
    
      Wade’s Heirs v. Greenwood & Wife.
    November, 1843,
    Richmond.
    [40 Am. Dec. 759.]
    (Absent Cabell, jp.)
    Specific Performance* —Unrecorded Conveyance — Grantor’s Creditors — Lost Deed — Costs. — In 1814 land was sold, possession thereof delivered, part of the purchase money paid, and a contract made to pay a further part when a lawful right should be conveyed. In 1820 a bill was filed by the vendor and his wife (who claimed to have inherited the land from her father) against the vendees and their assignee, ashing specific execution of the contract. The bill also made defendant a nonresident, who, it was alleged, had formerly owned the land, and conveyed it to the father by a deed which was accidentally destroyed before it was placed on record. The assignee in his answer said, he had heard a report that the father mortgaged the land to secure a debt which was yet unpaid. He professed his readiness to pay the . balance due from him to the vendees, upon receiving a title to the land, and a release of the mortgage, if there was one. The nonresident defendant, though proceeded against by publication, put in no answer, rt was proved by a witness, that in 1794 the nonresident defendant conveyed the land to the father of the female complainant; that the deed was acknowledged before three witnesses, and delivered to one of them to have it recorded; and that it was accidentally burnt while in his possession. In 1830 a decree was made for specific execution. During all this time the vendees and their assignee, and the heirs of the latter, continued to hold possession of the land: none of them asked a rescission of the contract; and it did not appear that there was any such mortgage as was mentioned in the answer. Upon an appeal by the heirs of the assignee. Held, 1. That as the conveyance to the father, though never recorded, and afterwards destroyed, was effectual against the grantor to vest the legal title in the father, and the great lapse of time since that conveyance, in connexion with the uninterrupted possession of the father and those claiming- under him, furnished a sufficient presumption against any claim on the part of the grantor’s creditors, the decree for specific execution was, under the circumstances, proper. 2. That as there was no record of the said conveyance, a commissioner should he di- • rected to execute another deed from the grantor to the appellants. 3. That as the ancestor of the appellants was not hound to take the title until the existence and validity of the said con-475 veyance *had been judicially ascertained, and as the burthen of establishing these facts devolved on the vendors, they should be decreed to pay the costs.
    5ame — Personal Decree against Heirs of Vendee — Rule, —where a suit is brought against a vendee for specific execution, and pending the suit he dies, and the same is revived against his heirs, they are not liable to a personal decree: the decree should merely be, that unless they pay the purchase money and interest within a period to be pre- . scribed, the land shall be sold.
    Sale of Land — Enforcement of Vendor’s’ Lien — Time for Redemption. — In a suit by a vendor against the vendee’s heirs, to subject lands to sale by virtue of the vendor’s lien for his purchase money, it is, in general, an improper exercise of discretion to decree an immediate sale without allowing any time for redemption, or to decree the sale to be made for cash. If circumstances exist which render.it expedient to sell forthwith and for cash, such circumstances should be disclosed'by the record. If there be a decree to sell forthwith and for ready money, in a case in which nothing appears to call for or justify a departure from the general rule, the decree will for this cause be reversed.
    By deed dated the 18th of September 1777, James Dejarnett and wife conveyed to George Mitchell a tract of 400 acres of land in the counties of Halifax and Pittsylvania, being chiefly in the former. Dejarnett acknowledged the deed, and his. wife was privily examined, in the court of Halifax county on the day of its date, and the same was thereupon admitted to record.
    By a deed of the 19th of December 1786, in the names of Mitchell and his wife, the land was conveyed to John Welch. This deed was proved in the court of Halifax county, on the 21st of June 1787, by two witnesses as to Mitchell; but his wife did not appear to have been privily examined.
    By a deed of the 25th of April 1788, in the names of Welch and his wife, the land was conveyed to Daniel Roberts. This deed was also proved in the court of Halifax county by two witnesses; but the wife of Welch did not appear to have been privily examined.
    Daniel Roberts sold the land to Redmon Cody, who died leaving a daughter Nancy his only child and heir. She intermarried with Bartlett Greenwood.
    476 *On the 28th of May 1814, articles were executed between Hardwick Shearing and Moses Shearing of the one part, and Bartlett Greenwood of the other part, whereby the two former acknowledged that they had bought the land of Greenwood and received possession from him, and (in addition to what was stated in the articles to have been paid) were to pay Greenwood 100 dollars upon his making to them a lawful right to the land, and 300 dollars more the 25th of December 1816. Hardwick Shearing and Moses Shearing afterwards transferred their right to the land to Henry Wade.
    In 1820, Greenwood and wife filed their bill in the superior court of chancery at Lynchburg, against Roberts, the purchasers from Greenwood, and Wade their assignee, setting forth, that the father of the female complainant died during her minority, seized of the land, and the sale by the plaintiffs was made before they had knowledge of the facts in regard to the title; that Roberts received full payment for the land, and executed to Redmon Cody a deed for the same in due form of law; that Cody was put in possession of the premises pursuant to the deed, and he and those claiming under him have held the possession 33 years uninterruptedly; that the deed executed by .Roberts to Cody was delivered over by Cody to Haynes Morgan esquire, then a practising attorney in the county court of Pittsylvania, to offer to the said court for probat, and Morgan deposited the deed with his own papers in his office, which was consumed by fire in the year 1787, before the period for holding said court had arrived; that Roberts resides out of the commonwealth, and the Shearings have also gone out of the state, having previously sold their interest in the land to Wade, and put him in possession thereof. The bill prayed a conveyance of the title of Roberts, and that the land be decreed to be sold, and the complainants paid the 400 dollars remaining due, with interest thereupon.
    477 *Wade, in his answer, admitted that he contracted with the Shearings at the price of 800 dollars, of which he had paid at different times 400 dollars, leaving the residue unpaid. He said, he had heard a report that Cody in his lifetime mortgaged the land to secure a debt to John M’Rae of Petersburg, and that the debt was yet unpaid. He professed his readiness to pay the balance due from him to the Shearings, upon receiving a title to the land, and a release of the mortgage, if there was a mortgage; but entertaining strong doubts- as to the plaintiffs’ title, he was not willing, he said, to part with his money until those doubts were removed.
    Moses Shearing also answered, stating, that by an arrangement made by him with Hardwick Shearing, the latter had taken the benefit and burthen of the contract.
    The cause was proceeded in by publication against Roberts and Hardwick Shearing, and the bill as to them was taken for confessed.
    Chancellor Taylor referred the title of the plaintiffs to a commissioner, to be by him regularly deduced for 50 years. The corn-missioner reported the evidence of James Dejarnett, that he was in possession of the land by purchase as early as 1770, and then held the original patent for the same; and the evidence of James Montgomery, that after Dejarnett sold the land, he (Montgomery) saw the original patent in the hands of Welch, who then owned the land. The deposition of Thomas Self was also taken the 15th of May 1822. He deposed, that about 28 years before, he rented the land from Redmori Cody, and he then understood from Daniel Roberts and said Cody, that he (Roberts) had sold the land to Cody; that at the time of the conversation of Roberts and Cody, or some short time before, the last payment was made by Cody to Roberts; that the deponent was called on by the parties to witness a deed from Roberts to Cody; that the deed was acknowledged in the presence of deponent and of Haynes Morgan and Reuben Comp-478 ton, and *all three witnessed the same; that Morgan undertook to have it recorded, and took it in possession for that purpose; that Morgan’s house was burnt some time afterwards; and that the deponent had never been called on to prove the deed for the purpose of having it recorded.
    The defendant Wade died pending the suit, and the same was revived against his heirs.
    On the 19th of May 1830, the chancellor decreed, that upon mrs. Greenwood’s uniting with her husband in the relinquishment of her right to the land by such good and sufficient deed to the heirs of Wade as counsel learned in the law should advise, and delivering the same to the said heirs or some one of them, if he or they would receive it, but if not, depositing it with the clerk of the court for their use, the heirs of Wade should pay unto the plaintiffs the sum of 400 dollars with interest thereon from the 25th of December 1814, and their costs by them about their suit expended. And the court further decreed, that in case default should be made in such payment upon the execution and delivery of the said deed as aforesaid, the defendants, or such of them as might have the possession of the land, should deliver the possession thereof to the marshal of the court, and that the marshal, after having advertised the time and place of sale for four weeks in some newspaper printed in the town of Lynchburg, at the front door of the courthouses of Halifax and Pittsylvania counties on some court day, and at some public place near the premises at least ten days before the sale, should proceed upon the premises to sell by way of public auction, to the highest bidder for ready money, the land aforesaid, or so much thereof as should be sufficient to pay off and discharge the said principal money, interest and costs, and the expenses attending the said sale, and should pay the proceeds thereof, after defraying the expenses attending the 479 same, into one of the banks *at Lynchburg to the credit of the suit, subject to the future order of the court, and report his proceedings to the court. And liberty was reserved to the defendants Daniel Roberts and Hardwick Shearing, respectively, to shew cause against the decree at any time within seven years, upon their appearing and answering the bill.
    A deed from Greenwood and wife was executed to the heirs of Wade, and the wife’s privy examination and acknowledgment, as well as the husband’s acknowledgment, duly certified by two justices of the peace, and the deed tendered to one of the Heirs, and deposited with the clerk of the court, as directed by the decree.
    An appeal was allowed from the decree, on the petition of Wade’s heirs, who insisted that the plaintiffs had not made a lawful title agreeably to the contract, and under the circumstances ought not to have been permitted to sell the land, at the sacrifice which a doubtful title must occasion, for the balance of the purchase money, which, by the terms of the agreement, was not to be paid until after a good title was made: that at all events no sale should have been decreed, but upon terms of repaying to the heirs of Wade the amount paid by them to Shearing, and by Shearing to the plaintiffs, and rescinding the agreement, which could not be performed on the part of the plaintiffs: and that, before any sale could justly be asked, an enquiry should have been directed to ascertain whether the mortgage mentioned in the answer of Wade ever existed, or still remained.
    Garland for
    This being a bill for specific execution, the court decree such execution if it would be inequitable to do so. Cabell, P., delivering opinion of court in Bryan v. LofCtus’s adm’rs, 1 Rob. 16. Here there is reason to apprehend disturbance by Roberts or his heirs. Self has not proved any delivery of the deed by Roberts, or by his author-480 ity; and if he had, *it is at least questionable whether a single witness would be sufficient to establish the fact, seeing that the deed could only be admitted to record upon proof by three witnesses. It must be considered a case of a clouded title, under which, if a sale be made, the land will be sacrificed; which a court of equity does not permit. Gay v. Hancock & others, 1 Rand. 72. Mere possibilities, it is true, constitute no objection to a specific execution ; as where, from the length of time, it is impossible to discover in whom the legal title is. But when a considerable, a rational doubt exists, notwithstanding the court inclines to the opinion that a good title can be made, specific execution will not be decreed. Stapylton v. Scott, 16 Ves. 272. The court never decrees such execution where the title is involved in difficulties. 1 Fonbl. Eq. 190; Marlow v. Smith, 2 P. Wms. 198; White v. Foljambe, 11 Ves. 337. A purchaser will not be compelled to take a doubtful title. Roake v. Kidd, 5 Ves. 647; Lowes v. Lush, 14 Ves. 547; Franklin v. Lord Brownlow, 14 Ves. 550; Sloper v. Fish, 2 Ves. & Beames 145. Although the court thinks the title good, yet if it be doubtful, specific execution will be denied. Cooper v. Denne, 1 Ves. jr. 56S; Jervoise v. Duke of Northumberland, 1 Jac. & Walk. 549.
    A party seeking specific performance should shew that he is not himself in default, and that he has taken all proper steps towards performance on his part. 2 Story’s Equity, p. 81, l 771; 1 Eonbl. Eq. book 1, ch. 6, $ 2; Milward v. Earl Thanet, 5 Ves. 720, note; Moore v. Blake, 1 Ball & Beatty 68, 9; Pratt and others v. Carroll, 8 Cranch 471; Colson v. Thompson, 2 Wheat. 336, 341; Brashier v. Gratz and others, 6 Wheat. 528. Here a conveyance should have been directed of the title of Roberts, or at least the plaintiffs should have been required to execute an indemnifying bond against any title outstanding in him or derived through him, and against the other defects alleged by the vendee.
    481 *The decree is also erroneous in allowing interest on the purchase money from a date anterior to the execution of the conveyance by Greenwood and wife, and in allowing them their costs. It is moreover harsh in directing the land to be sold for ready money, upon four weeks notice. A reasonable time should have been allowed for paying the money, and the sale should have been upon a reasonable credit.
    Patton and C. Johnson for the appellees.
    No objection is made in the pleadings to going on and completing the contract, if a good title can be made. Now Roberts had a title which would have enabled him to sustain his right to this land against all the world, before his conveyance to Cody. And after that conveyance, the execution of which is clearly proved, the title of Roberts was fully vested in Cody. Had Cody brought a writ of right to recover the land against Roberts, and adduced in that case the same evidence that is exhibited here, it would have been abundantly sufficient to entitle him to recover. After such a lapse of time without any creditor of Roberts or subsequent purchaser from him being heard of, it must be presumed that the title is unexceptionable. This principle of presumption equally applies to the objection that the wives of two of the parties who successively conveyed the land did not join in the conveyances. The sufficiency of the title is to be ascertained at the time of the decree, not at the time of suit brought. Hepburn v. Auld, 5 Cranch 262. The cases of Eyddal v. Weston, 2 Atk. 19, Sperling v. Trevor, 7 Ves. 497, Hillary v. Waller, 12 Ves. 251, Halsey v. Grant, 13 Ves. 73, and Horniblow v. Shirley, Id. 81, shew the kind and degree of doubt or defect which will prevent specific execution, and what will be considered as sufficiently guarded against by the vendor’s warranty. The cases 482 *of Eleetwood v. Green, 15 Ves. 594, Margravine of Anspach v. Noel, 1 Madd. C. R. 310, american edi. 172, Bradshaw v. Bradshaw and others, 2 Meriv. 492, and Burnell v. Brown, 1 Jac. & Walk. 173, shew that where the party resisting specific execution is in possession of the land, there will be a stronger disposition on the part of the court to compel specific execution (notwithstanding small objections to the title), and to leave the party to his remedy on the general warranty in his deed. Buckle v. Mitchell, 18 Ves. Ill, shews that remote and merely contingent objections to the title will not avail. Here the husband and wife have executed and tendered a deed conveying the land. And therefore the question suggested in Howel v. George, 1 Madd. C. R. 1, whether specific performance of the husband’s contract for the sale of the wife’s land can be decreed, so as to require him to procure her to join in the conveyance, need not be considered.
    As the vendee was in possession of the land, he was properly required to pay interest on the purchase money. The contract expressly provided a particular day for the last payment; and where that is the nature of the contract, and the party has also had possession of the land, interest will go upon the purchase money from that day.
    There is nothing in the record from which it can be inferred that the discretion of the chancery court was improperly exercised in decreeing a sale for cash upon four weeks notice. Under the circumstances of this case, and after the delay of payment which had already occurred through the vendee’s default, it would have been improper to allow further delay, especially when the sum to, be raised was so inconsiderable. Moreover the case of Manns v. Elinn’s adm’r, 10 Eeigh 93, shews that this is no ground for reversing the decree.
    
      
      Specific Performance. — See monographic note on “Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.
    
    
      
      Eniorcement of Judgment Liens — Time For Redemption.— The principal case is cited in foot-note to Crawford v. Weller, 23 Gratt. 835.
    
   *AELEN, J.,

delivered the following as the opinion of the court:

The court is of opinion, that it appears from the evidence that Daniel Roberts did convey the land in the bill and proceedings mentioned to Redmon Codj’-, the ancestor of the female appellee: that such conveyance, though never recorded, and afterwards lost or destroyed, was effectual as against the grantor to vest the legal title in said Cody: and that the great lapse of time since said conveyance, in connexion with the continued and uninterrupted possession of the land by Cody and those claiming under him, furnishes a sufficient presumption against any claim on the part of the creditors of said Daniel Roberts. The court is therefore of opinion, that as the appellants have continued to hold possession of the property, and have not asked for a rescission of the contract, it was proper, under the circumstances of the case, to decree a specific performance of the contract; and that in this there was no error in the decree. But the court is further of opinion, that the ancestor of the appellants was not bound to take the title of the appellees until the existence and validity of the said conveyance from Daniel Roberts had been judicially ascertained; that the burthen of establishing those facts devolved upon the appellees; and therefore that they should have been decreed to pay the costs. The court is further of opinion, that as there is no record of the conveyance from Daniel Roberts, a commissioner should have been directed to execute a deed from him to the appellants. The court is further of opinion, that under the authority of Tibbs &c. v. Matthews &c. decided in this court on the sixth day of May 1829, *it was wrong to decree personally ^against the appellants, who, as heirs of the vendee, were not liable to a personal decree. The decree should have been, that unless they paid the said debt and interest within a period to be prescribed, the land should be sold. And the court is further of opinion, that in a suit to subject lands in the hands of heirs to sale, for the equitable lien of the vendor for unpaid purchase money due from their ancestor, or for the debt of the ancestor, it is, in general, an improper exercise of discretion to decree an immediate sale without allowing any time for redemption, and to decree a sale for cash : and that if circumstances exist which render it expedient to sell forthwith and for cash, such circumstances should be disclosed by the record. In the case under consideration, nothing appears to call for or justify a departure from the general rule ; and the court is therefore of opinion, that there was error in directing the marshal to take possession of the land, and to sell forthwith and for ready money. It is therefore decreed, that so much of the said decree as conflicts with this opinion be reversed, and that the appellants recover against the appellees their costs here expended; that the said decree be affirmed for the residue; and that the cause be remanded, with instructions to be finally proceeded in according to the principles above declared.  