, we might have proved that, in fact, he was a near relation. The case of fijppes v. Randolph shows that evidence may be adduced in support of the consideration. It is questionable, also, whether a party could object the want of consideration to invalidate his own deed.
    It does not appear that the survey was ex parte. The implication from the answer is quite the reverse. Beverley declares himself satisfied with the áurvey; for, he says, that he drew the deed for Lawson’s signature, according to the lines laid down, in it. But, even if it *were ex parte, it was supported by the deposition of the surveyor, and, if not conclusive against 3everley, was legal evidence, (considered as part of that deposition,) to avail as far as it could properly avail. Johnson v. Brown, 3 Call, 259, is an apposite case on this point. Beverley, if dissatisfied with the survey, (which was a mere private one, by consent of parties, when no suit was pending,) should have moved the court for an order of survey.
    An account of the personal property, delivered by Lawson, together with the lands, was not asked for by the defendant. He took possession of all the cows, of all the horses, of all the hogs, &c. &c. An account is not a matter of right, except in. the case of an executor or administrator. There should be proof that an account is necessary. A schedule should have been shown of what Beverley actually received p and this should have been exhibited on his part.
    The Attorney General,
    on the same side.. Thfe answer, as to the articles alleged by Beverley to have been not delivered, is not evidence. Was it ever supposed, where a man admits a general compliance with a contract, with certain exceptions, that he is not bound to prove the exceptions? Beverley, here, has adduced no evidence, although the subject was easily susceptible of proof.
    He has equally failed in establishing his. objections to the title. This is a bill brought to subject lands, in possession of a purchaser, to be sold for payment of the purchase money. The purchaser objects to the title; he is therefore bound to prove his objections. But Beverley shows no evidence of any real grievance; no proof of disturbance of title, of any claim set up against him. He has always been in possession. The difficulties raised are merely speculative; drawn from hunting up old; musty records. Lawson (it is true) filed his title papers : but he was not bound to-do so: he might have withheld them; for the onus probandi lay on Beverley *alone. A deed having been made him, with general warranty, Lawson had a right to call upon him to show some substantial defect, some real objection.
    The Court of Chancery, after lapse of time, will presume every thing in favour of a title. Outstanding titles, being mere possibilities, or remote contingencies, are not to be regarded, 
    
    If the objections taken by Mr. Williams, in this Court, had been suggested in the Court below, they might have been repelled) by evidence: and, as to those made in the answer, not one of them is supported by the facts in the cause. There is no proof that James Routt’s heirs set up any claim to the land. Nugent’s dispute with Lawson was in the year 1787, long before the contract with Beverley. It was referred to arbitrators, and they awarded in favor of Nugent: but it does not appear that the contract between Beverley and Lawson interfered with the line between Lawson and Nugent, established by that award. There is no proof of Turbervill’s claim. The transaction with James Routt was only an exchange for the benefit of Lawson, long before his bargain with Beverley. The deed from Margaret Reynolds was signed her (by mistake) “Catharine £<| Reynolds,” be-mark cause she could not write, and the person who wrote for her made the mistake. The deposition of William Gibson (p. 26 ol the record) clears this up completely. That of Thomas Spillman, (the surveyor,) proves the uninterrupted possession of James Slaughter (whom he always understood to be the son of Robert Slaughter, the original patentee, by patent bearing date the 3d of October, Í734) ever since before the year 1769. The title of Lawson, under the deed from James Slaughter, must therefore be good: for the claim of John Matthews would be barred by length of time.
    I have now gone through all the objections made in the answer. In all these he has failed, except his claim of a credit for 501., which appears in the contract itself, 'xand never was controverted. He should now be confined to those objections; for we had no notice of any other. One circumstance will strike the Court in their retirement: Lawson, and those under whom he claims, have, in every instance, been in possession between thirty, forty, and fifty years.
    The bill charges that the survey was made with Beverley’s consent and approbation. The answer does not deny this, but admits it. Mr. Beverley himself proposed Spillman as the person to make the survey. After this, he ought not to be permitted to entrap, ensnare, and commit injustice against the plaintiffs, by going into the Chancery office, and endorsing on the paper an objection, of which the plaintiffs knew nothing till it might be too late to have another survey made. This objection -was plainly an after thought.
    Lawson directed Spillman to omit, in the survey, every piece of land to which there was any dispute. This showed his disposition to fairness.
    The reference of a title to a commissioner is not a matter of course; but a motion to that effect should be made, and a case made out requiring such reference. In this case, the title papers being before the Court, the Court could judge upon them as well as a master could.
    As to the bond for securing the title, though irregularly demanded of the plaintiffs, (since, in fact, there was no reason for apprehending any defect in the title,) they gave it; and they (who alone had a right to complain) having submitted to the order, it cannot now be disturbed.
    Williams, in reply.
    It was not necessary to make a motion in the Court below for a reference of the title to a master. It is true that in Omerod v. Hardman, 5 Versey, jr. 722, where it was clearly shown that the vendor (who sued for specific performance) could not make a title for a long time, and that a suit in Chancery to obtain it was necessary, the Court dismissed the bill without such reference; *but, in that case,  costs were refused, “on the ground that it is very much the common course of the Court to consider that there must be a reference to the master.” In Rose v. Calland, the Chancellor, not upon a motion, but upon the hearing, said that all he could do at present was to send that case to a master. He afterwards dismissed the bill, because the exchequer had decided against such a title as the plaintiff proposed to make, although he differed in opinion from that Court; saying, he would not make the purchaser take a lawsuit.
    In Cooper v. Denne, 1 Vesey, jr. 565,  it was decided, that “the decreeing specific performance of an agreement for a purchase is in the discretion of the Court; therefore a purchaser will not be compelled to make a doubtful title. ’ ’
    It is laid down in Sugden, 155, that, in all cases where a bill is filed by a vendor for a specific performance, the defendant, the purchaser, may, if he please, have a reference as to the title: and even “though an abstract is in the hands of the party who says he cannot object to it, yet he may insist upon a reference : because, by the production of papers, which can be enforced, and by the examinations and inquiries which can be made, by virtue of the decree, the title may be examined in a manner it never could upon a mere abstract.” It is not there stated that the defendant must move a reference It is enough that he objects to the title; and if there be a cloud upon it, that cloud must be cleared up, or the Court will not decree a specific performance. According to the case of Jenkins v. Hiles,  the purchaser is entitled to a reference, unless it appear distinctly that he waived it; and he is not limited to rely on the objections taken in his answer.
    But it is said that the purchaser must not only object, but must prove the title bad. Such, indeed, is the rule where the purchaser brings an action at law for recovery of his deposite on account of a defect in the title, and for ^damages for loss of his bargain,  But the case is otherwise where the vendor brings his bill for specific performance. He is asking equitj", and therefore must do equity, by making a clear and indisputable title, before the Court will give him a decree.
    The authorities cited show that the Court of Chancery, in the regular course of proceeding, should direct a reference to a master, unless it be expressly waived by the purchaser; or the title be clearly bad; in which case the Court will dismiss the bill without a refereace.
    But it is said that my objections should have been made in the Court below, to have given the plaintiff the opportunity of rebutting them by proof. The plaintiff, since he was asking the aid of the Court, was bound to exhibit his title, free from doubt. The onus probandi therefore lay on him. Such an argument would apply in all cases where the plaintiff’s proof is insufficient; he might say, that if the objection had been made in the Court below, he could have supplied the defect. Our objections are not mere probabilities, but it is very possible, and probable, that our title may be disturbed by some of the women who have rights of dower, by some creditor of Matthews, whose deed was not duly recorded, or by the heirs of James Routt, whose guardians undertook to make a deed for them when they were, infants. It should have been proved, on the other side, that none of these dangers exist, or may reasonably be apprehended.
    The next argument is, that the surveys do not appear to have been made ex parte. To this, I answer, that notice to Beverley should have been proved on the part of the plaintiffs. He made this objection in the Court below, by endorsing it on the plats and certificates of survey. In Johnson v. Brown, 3 Call, 259, no exception to the survey was taken in the Court below: it was therefore read in the Court of Appeals: but ” here the formal objection was made.
    *An account, too, it is contended, ought not now to be demanded, because it was not asked for by a motion appearing on the face of the record. But, according to the Chancellor’s own decisions, a motion for an account would have been improper,  The true ruléis, that the appellant may avail himself of whatever objections appear on the face of the record; and if the bill and proceedings show it was a proper case for an account, it is error that the Chancellor failed to make such order.
    Mr. Nicholas says, that this is a bill brought to subject - lands, in possession of a purchaser, to be sold for payment of the purchase money. But such is not the case. The bill is for a specific performance. Is the Court competent then to decree a sale of the land? Where is the instance of a Court of equity decreeing a sale, on a bill like the present?
    It seems to me, that the plaintiffs cannot be entitled to a decree for a sale, but for specific performance only. First. Because the agreement was, not that the purchase money should be a lien on the land, but that bond and security for payment should be given. Secondly. Because, if this mode of proceeding be sanctioned, the plaintiff will be benefited by not having been able to perform his agreement at the time appointed. He shows himself, that part of his title was not complete until June, 1803, and another part in 1805; even if now complete. The bill was filed in May, 1803, and admits that, in 1801, Beverley offered his bonds, duly executed, but the plaintiff was not ready to perform his part of the agreement. The suit was instituted immediately after the first annual instalment became due. The question between the parties was as to the sufficiency of the title. Yet the Chancellor, although he admitted there was such a cloud over the title as required security to guaranty it, has decreed a sale of the land, in thirty days, for the whole amount in ready money. Surely, if this Court shall be of opinion, that a decree for a sale could be made, ar least six months should have been given.
    *The deeds from Lawson and wife, bearing date the 23d of February, 1803, were never delivered to Beverley, but filed in the clerk’s office, for the first time, by the commissioners who made the sale.
    
      
      SaIe of Land — Specific Performance — Reference of Title to Commissioners. — Where a suit is brought for the specific execution of a contract for the sale of land against the purchaser, if the title to such land is doubtful and obscure or depending upon matters in pais, the court may refer the cause to a commissioner to ascertain the state of the title. To this effect the principal case was cited in Jackson v. Henderson, 3 Leigh 196; Goddin v. Vaughn, 14 Gratt. 128; Hudson v. Max Meadows, L. & I. Co., 97 Va. 347, 33 S. E. Rep. 586; Middleton v. Selby, 19 W. Va. 174; foot-note to Griffin v. Cunningham, 19 Gratt. 572. See further, monographic note on “Specific' Performance” appended to Hanna v. Wilson, 3 Gratt. 243.
    
    
      
       Same — Metes and Bounds — Liability of Vendor.— See, citing principal case, Crislip v. Cain, 19 W. Va. 460; Butcher v. Peterson, 26 W. Va. 452.
    
    
      
      Note. Deeds also from Dawson and wife to ¡ Beverley, wit'll relinquishments of her dower, dated February 23d, 1803, (before the suit was • j brought,) were also deposited in the clerk’s office, and copied in the transcript of the record. — Note in Original Edition.
    
    
      
       Note. The deed contained a covenant for further assurance. Judge Roaxe therefore referred Mr.Williams to the case of Nelson v. Harwood, 3 Call, 394, as removing- the difficulty on this point. — Note in Original Edition.
    
    
      
       Virginia Laws, (Ed. of 1769.) p. 143.
    
    
      
       Revised Code, 1st vol. p. 157, ch. 90, sect. 6.
    
    
      
      Note.‘ It was stated in the deposition of Thomas ■Spillman, that John Wigginton was the reputed son of Richard Young-. — Note in Original Edition.
    
    
      
      Note. According to the exhibits, the title of Lawson, derived from the Routts, appears to have been as follows:
      The patent was granted to Peter Routt, sen. in the year 1726, for 714 acres. On the 15th and 16th days of February, 1764, he and his wife conveyed, by deeds of lease and release, fifty acres, part thereof, to James Withers, who, by like deeds, dated the 24th and 25th of June, 1771, conveyed the same to .Lawson. September 11th, 1776, John Routt conveyed to Lawson, by deed of bargain and sale, 855 .acres, to which the said John Routt was entitled, by virtue of an amicable division between himself and his brothers, Peter and James, who were devisees of Peter Routt, sen. Another deed, to the same purport, was made by John Routt, the 5th of August, 1793; (it seems,because the former had not been recorded;) and this deed was recorded the 23d of December, 1793; but Mary, his wife, was not privately examined, and did not, in the manner required by law, relinquish her right of dower; although both the deeds were signed by her. On the 5th of December, 1793, bonds were executed between James Routt and Lawson, for exchanging the 50 acres held by Lawson, as aforesaid, for other 51 acres belonging to James Routt, according to certain metes and bounds; but deeds not having been interchangeably executed, James Routt and others, (some of whom were, infants,) coheirs of the said James Routt, deceased, of the one part, and the said Gavin Lawson, of the other part, by a 'friendly bill and answer in Chancery, obtained a decree of the Court of Fauquier County, dated May 23d, 1803, directing the plaintiffs to execute a deed of release and confirmation to the defendant, and vice versa, which was accordingly done in June, 1803, by an indenture signed by Gavin Lawson, of the one part, and James Routt, William Routt, Peggy Routt. Edward Ballenger, (whose wife, Hannah, should also have signed, but did not,) and Peter Routt, guardian of Thomas Routt. Gabriel Routt. Elizabeth Routt, and Syntha Routt; which deed was recorded September 26th, 1803. — Note in Original Edition.
    
    
      
      Note. An award, made the 28th of June, 1787, by James Wright and James Routt, arbitrators, mutually chosen by Gavin Lawson and Edward Nugent, to settle a dispute between them, relative to their lands adjoining, was, “allowing the said Nugent’s to be the oldest patent, that, when the courses of the said Nugent’s land, reversed from the beginning, will intersect the first-mentioned line of the same, the same shall be the established corner now in dispute; but provided-the patent of the said Lawson’s land should hereafter be found to be the oldest, then that to have its courses notwithstanding.” Which of those patents was the oldest, does not appear in the transcript of the record. — Note in Original Edition.
    
    
      
       Note. The deposition of Thomas Spillman (the surveyor) stated, (among other things,) that he was appointed by Gavin Lawson and Carter Beverley, to survey the lands bargained for between them, in the counties of Culpepper and Fauquier: that the plat of the land in Culpepper, returned by him to the parties, and subscribed with his name, contained, as he believed, a true account of the lands which the said Lawson held under the deeds of John Lear, James Slaughter, James Dobie, and Zachary De-lany, which the deponent had carefully examined; that he surveyed the land in Fauquier, which was conveyed by John Routt, and by Robert Hopper, to the said Lawson, according to the courses of their conveyances, except so far as he understood the lines of Routt's land interfered with Edward Nug-ent’s land; as to which he was informed there had been an arbitration between the said Gavin Lawson and the said Nugent, which ended in favour of the said Nugent; and that he conformed his survey to the said decision, as he was informed of it; that the mill lot of fifty-one acres was surveyed agreeably to the bonds between James Routt and the said Gavin Lawson; and that the deponent was directed'.by the said Lawson to leave out all disputed lands, and in consequence thereof, did not compute a piece of land which was claimed by John Matthews, containing' about nine acres; that the deponent, when he surveyed the land in Culpepper, found the part sold by Zachary Delany to Gavin Lawson, did not hold out as much as the deed called for; and (as well as the deponent recollected) it did not exceed forty-four acres.
      
      The lands were sold by the Commissioners, according to the surveys made by Spillman, containing in all fifteen hundred and twenty-four acres. — Note in Original Edition.
    
    
      
      The quantity mentioned in that deed is “forty-seven acres, more or less.” — Note in Original Edition.
    
    
      
       6 Ves. jr. 653.
    
    
      
       2 Bro. Parl. Cas. 112.
    
    
      
       2 H. & M. 420.
    
    
      
       Sugden, 155; 6 Ves. jr. 653.
    
    
      
       Omerod v. Hardman, 5 Ves. jr. 722, and Rose v. Calland, id. 188.
    
    
      
       Sugden, 214.
    
    
      
      
         Not reported.
    
    
      
       2 Call, 183.
    
    
      
       Lyddal v. Weston, 2 Atk. 19, and Harvey v. Philips, id. 541.
    
    
      
       Omerod v. Hardman, 6 Vesey, jr. 737.
    
    
      
       Ibid. 186.
    
    
      
       S C. 4 Bro. Ch. Cases, 80.
    
    
      
       Sudden, 156.
    
    
      
       6 Vesey, jr. 653.
    
    
      
       Sugden, 157.
    
    
      
       See also Abel v. Heathcote. 2 Ves. Jr. 98.
    
    
      
       Hampton’s ex’ors v. Pollard, 4 H. & M. 451.
    
   Thursday, November 26th, 1812, the president delivered the following opinion of this Court:

“The Court is of opinion, that Gavin Lawson, by covenant, was bound to make a title to the appellant, for all the lands specified in his contract, bearing date the 26th of August, 1801; and that it was not competent for him to throw off any portions thereof, (as being in dispute,) because, out of the residue, he could make up the quantity of fifteen hundred acres; the appellant being entitled, by the agreement, to the residue, if comprehended within the boundaries shown him, (and which Lawson then claimed to hold,) and to compensation therefor, in case of eviction. By this it is not intended, that Lawson was bound to convey the lands which he had heretofore agreed to give in exchange to Routt; although the legal title may have remained in him, and the title not acquired for the land got in exchange, the latter being the land which he contracted to convey; nor was he bound to convey lands which had heretofore been established, by arbitration or compromise, not to belong to him, if any such there be; although his title papers may comprehend the same, unless such lands were held and claimed by him at the time of the sale, and shown as part of the land sold.

“This Court is also of opinion, that if Lawson’s title, in all other respects, had been complete, he was to blame in not making a conveyance, according to contract, on the first day of December, 1801, when 'the appellant was *ready to give bond and security; a knowledge of the number of acres being unnecessary to a completion of the title, and only necessary at a future day, in order to ascertain whether any, and what, deduction should be made from the purchase money.

“Whether the title was then complete in Lawson, or whether he, or those claiming under him, ever have been able to make an -indefeasible conveyance of the lands sold, or such a title thereto, as, agreeably to the principles of equity, would authorize a resort to that Court for a specific performance, or other relief, on giving bond to guard against remote and improbable contingencies, this Court cannot undertake to decide; the title being under such a cloud as to have made a reference and report necessary, in order to a correct judgment thereon; and, particularly, as the party came here for relief.

“The Court is further of opinion, that, as the appellant was ready, on the first day of December, 1801, to give bond and security, when it appears that Dawson considered himself not ready to convey; and, more especially, if he was unprepared to make a title, even at the institution of this suit, (as is suggested,) it was too rigorous to decree an absolute sale of the land on short notice; the appellant having been kept out of his title, and, consequently, deprived of the power to make sale of the property, so as to meet the growing instalments; that such decree would still be more oppressive, if it is true, (as is suggested,) that parts of the land actually sold, were thrown out of the survey, and the title only offered for the residue; should it, therefore, hereafter appear, on a reference of the title papers, and survey, to be made as herein after directed, that this contract can, according to the principles of equity, be enforced on both sides; yet, from the facts, as now disclosed, the Court is of opinion, that the decree ought to be for a specific performance; (the party having only stipulated for a personal security for his debt;) and only in the event that such bond and securiiy is not given within a ^reasonable time after the title is made and deposited in Court, and approved of by the judge, and after the appellees shall have performed such other acts as the Court may enjoin upon them, to hold the land bound for the purchase money, and to direct a sale thereof, after allowing such reasonable time, as is customary in cases of mortgages, to redeem the same by the payment of the debt and interest.

“Therefore, it is decreed and ordered, that the said decree be reversed, &c.; and that the cause be remanded to the said Court of Chancery, with directions to the Chancellor to order a survey of the lands, to be made by the parties, in the presence of commissioners, according to the directions of each party; and also in such way as the commissioners may direct; in order to ascertain, as well the quantity of the land sold, as whether any part, or parts thereof, and what parts have been thrown off by the surveyor, Spillman, in making the survey in the proceedings mentioned ; and that they report all matters specially. Also, that the title to the lands in controversy be referred to some proper commissioner, who is to examine and make report thereon to the Court; and although the Court would not have remanded the cause for that purpose alone, yet, as commissioners are appointed for the above purposes, the appellant is to have liberty to show, and prove to them, if he can, what parts of the personal property stipulated for, have not been delivered under the contract, and the value thereof; which they are to state and report, in order to a final decree.” 
      
      Note. Beverley, in his'answer. states, that, before he made the contract, he “examined the lines and boundaries of the lands, accompanied by two persons who were in the employment of Lawson, in order to have the lines accurately shown him.” But what lines were shown him are not set forth in | the answer. — Note in Original Edition.
     