
    *Christian v. Cabell & als.
    March Term, 1872,
    Richmond.
    1. M conveys a house and lot to W in trust for B for life, remainder to her children. On the 30th of June 1870, B contracts in writing- with O, to sell to him the property for $10,000, on the terms of $2,000 when he received a good deed for the property, and the balance in five years’ equal annua] payments; possession to be delivered on the 15th July. B to procure the approval of the contract by the proper court without cost to C. On the 9th of July, W files his bill against B and her children, to have the contract approved, and by a decree on the same day the contract is approved, and W is directed to convey the house and lot to C with special warranty. On the same day, W executes the deed, and hands it to C, who in a few days writes to W, stating various objections to the title, and saying he cannot have anything to do with the property in the state of the title. On the 15th July, W tenders C possession, saying, any obj ections which may be made to the title are erroneous or imaginary. And thereupon O refuses to take possession, and renounces the contract. Held :
    1. Judicial Distinguished from Private Sale.—This was a private, and not a judicial sale, and C is not concluded by the decree from making obj ection to the title.
    2. Deeds —The undertaking to make “a good deed” is not confined to the form of the deed, but includes a good title.
    3. Objections to Title—Waiver.—If C had taken possession, and performed the contract on his part, by paying the cash payment and executing bis bonds, be would thereby have waived his objections to the title.
    2. In this case the house and lot had been owned by G, who sold and conveyed it to M. Whilst G owned it, she being a member of a Building Fund Association, borrowed from it $2,000, and gave her bonds, in the penalty of $4,000, and a deed of trust to K, to secure her liabilities to the association. She had paid up all dues until December 1863; but there was an uncertain, amount for which the property was still liable; and this could only be ascertained by a suit in equity and an account; and this incumbrance was unknown to 0 at the time of the contract. The house had been consumed by fire before proceedings were instituted by W against O to enforce the contract. Held:
    **• Purchase of Fee Simple—Presumption as to Incumbrance.—In a contract for the purchase of a fee simple estate, if no incumbrance is communicated to the purchaser, or be known to him, he must suppose himself to purchase an unincumbered estate.
    2. Same—Objections to Title—Extent.—The objections which a purchaser may make is not entirely confined to a doubtful title. It applies to incumbrances of every description which may in any manner embarrass the purchaser in the full and quiet enjoyment of his purchase.
    3. Same—Same—Same—Undefined Incumbrances.— There is a difference between a defined and admitted charge, to which the purchase money may, by consent, be applied when it becomes due, and a contested charge, which will involve the purchaser in an intricate and tedious lawsuit of uncertain duration.
    4. Same—Same—When Specific Performance Decreed.—In some instances the court will decree specific performance if the vendor is prepared to comply with his covenants at the hearing; and the court will afford him a reasonable time to remove incumbrances, and perfect his title. But this is a matter of favor to the vendor, only to be granted in cases which admit of such relief without prejudice to the rights of the vendee.
    5. Same—Same—Same—When Denied.—The court will not give time to the vendor when the defect to be remedied was known to the vendor or his attorney at the time of the contract, and was concealed from the purchaser.
    
      6. Same—Same—Same—Same.—Especially will such indulgence be denied to the vendor when, besides a failure to disclose the existence of incumbrances, an account is necessary to ascertain the state of the title, the extent, nature, and amount of such incumbrances.
    7. Same—When Purchaser Becomes Owner.—The purchaser of real estate is the owner from the date of the contract, when the vendor is in no default, and is prepared to convey a clear title. But he is not the owner till the vendor can make a title according to the contract.
    8. Same—Same—Loss Occurring Previously.—Any loss occurring to the property before the vendor is in a condition to convey a clear unincumbered title must fall on him, and not on the purchaser.
    9. Same—Same—Same.—The house having been consumed by fire, whilst the incumbrance on the property still existed, so that W could not make a good title to it, the loss must be borne by B and her children, and not by O.
    By deed bearing date on the 18th of July 1860, Mayo Cabell and wife conveyed to Wm. D. Cabell a certain *house and lot in the city of Lynchburg, known as the Lynchburg Female Seminary, and also furniture and other personal property, in trust—first, to secure certain notes which Mayo Cabell had given in part of the purchase money of the property, and second, for the sole and separate use of Mrs. Margaret B. Brown, wife of Robert L. Brown, and daughter of Mayo Cabell. The deed provided that the property might be sold for the payment of the debts, or if Mayo Cabell paid them, that he might direct a sale for repayment to himself of the amount he paid for this object.
    By another deed, bearing date the 10th of March 1863, reciting that Mayo Cabell had paid the debts secured by the first deed, and that he desired to release the lien to secure said debts, and to give to his daughter, Margaret B. Brown, and her children, the debt thus due to him, he grants and releases the said debt due to Wm. D. Cabell, for the uses and purposes declared in the first deed, except as follows: that the said Wm. I). Cabell shall hold the said property to the extent of fourteen thousand dollars and interest, for the benefit of the said Margaret B. Brown during her life, free from the debts, liabilities or contracts of the said Margaret B. Brown, the said Wm. D. Cabell, her trustee, or any agent employed by either of them; and at her death, that sum to be equally divided among her children then living, and the descendants of such as may be dead, according to the act of descents and distributions of the State of Virginia. The purpose of this deed being to secure said sum of money to Mrs. Brown during her life, without liability to diminution from any cause or source, and for distribution among her descendants at her death.
    
      On the 30th of June 1870, Robert L. Brown and Margaret B., his wife, by their attorneys, A. F. Robertson & Co., entered into a written agreement with J. H. Christian, by which they sold to Christian the house and 'x'lot known as the Lynch-burg Female Seminary property, and the same conveyed by the deed of Mayo Cabell, on the following terms: Christian was to pay for said property the sum of $10,000, of which $2,000 was to be paid in cash on the delivery of a good deed to the property, and the residue in five equal annual instalments, dating from the delivery of the deed, bearing interest at the rate of six per cent. Bonds to be executed by him for the deferred payments, secured by a lien on the property reserved in the deed. Brown and wife were to give possession to Christian not later than the 15th of July 1870, and to procure the approval of the contract by the proper court, without cost or charge to Christian. And Christian agreed to deposit with Geo. M. Rucker the sum of $500 as earnest money, in part of the cash payment of $2,000.
    On the 9th of July 1870, Wm. D. Cabell filed his bill in the Hustings court of the city of Lynchburg, in which he refers to the deed of March 17th, 1863, from Mayo Cabell to himself. He says that the use of the property as a boarding school for young ladies, contemplated in s<?.id deed, has proved a source of loss instead of profit to the cestuis que trust in the deed, who have no other means of support beside the said trust subject. He sets out the sale made to Christian, and says that the interest of all the beneficiaries in said trust will be promoted by the confirmation of the sale, and the investment of the net proceeds, under the direction of the court, in the purchase of a suitable home in the country. And making Brown and wife and their five children parties defendants, he asks that the said sale may be confirmed, and that the proceeds of sale may be reinvested, and for general relief.
    On the same day Brown and wife answered, concurring in theprajmrof the bill; a guardian was appointed for the infants, who filed his answer; and the eldest son, being over fourteen years of age, also answered, concurring *in the object of the suit; depositions were filed, and the court being of opinion, from the depositions filed, that the sale to Christian was judicious and beneficial to the cestuis que trust, confirmed it, and decreed that upon the compliance by Christian with the terms of the sale, Wm. D. Cabell do execute to Christian a deed in fee simple for said lot, with special warranty of title ; but reserving upon the face of said deed a lien on said lot, for the payment of the five deferred payments. But the said Cabell was not to deliver the deed to Christian until Christian produced to him the certificate of the clerk of the court, that the certificate of deposit of the cash payment and the five bonds were filed with the papers in the cause. ¡
    On the same day on which the decree was made, Wm. D. Cabell, by virtue of the au-. thority of that decree, made a deed to Christian, by which he conveyed, with special warranty, the house and lot, reserving a lien upon the property to secure the purchase money. This deed was submitted by Christian to his counsel, and on the 15th of July he wrote to Robert L. Brown, saying: “I learn from my lawyer that your property is very seriously encumbered by lien, deed of trust, irregularities in the dowry rights, &c. Again, were the property free from encumbrance, the deed which you tender contains omissions fatal to its validity.” He concludes by saying: “I can have nothing to do with the property while the title is thus involved in uncertainty, and delay is fatal to my plans and purposes. ’ ’
    On the same day, Wm. D. Cabell, by his attorney, wrote to Christian. He says: “To-day being the day fixed in our contract, I respectfully inform you that I am ready, and that all the parties are ready, to give you possession of the ‘Lynchburg Female Seminary’ property, and do hereby tender you possession of it, in accordance with the terms of the contract. I am prepared to make you a ‘good deed’ to the property as ^agreed, and any objections which may be made to it are erroneous or imaginary.”
    In August 1870, Christian, by his counsel, wrote to Cabell, and says: “This is to notify you that I hereby refuse to receive the deed which you have executed to me for the property known as the Lynchburg Female Seminary, and that I decline and renounce the purchase of said property; said purchase having been made by me in ignorance of the fact that the title held by you to the property is bad; that the legal title thereto is outstanding in the hands of the trustees of the - Building Fund Association. The deed you tender me leaves the title thus embarrassed and the property encumbered with an uncertain and troublesome lien, and the legal title is in the hands of trustees to secure that lien. If I had been informed of the existing state of things, I should have declined the purchase of said property ; and I now refuse to take it on any terms, and hereby request the contract with which you have failed, and are not now able to comply, may be cancelled and delivered up. ”
    On the 12th of August 1870, on the petition of Brown and wife, and Cabell, the court made a rule upon Christian, in the case pending in the court, returnable to the 19th of the same month, to show cause why he should not proceed to execute the contract filed in the cause, and dated June 30th, 1870, and the decree of the court dated the 9th of July 1870, in conformity with said contract.
    On the 15th of September Christian appeared and answered the rule. He objected to the proceeding by rule in this case, and objects to the validity of the contract, and to the sufficiency of the deed, insisting that by the contract he was to have a good title to the property; and he states several objections to the title, but it is only necessary to state two of them. One is that the legal title of said property never was at any time vested in Wm. D. Cabell; for on the 14th of March *1857, the Misses Gordon, then owners of said property, conveyed the same to C. T. Wills, R. G. H. Kean, and Samuel Tyree, in trust to secure a compliance by said Gordons with an executory undertaking and contract by said Gordon with the--Building Rund Association. The lien has never been discharged, and the property still remains bound to secure a compliance with said contract, the liabilities under which have not been ascertained. The other objection is, that the contract was to have been completed on the 15th of July. It was essential to the interest and purposes of the respondent that such should be the case, and the parties who dealt with him were thus informed; and hence the provision in the contract on that point. The property was purchased to be used for a large female boarding and day school; it was greatly out of repair, and unfit to be used for these purposes until important and expensive repairs were put upon it. The party selling having failed to comply with their contract on or before the 15th of July, respondent renounced it altogether, the element of time, by express provision and mutual understanding of all parties, being an essential one. Having failed in this respect, respondent was compelled to rent a house, and make other arrangements. And he says that the buildings on the ground were, on the night of the 1st of September, wholly consumed by fire.
    Upon the filing of his answer Christian moved the court to discharge the rule; but the court overruled the motion for the present, and ordered one of the commissioners of the court to examine the state of the title to the property in controversy, and ascertain whether there is any defect in the same ; and also whether there be any incumbrance thereon, and, if so, what is the character of said incumbrance, the amount, and by whom held; and make report of all these matters to the court.
    On the 30th of September 1870, Commissioner Lewis returned his report. After detailing the conveyances of *the property, he speaks of the incumbrances. He says: The questions, whether there be any incumbrance on the property, and its character and amount, present profound difficulties; and your commissioner, not without diffidence and hesitation, returns the result of his investigations. The debt of the Misses Gordon, their complex contract with the Lynchburg Building Rund Association, and the deeds of trust to Messrs. Wills, Kean, and Tyree, without doubt constitute an incumbrance of the property in litigation. The Misses Gordon, who had twenty-one shares in the Lynch-burg Building Rund Association, took loans or advancements at different times, $2,040, upon which they paid interest to December 31st, 1863. They also paid their periodical dues and instalments to that date. Numbers of shareholders paid in all dues, and got nothing. There is evidently an indebtedness, which must enure to the benefit of that class, and it is easily traceable to those who borrowed.
    To ascertain what is the debt due the association is utterly beyond the resources of your commissioner, because, while all the securities were originally good, many have been substituted by worthless collaterals, ■and the debtors have since become insolvent; and, moreover, part of the money paid in and loaned was Confederate currency, scalable at as many as twenty-four different values. To fix it, then, in this cause, is a compound impossibility. He makes calculations by which he says it may be that the debt of the Misses Gordon may not be more than $108, with interest from the 1st of January 1864. This excludes all idea of the premium of fifty per cent, on $2,044=$1,020, the breach of the conditions of their bonds, to pay instalments and interest, to keep the houses insured, &c., &c. ; and charges them with no loss superinduced by dealings in Confederate currency and securities otherwise. Introducing into the computation 'these varying and shifting elements, to be fixed only after protracted and uncertain litigation, it must be *apparent that the indebtedness of the Gordons must very far exceed the sum of $108, with interest from the 1st of January 1864, mentioned above. It may reach $1,100, but cannot on any principle, it is apprehended, be swelled to a much higher figure. If he must state a precise sum for their indebtedness secured by deeds upon one-half of the property, he fixes it at $800. This report, so far as it attempted to fix the amount of the debt of the Misses Gordon, as well as on other grounds, was excepted to by Christian.
    The deposition of Camillus Christian, who had been the treasurer of the Lynchburg Building Rund Association during its whole existence, was filed in the cause. He states that the Misses Gordon held twenty-one shares of the stock of the association, and their debt was $2,040, for which they gave their bonds and deeds of trust on the property known as the Lynchburg Remale Seminary. He is unable to say what is the amount of their debt, by reason of the nature of their obligations; and the losses of the association being uncertain, as well as to who are to sustain those losses, he can make no estimate. The constitution and by-laws require the institution to continue till each share of stock is worth $200. There is about $28,000 of Confederate bonds on hand, as part of the assets, and some others were taken as collaterals; and large amounts secured to the association upon property, bonds, or other collaterals, are wholly worthless. The stock of the association consisted of one thousand shares, of which six hundred shares have been redeemed, leaving four hundred for redemption. There being no board of directors, a suit in chaneery has been brought to wind up the institution.
    J. N. Gordon, the brother and agent of the Misses Gordon, states in his deposition, that the instalments and interest, as required by the institution, were paid up by them as long as any officer could be found to receive them. *Mr. Brown, who was examined as a witness, says he did not, during the negotiation with Mr. Christian, inform him that there was any blot upon the title, because he did not at that time know that there was any. He did not know the lien of the Building Bund Association existed in 1860, when Mr. Cabell purchased the property. But the Gordons bound themselves by their deed to remove all incumbrances, and he had particular assurances from Mr. J. N. Gordon that this lien should be removed. He thinks Mr. Gordon told him it had been removed; at least, he thought it had been, when the last payment was made by Mr. Cabell. And being under the impression that the title was perfectly clear, so expressed himself to Mr. Christian, who he does not doubt signed the contract under that impression.
    In the progress of the cause it was reported to the court that the building on the lot was burned, and an order was made appointing commissioners to sell the old bricks, and they had reported the net proceeds of the sale at $410.88.
    On the 7th day of March 1871, the court made a decree enforcing the contract, directing the cash payment to be deposited in the bank of Miller & Branklin, and the bonds to be executed within ninety days from the date of the decree. And if Christian failed to perform the decree, commissioners were appointed to sell the property. And leave was given the plaintiffs to amend their petition, and make the Lynchburg Building Bund Association, the Misses Gordon, and the trustees in their deeds, parties. Brom this decree Christian applied to this court for an appeal, which was allowed.
    Kirkpatrick & Blackford, for the appellant :
    1. This is not a contract of which specific performance will be decreed:—
    (a) Because it was not mutual. The vendor, Brown, had no interest in the property sold, and had no authority *to sell. 1 Sug. on Vend. p. 281; 2 Lo-max Dig. p. —; Dart on V. & P., 461; Bry on S. P., 198; Clarke v. Reins, 12 Gratt. 98; Hoover v. Calhoun, 16 Gratt. 109; Duvall v. Myers, 2 Mary. Ch. Dec. 401; Bodine v. Glading, 21 Pa. R. (9 Harris) 50. Mutuality must exist at the time of the contract. Bry on S. P. §298; Moore’s Adm’rs v. Bitz Randolph, &c., 6 Leigh, 175. Cabell, trustee, was not a party to the contract, and Christian not a party to the suit.
    (b) Because the deed tendered with the possession was not a “good deed”—did not convey a good title. It did not convey the title to the property, which vested in Cabell, trustee, not under the deed of March 1863, but under that of July 1860. The latter deed not referred to in Cabell’s deed to Christian, and no where alluded to in the decree of 9 July 1870. 2 Lomax Dig. 104, § 45; Garnett v. Macon, 6 Call, 309; Bryan v. Loftus, 1 Rob. R. 19; Sug. V. & P., 271-4; Cooper v. Denne, 4 Bro. Ch. C. p. 80, and notes; Jackson v. Ligon, 3 Leigh, 161; Watts v. Kinney, Id. 272; Lechemere v. Brazier, 2 Jac. & Walk. R. 286. The legal title outstanding in trustees to secure obligations to the Lynchburg Building Bund Association, constituted an incumbrance, not exact or definite in its amount, and not removable at the pleasure of Ca bell, trustee.
    This incumbrance, when called to the attention of Cabell, trustee, was neither assumed nor acknowledged by him. This gave Christian the right to abandon the contract. Garnett v. Macon, supra.; 1 Lom. Dig. supra.
    (c) Before the vendor can enforce specific performance, he must show himself ready and able to convey a good title. He must have command of the full title and of all outstanding incumbrances. 3 Parsons on Contr., under head of Speci f. Performance; Bank of Columbia v. Hagner, 1 Peters U. S. R. 455; Griffin’s Adm’r v. Cunningham, 19 Gratt. 571.
    (d) Before the contract was consummated, and while *vendee was not in default, the buildings were burned, and the value of the property seriously impaired. Sug. on V. & P., 334, § 13; Garnett v. Macon, 6 Call, 309.
    2. But if the contract was perfected by the decree of July 9th, the vendee was never properly impleaded. The suit was not brought for specific performance. Christian was not a party to it, nor bound by any of the proceedings. He should have been made a party at first, or a new suit should have been instituted against him when Cabell had fully complied with the contract.
    3. The proceeding by rule against an unwilling purchaser at a judicial sale is no precedent for the court’s proceeding in this case. In such cases, the courts declare that the proceeding by rule nisi is based on the ground that the vendee has dealt with the court, and submitted himself to its jurisdiction in the case. Here there had been no suit; no authority from the court; no submission to its jurisdiction. Christian was neither an actual nor quasi party to the suit. He had dealt with one who had no shadow of title or authority from any source. The confirmation of his contract was without his knowledge. His contract had specified no court in which the suit should be brought, and did not fix the time when it should be instituted. He, therefore, had neither actual nor constructive notice of the proceedings till the contract had been approved and confirmed. In Garland v. Loving, 1 Rand. 396, this court held that the court might approve a sale already made; but in that case Loftus, the purchaser, was a party defendant, and consenting to the confirmation. Eor grounds on which the court may proceed against a delinquent purchaser under its decree, see Clarkson v. Read, 15 Gratt. 288; Gross v. Pearcy, 2 Pat. & Heath R. 483; Daniel v. Leitch, 13 Gratt. 195; Cooper v. Hepburn, 15 Gratt. 551.
    4. No title should have been forced on the vendee, Christian, till the holders of the legal title, and all interested in outstanding incumbrances, had been made ^parties. Till that was done, the title was not under the control of the vendors, or of the court. If purchase money should be lost, the property still remained bound, and the vendee unprotected.
    John Daniel, and Bouldin, for appellees:
    1. This was a judicial sale. Christian knew that Brown and wife had no authority to make the sale, and the contract provides that it shall be confirmed by the court. This was done. The conveyance tendered by Cabell was not made by virtue of his power as trustee, for as such he had no power to make a deed but it was made by the authority of the court. The court may-make a judicial sale as well by confirming a contract previously made by the parties interested, as by appointing a commissioner to sell. In either case the sale is the act of the court, not of the parties or the commissioner. Garland v. Loving, 1 Rand. 396; Daniel v. Leitch, 13 Gratt. 195, 213; Goddin v. Vaughan, 14 Gratt. 102; Ex parte Minor, 11 Ves. R. 559; Cooper v. Hepburn, 15 Gratt. 551.
    2. Christian knew that the court was to be asked to confirm the contract; and if, as he insists, time, as to title, was of the essence of the contract, he knew that the application to the court must be immediate. If, then, he wished to investigate the title before the sale was confirmed, he knew he must do it before the application to the court was made. Having neglected to do this, he stands upon the footing of a purchaser at a judicial sale after it has been confirmed; and it is a matter of grace to him if he is permitted to show any objection to the completion of the sale. Threlkeldz v. Campbell, 2 Gratt. 199; McClung v. Young, 9 Id. 336. And the only objections that can be made are irregularities in the proceedings. Daniel v. Leitch, 13 Gratt. 195, 213. Nor is it any objection that there was no time allowed for the investigation of the title after the commencement of the *proceedings, and before the decree confirming the sale. In Cooper v. Hepburn, 15 Gratt. 551, the sale was by secret biddings, not opened until the court was in session, and the purchaser did not know that he was the purchaser until the moment the decree confirming the sale was entered; and yet he was not allowed to make objections to the title afterwards.
    3. The mode of proceeding by rule was proper. Christian might have been made a party to the suit if he had chosen, as was done in Garland v. Loving; but it is obvious from his whole conduct that he did not expect or wish to be. He was to bear no part of the cost or expense. Certainly generally purchasers at a judicial sale are not parties as such in the cause. They become quasi parties, and thus submit themselves to the authority of the court for the enforcement of the contract; and when this becomes necessary they are brought in by a rule upon them to show cause why they shall not be compelled to execute the contract. On this point there can be no doubt since the decision of Clarkson v. Read, 15 Gratt. 288.
    4. The only plausible objection to the title in this case is the lien of the Lynchburg Building Eund Association. The whole penalty of the bonds of the Misses-Gordon is $4,000, and it is impossible therefore that under any possible circumstances the lien on the property could exceed that sum. It is equally certain that it could not reach the half or the third of it. The commissioner reports that he had paid up everything until December 31st, 1863, showing, indeed, that they had paid $92 on each share of their stock, whilst the whole sum borrowed by them was but $2,040. And Mr. Gordon, their brother and agent, says he paid for them every due as long as an officer of the association could be found to receive it; and he believed the lien was paid ofi. Then in any case that could occur, here was a purchaser who would have eight thousand dollars of the purchase money in his hands for one year,' six thousand *dollars for two years, and at the end of five years he would have in his hands sixteen hundred dollars, and at the end of four years double that amount, to meet and discharge any debt that might be found due from the Misses Gordbn to the Lynchburg Building Eund Association. Surely it will not require four years to wind up this concern, and ascertain the amount of this debt of the Misses Gordon; and as their stock in the association is first responsible, and they are personally bound, and Christian would have in his own hands the money to pay the debt, he might well leave the Misses Gordon and these appellees to contest that claim, and give himself no trouble about it. We say, then, that this incumbrance is no objection to the title. 1 Parsons Sel. Equ. Cas. 37; Dalzel v. Crawford, Seymour v. Delancy, 3 Cow. R. 246.
    5. Time was not of the essence of the contract as to the title. The possession at an early day was important to Christian, and that is provided for in the contract; and the record shows that we were ready on the day, and so informed Mr. Christian, to deliver to him full possession of the property. The contract certainly does not fix a day for the making of the deed; but shows on its face, that the court was to be asked to approve the sale and djrect a conveyance before it could be done. Nor was it at all important to him whether the deed was made in July 1870 or July 1871. He did not purchase for speculation, but for his own use; and so he got a good title in any reasonable time it was the same to him. In fact we tendered to him a deed before the 15th of July. He says there are omissions in it which render it fatally defective. So far as form is concerned, he had only to point them out to have them corrected; and if we have been successful in showing that the incumbrance to the Lynchburg Building Pund Association is not a valid objection to the execution of the contract, then there was no substantial objection to the deed which we tendered. *But to make time of the essence of the contract it must be so expressed and fixed at the time of the contract. Hipwell v. Knight, 1 Young & Col. R. 401; Hepburn v. Auld, 5 Cranch R. 262; Roberts v. Berry, 3 De Gex, McN. & Gord. R. 284.
    6. If, as we insist, the sale stood confirmed by the decree of the 9th of July, then Christian must bear the loss occasioned by the destruction of the property. Or if, as we have endeavored to show, the incumbrance on the property was not sufficient to forbid an execution of the contract, then the appellees were in no default, and the destruction of the property is not a sufficient ground to defeat the contract. Low v. Treadwell, 3 Fairf. R, 441; Paine v. Meller, 6 Ves. R. 349.
    
      
      Specif ic Performance—Compensation.—For a collection of cases where, in a suit for specific performance, compensation will be decreed, see Hendricks v. Gillespie, 25 Gratt. 181, and note.
      
    
    
      
      Same—Defects in Title.—The court, in Broyles & Harry v. Bee et als., 18 W. Va. 520, says; “It is true, as they claim, that a contract to sell a fee simple estate implies in the absence of an express stipulation to the contrary, that the estate is unincumbered, and that the vendor has good title, and that there are no incumbrances on the land, that may in any manner embarrass the purchaser in the full and quiet enjoyment of his purchase. Christian v. Cabbell et at., 22 Gratt. 82; Garnett v. Macon, 6 Call 309. But if the vendor does not affect to have a perfect title, and expressly sells such as he has with special warranty, he is entitled to specific execution without being first required to show a clear title. Bailey v. James, 11 Gratt. 468; Goddin v. Vaughn, 14 Gratt. 124; Vail v. Nelson, 4 Rand. 478; Sutton v. Sutton, 7 Gratt. 234.” As to waiver of objection to title, see Fleming v. Holt, 12 W. Va. 151. In Clark v. Gordon, 35 W. Va. 735, 14 S. E. Rep. 255, it was held that a purchaser entitled to a good title need not pay purchase money until he is tendered a good title.
    
   STAPLES, J.

As a general rule the purchaser at a judicial sale is required to pay the consideration for the estate, although it be destroyed or taken from him by superior title before a conveyance is executed. Por the purposes of this case, it is unnecessary to state either the modifications or exceptions to this rule. The question to be considered is, whether the sale here is of that character. The written agreement is filed as an exhibit in the cause. It purports to be a memorandum of a contract between R. L. Brown and wife of the one part, and the appellant, as purchaser, of the second part. It recites that the parties of the first part had sold the property upon certain terms therein mentioned; that the purchaser was to make a payment of two thousand dollars upon the delivery of a “good deed,” and to execute his bonds for the deferred instalments; and that said Brown and wife had agreed to give possession of said property to the vendee not later than the 15th July 1870, and also to procure the approval of the proper court to the contract without charge or cost to the purchaser.

It is impossible to regard this in any other light than a private contract of sale and purchase. The court was *not asked or expected to make, but to confirm a sale already made. Its aid was invoked to ratify what had already been done, to sanction terms already agreed by the parties. The vendors believed that they, and others in whose behalf they acted, had a perfect title to the property, and they undertook with the aid of the court to convey such title. The evidence in the record establishes that fact. The agreement to make “a. good deed” is not simply a covenant to execute a deed in legal form with proper warranty, but to convey a good title. This was conceded in the argument, and is well settled upon authority. Ery on Specific Performance, and cases cited in note, page 347; Fletcher v. Bulton, 4 Com. 397.

It would be most unjust to apply to a contract of this character the principles governing judicial sales. The purchaser at such sale perfectly understands that the court does not undertake to convey a good title, and that it is his duty to make all necessary inquiries in regard to the estate he is purchasing. But when the purchaser has stipulated for a good title, is he to be compelled to take a defective one because the court had rendered a decree approving the sale? It is idle to say that a conveyance under the decree satisfies the covenant for good title, when in fact there is no good title.

When a person purchases at a judicial sale, he thereby becomes in a certain sense a party to the cause, and submits himself to the jurisdiction of the court. In this case the appellant was no party to the suit for confirmation in any sense. It does not appear that he was even apprized of the court in which it was pending until after the decree was rendered. The contract was entered into on the 30th of June 1870. The suit was instituted without process on the 9th of July; the bill and answers filed, decree obtained, and deed prepared on that day. Shortly thereafter, within four or five days, the appellant was first informed of the difficulties in respect to the title. Immediately, without ail hour’s delay, orally *and in writing, he communicated these difficulties to the appellees, and informed them of his determination not to have anything to do with the property in the confusion and uncertainty attending the title. The trustee replied through his counsel, that he was prepared to deliver the possession and to make a good deed, and any objections made to it “were erroneous or imaginary.” If, under these circumstances, the appellant had accepted the deed and the possession, made the payment as agreed, and executed his bonds for the deferred instalments, it is clear he would have thereby waived every objection to the title, and effectually precluded himself from any valid claim to relief or indemnity. If authority were necessary in support of this proposition, it may be found in Daniel et als. v. Leitch, 13 Graft. 195, 212. In 1 Sugden on Vendors, the rule is thus expressed: 1 ‘Where difficulties occur in making out a good title, the purchaser should not take possession until every obstacle is removed.” The reason is that such a measure will generally be regarded as an acceptance of the title. Ery on Specific Performance, 868.

It seems to me, therefore, that the appellant is not precluded by the decree of the court, nor by anything that has occurred, from abandoning the contract. It only remains to consider whether he was? justified in so doing. And this brings me to the question whether the vendors, at the date of the sale, or at any other time, were able to make a good title according to the terms of their covenant; if not, what effect this had upon the rights and obligations of the parties.

The appellant suggests various objections to the title. I propose merely to consider those which relate to the incumbrances upon the property.

It appears that the Misses Gordon, under whom the vendors claim, in the years 1856 and 1857, received from the Lynchburg Building Bund Association an advance of $2,040, for the redemption of their twenty-one shares of *stock in said association; that they executed their bonds with condition to pay all monthly dues, interest, fines, and charges for which they might be liable according to the constitution and by-laws of the association. They also gave two deeds of trust upon the property in controversy, containing various clauses and covenants not necessary to be particularly mentioned. They are such as are usually found in mortgages and trust deeds executed to these associations in this State. It further appears that the Misses Gordon punctually paid all their dues prior to the 31st December, 1863; but have been in arrear since that time.

Subsequent to the 1st January 1863, all dues and instalments were paid by the members in Confederate treasury notes; and the association has sustained heavy losses by investments in that currency, having now on hand about $28,000 in Confederate bonds. Since 1864 it has ceased active operations, although the constitution and by-laws require its continuance until each share is of the value of two hundred dollars.

The first question suggested by these facts is, whether the holders of the four hundred unredeemed shares, who have received nothing, may not require that the association shall resume and continue its business until their shares attain their par value; and further,' whether the property in controversy may not at any time be sold, under these trust deeds, for all the arrears and delinquencies of the Misses Gordon since 1863, including monthly instalments, fines and interest, and other dues. .

And secondly, if such sale shall be made, will not the trustees be required also to receive and set apart a sum sufficient, with other contributions, to give to the shares the value agreed upon in the constitution and by-laws; and how is the necessary amount to be ascertained—upon what principle is the calculation to be made? Thirds, whether the debtors to the association—they whose shares have been redeemed—may insist that the association *shall be at once dissolved, and their estates released from the liens thereon; and if so, upon what terms are they to be released?— how is the account of losses to be stated and adjusted," and how apportioned between those who have received all the available funds and those who have received nothing?

These are perplexing and difficult questions, which, in the language of the commissioner, can only be settled “after protracted and uncertain litigation.” No subject has created more embarrassment and difficulty with the courts and the profession than that which relates to the rights, powers and duties of these building associations. At the present term a number of cases have been argued before us, involving questions of a complex character, and occasioning almost endless diversity of opinion. It is understood that many others are pending in the courts below, presenting the identical questions suggested by this record. The whole matter is confessedly involved in doubt and obscurity, justifying the remark of an English chancellor, that their “articles are, to a considerable extent, unintelligible, and not very consistent;” so that it is now generally agreed the rights and duties of these associations, the proper construction of their charters, and the liabilities of the several stockholders, the nature, operation and effect of the bonds and mortgages can only be settled by the courts. In the present case the treasurer states that by reason of the nature of the obligations of the Misses Gordon, and the losses of the association being wholly uncertain, it is impossible to make an estimate of the amount of their indebtedness. In the language of Chief Justice Marshall, in Garnett v. Macon, 6 Call, 309, 367, “It cannot be doubted that these difficulties, if presented to the mind of a prudent man, contemplating the purchase of an estate, and desirous of performing his contract according to its terms, might have serious influence on his conduct, and might deter him from making the purchase. *If informed of them after making the contract, but before its execution bj1' the paying of the purchase money and receiving a" conveyance, he would have such strong motives for stopping entirely, or, at least, for pausing until the impediments could be removed, as would, I think, justify him for so doing, in the opinion of any reasonable man.” These observations apply with peculiar force in this case. The object of the appellant in making the purchase was to open a large female school in the building at an early day. The property demanded repairs of an extensive character. The establishment of the school required a considerable outlay of money in the beginning. Under these circumstances, the appellant might well refuse to complete the purchase of property liable at any time to be sold, subject to incumbrances of unknown amount, and the very possession of which might expose him to expensive and vexatious litigation. No one supposes, for a moment, that the appellant would have made the purchase had he been apprized of the condition of the title. Why was he not informed of it? Mr. Brown admits that he knew of the existence of the incumbrances shortly after the property was purchased from the Misses Gordon. His apology for failing to communicate the fact to the appellant is, that he had particular assurances from Mr. J. N. Gordon the liens should be removed, and he thinks Mr. Gordon told him it had been done. No one attributes to Mr. Brown any fraudulent intent, but it was his duty to inform himself accurately before undertaking to represent to the purchaser the state of the title.

In the case of Garnett v. Macon, before cited, Chief-Justice Marshall said: “In a contract for the purchase of a fee simple estate, if no incumbrance be communicated to the purchaser, or be known to him to exist, he must suppose himself to purchase an unincumbered estate. ’ ’ In answer to the argument made at the bar, that the decisions were confined to cases where the title was 'x'doubtful, and not where there was a mere money charge upon the estate, he said: “The objection is not entirely confined to cases of doubtful title. It applies to incumbrances of every description which may in any manner embarrass the purchaser in the full and quiet enjoyment of his jiurchase. There is certainly a difference between a defined and admitted charge, to which the purchase money may by consent be applied when it becomes due, and a contested charge, which will involve the purchaser in an intricate and tedious law suit of uncertain duration.”

I do not deem it necessary to quote any other authority in support of this doctrine. It is fully sustained by the cases of Freer v. Hessee, 21 Eng. L. & E. R. 82; Salisbury v. Hatcher, 6 Jurist, 1051; 1 Sugden on Vendors, 7th Am. edi., p. 84; Hunt v. Saunders, 1 Monr. 219; Sturtevant v. Jacques, 14 Allen R. 523. See also cases cited in 2 Dan. Ch. Prac. 989, note.

It is true that specific performance will be decreed in some instances where the vendor is prepared to comply with his covenants at the hearing, and the court will afford him a reasonable time to remove incumbrances and perfect his title. But this is a matter of favor to the vendor, only to be granted in cases which admit of such relief without prejudice to the rights of the vendee. This indulgence will not be granted where the defect to be remedied was known to the vendor of his attorney at the time of the contract, and was concealed from the purchaser. In Dalby v. Pullen, 3 Sim. R. 29, a defect in the title, though known to the vendor’s solicitor, was not communicated to the purchaser. ‘‘The vice-chancellor said that the parties by such conduct had precluded themselves from the benefit of the rule which prevails in the court, as to the time allowed to vendors to remove objections to the title. And accordingly, a motion by the purchaser to be discharged from the purchase was granted, though the vendors had removed the defect before the motion *was made. See also Lechmere v. Brasier, 2 Jac. & Walk. R. 287, Fildes v. Hooker, 3 Mad., 1 Sugd. Vend. 350. And more especially will such indulgence be denied where, besides a failure to disclose the existence of incumbrances, an account is necessary to ascertain the state of the title, the extent, nature, and amount of such incumbrances.”

I have seen no case in which it has been held that a purchaser has been required to await the institution of a suit, and the settlement of contested accounts between third persons, to afford the vendor an opportunity of removing incumbrances and perfecting his title. Dart on Vendors, 70; Sidebotham v. Barrington, 3 Beav. R. 528; Fosters v. Hoggart, 14 Jurist, 757; Arnot v. Briscoe, 1 Ves. Sr., 94.

It is very questionable whether, under these circumstances, a court of equity would decree in favor of the vendors, even if no change had taken place in the condition of the estate. Inasmuch, however, as the property which was the sole inducement to the purchase, has been destroyed by fire, without the fault of the vendee, before the vendors were in a condition to remove the cloud upon the title, it would seem very clear it is not a case for specific performance. Where an event happens which determines the existence of the subject matter of the contract, the important inquiry is, was the contract at the time so concluded as to change the right of property, and to vest it in the purchaser? One of the earliest cases on this subject is that of Wyvill v. Bishop of Exeter, 1 Price Exch. R. 294. McDonald, Ch. B., said a court of equity will enforce specific performance without regarding which party may be benefited or prejudiced by the accident of unforeseen events, where the purchaser has actually accepted a title after a contract of sale; but where the purchaser has not accepted the title, the court refuses to decree performance. In Paine v. Mellar, 6 Ves. R. 349, Lord Rosslyn did not consider such acceptance necessary, and he accordingly directed an inquiry ^whether a good title could be made. In that case objections were made to the freehold title ; the premises were also subject to a charge for certain annuities, but a trust stock had been declared for their payment. The purchaser, however, waived his objections to the title, and agreed that he would complete the purchase upon receiving an indemnity against the annuities. Before the indemnity was given the premises were destroyed by fire. Eord Eldon said,- it is clear the objection was given up as to the freehold title, and the only difference was as to the indemnity against the annuities affecting these with other premises. Notwithstanding, he refused to decree a specific performance unless it appeared the purchaser had actually accepted the title; and accordingly a special reference was directed as to the fact of the acceptance. He further said:

‘ ‘ As to the mere effect of the accident itself, no solid objection could be founded upon that simply, for if the party, by the contract, has become in equity the owner of the premises, they are his to all intents and purposes. It therefore becomes important, in cases of this sort, to ascertain the period at which the purchaser is to be regarded as the owner. He certainly must be so considered from the date of the bargain, where the vendor is in no default, and is prepared to convey a clear title. But if, according to the cases, a court of equity will not compel the purchaser to accept a title which the vendor cannot make out to be clearly good and free from incumbrance, how is the purchaser to be regarded as the owner till these objects are effected, and the vendor is prepared to make the title according to the contract. In Carrodus v. Sharp, 20 Beav. R. 56, a bill was filed for the specific execution of an agreement to purchase a mill, and a decree was made in September 1854, but a good title was not shown until the following December. A question arose as to who was to bear the expense and outgoings belonging to the mill, and to the repairs and sustenation of the premises and the machinery. *Sir John Romilly decided that these must be borne by the vendor up to the time at which a purchaser could prudently take possession, which is the time at which a good title is shown; and after that by the purchaser. It is perfectly clear that the same principle would have thrown upon the vendors a loss resulting from an entire destruction of the property. See also Monro v. Taylor, 3 McN. & Gor. 713; Fry on Specific Performance, § 895; Steut v. Bailis, 2 P. Wms. R. 220; 1 Sugd. Vend. 39, 389; Cass v. Rudele, 2 Vern. R. 280; Ex parte Minor, 11 Ves. R. 559.

I have had .occasion already to quote from the opinion of Chief Justice Marshall in Garnett v. Macon. It must be borne in mind, that the purchaser there resisted a specific execution of the contract, upon the ground of a charge "upon the property for the payment of debts created by a previous owner. In the progress of the suit, however, the encumbrance had been removed. Judge Marshall said: All the parties are now before the court, and if a specific performance should be decreed, the title which can be made to Macon will, undoubtedly, stand clear of Campbell’s lien. The question, therefore, is whether the contract ought now to be enforced. He then proceeds to consider how far time is the essence of a contract for the sale of real estate, declaring the rule to be, if a bill for a specific performance be brought by a party who is himself in fault, the court will consider all the circumstances of the case, and decree according to these circumstances. He then concludes by saying: “As I think Campbell’s claim was a cloud hovering over the title Garnett could convey to a purchaser with notice, which justified Macon in refusing to go on with the purchase, which cloud could not be dissipated but by the decree of a court of chancery; and as before such decree was attainable the value of the article has greatly changed, that circumstance creates a strong objection to specific performance. ’ ’

*It is obvious Judge Marshall was of opinion that any loss occurring to the property before the vendor was in a condition to convey a clear, unincumbered title, must fall on him, and not on the purchaser. And this is the result of all the cases. In the present case the incumbrances were subsisting at the hearing, nor does it appear | that they have yet been removed. Under the decree of 7th March, 1871, leave was given to the plaintiffs and appellees here to amend their petition, and make the association and the trustees under the deeds of trust executed by the Misses Gordon, parties defendant to the suit, in order to settle and adjust what balance may be due, if any, to said association. It is also stated, that because of the difficulties arising out of the perplexing condition of the association, a suit has been instituted to wind up its affairs. The purchaser must, therefore, await the settlement of the various questions arising in this suit, and the termination of a protracted controversy, before the character, nature, and extent of his liabilities can be ascertained.

It was argued that the purchaser cannot complain, because no day was fixed for the conve3rance of the title. The articles of agreement unmistakably show the understanding- of the parties, that the deed should be made so soon as the approval of the court could be obtained. And such clearly was the view of the parties making the sale. They did not ask for delay that the cloud upon the title might be removed. They tendered a deed with special warranty shortly after the decree as a literal performance of their covenants. Was this a compliance with the contract?—was the title offered the appellant the title he had agreed to accept? Unless it can be so held, the tender imposed no obligation upon him. He was bound to take a conveyance only when a good title was offered. Conceding that he could not object, if they asked for delay, still he had the right to insist they should perform all they had engaged to per-form, ^before he could be required to accept the title, or the ownership of the property. Not having done so, the loss must fall upon them and not on him. Foster v. Hoggart & als., 14 Jurist, Part 1, 757; Counter v. McPherson, 5 Moore, Privy Council Cases, 83. This is a hard case upon the appellees, and deeply to be lamented. It would be equally hard upon the appellant, who is in no default, to compel him to pay the consideration for property no longer in existence. With the greatest possible respect for the learning and the ability of the judge in the court below, I think the decree rendered by him must be reversed for the reasons stated.

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

Decree reversed.  