
    *Henderson v. Lightfoot.
    [October, 1804.]
    Sale of Land — Payment in Land — Failure to Make Title. —A. sold a tract of land to B. for £600, and 4600 acres of land in Kentucky, estimated in tbe contract at £400. B. at tbe time of tbe decree, could not make a legal title to tbe 4600 acres of land; and therefore was decreed to pay tbe £400 with interest.
    John Lightfoot filed his bill in the high court of chancery stating, That in the year 1785, he sold a tract of land in Culpeper to Callender and Henderson for £1050, and took their bond with security for payment of £600 thereof in the following manner, to wit: £400 in bonds, goods, &c. and the other £200 in about two years. The balance of the purchase money was to be paid in about 4500 acres of Kentucky lands, stated to be located for captain Reid. That the plaintiff has received the £400, and authorized Slaughter to receive the .£200. That the plaintiff went to Kentucky to get the lands there conveyed to him. That the Slaughters assigned the bond aforesaid to Gray in order to enable him to receive the £200. That Gray is dead, and the bond lost. That Callender and Henderson have neglected to clear out the said 4500 acres of land. That Callender is dead without heirs in Virginia, and Henderson hath taken administration on his estate. Therefore the bill prays that Henderson may be decreed to pay the said £450 with interest, instead of the Kentucky lands.
    The answer admits the purchase of the Culpeper lands, upon the terms in the bill mentioned, except that they were to give their right to the Kentucky lands. That Callender and Henderson having warrants for a large quantity of lands in the hands of-Perkins of Kentucky, the same were, after the death of Perkins, delivered by Innes, his administrator, to Reid to be located. That Reid, who was present at the contract between the plaintiff and defendant, did locate the warrants; and the defendant, not valuing Kentucky lands much, but willing to get clear of them on any terms, referred the plaintiff to Reid for information. *That, after the plaintiff had had some conversation with Reid, the bargain between the plaintiff and Callender and Henderson was concluded, but upon the express condition that Callender and Henderson were not to warrant them against prior claims, unless made to appear, within one year, as appears by the said bond. That no prior claims have been made. That Callender and Henderson gave the plaintiff an order on Reid for the lands as bj his receipt will appear. That the defendant has paid £600. That the Kentucky lands were scarcely worth the expense of surveying and obtaining titles; and therefore the sum, claimed for them by the plaintiff, is extravagant; especially as an exorbitant price was given for the Cul-peper lands for the sake of getting clear of those in Kentucky. That Reid has been paid his fees for locating, as appears by his receipt and bond, stating that the locations have been made: Which bond the defendant directed to be delivered to the plaintiff. That it was agreed between the plaintiff and Callender and Henderson that the plaintiff should pay any other charges for clearing out the said lands, and that Callender and Henderson should repay them. That the defendant is neither the executor or administrator of Callender.
    The amended answer, states that the plaintiff before he sold the Culpeper lands to Callender and Henderson, offered them at £500, but could not sell them at that price; and that the only addition to the value was 100 acres at the price of .¿I00. That the defendant, several years after-wards and after the rise of lands, sold them for £950 upon credit: About ^300 of which he cannot recover, because the title is disputed, and an injunction has been granted by the county court. It denies any notice that the land could not be obtained, until the suit was brought; which put it out of the defendant’s power to obtain redress.
    The exhibits are, 1. The receipt of Reid for his fees for surveying the land; which is written at the foot of an account stating the surveys. 2. A land warrant for 12,892% acres of land, with Perkins’s receipt to Callender and Henderson *for the same, expressing that it was to be located. 3. The entries of the lands by Thomas Perkins as assignee of Callender and Henderson ; and a survey thereof for the heirs of Thomas Perkins, assignee of Callender and Henderson. 4. The bond of Callender and Henderson to Bightfoot, with the payments endorsed; among which is a receipt by the plaintiff for an order on Reid for 6000 acres of land. 5. The obligation of Reid and Strother acknowledging receipt of fees for locating the lands, and containing an express declaration that they have been located and surveyed. 6. A letter from Perkins to the defendant enclosing a copy of the entries he had made for them, dated September 25th, 1785. 7. Three letters from Innes, the administrator of Perkins: The first dated March 23d, 1787, informs him of Perkins’s death, and speaks of lands in which the defendant may be interested. The second, of lands located, by Perkins, for the defendant, himself and others : The third, of the defendant’s lands, and wishes him to pay the surveyor’s fees; after which he (Innes) will pass the plats through the ofSce. 8. A letter from Cal-lender and Henderson to Reid, desiring him to deliver the land papers to the plaintiff, who would pay the office fees: this letter appears to have been sent by the plaintiff.
    The deposition of Waddle, states that, on the 14th of May, 1789, he, on behalf of Cal-lender and Henderson, paid Reid his fees for surveying the lands.
    The deposition of another witness, states that he was present when Waddle paid Reid for the surveys.
    The defendant’s counsel moved for a continuance of the cause in order that the defendant might take the depositions of Innes and Reid; but the motion was over-
    ruled by the court: which decreed payment of the money, without any condition.
    Call, for the appellants.
    The title was unquestionable. 1. Because the receipt of Perkins, for the land warrant, created a clear trust for Callender and Iiender-son ; and therefore *the land belonged to them in whose name soever the warrant was located. 2. Because Perkins’s letter says they were located for the benefit of Callender and Henderson; that he had got Reid to do the business, and that the two entries were enclosed; which is corroborated by Reid’s calling on Callender and Henderson for his fees, stating, in his receipt, that they had been located on their account.
    The appellant has not broken the contract. For the plaintiff knew the situation of Cal-lender and Henderson’s title to the lands at the time he purchased ; because it is impossible that he should have bought without enquiring into the local situation, and rights; and the enquiry would naturally have led to a sight of the papers, and a full explanation of the title.
    The plaintiff took upon himself the trouble of ' obtaining the patents. For his knowledge of the situation of the title shews it; especially as he was to go to Kentucky in pursuit of the lands: and he took the order on Reid in full satisfaction of the bond; which necessarily shews that he was to get the grant himself, or else the purchase would have been of no use to him. Besides, the amended answer (which not being replied to is evidence) states that he was to pay the fees for clearing out the lands and obtaining the patents. Which, ex vi termini, supposes, that he was to be at the trouble of carrying the rights into grant. For whoever buys an equitable title of this- kind, agrees to encounter all the delays and difficulties incident to the procurement of the legal estate; because he knows it cannot be conveyed, until it is procured, and therefore he virtually stipulates to wait for it.
    Consequently, the sole question is, Whether the defendant had an equitable title at the time of the purchase? For if he had, the court of chancery ought to have compelled the plaintiff to assert it, or given the defendant .time to do it. 2 Wms. 630; 1 Atk. 12; 3 Wms. 190; Syme v. Johnston, 3 Call, 559; Pollard v. Rogers, in this court, 4 Call, 239. The principle of all which cases applies to this. For, *in that, in 2 Wms., time was given, when the cause was ready for hearing, until the act of parliament could be procured to enable the party to convey, although it was, necessarily, uncertain, whether such an act would ever pass. In that in 3 Wms. the heir at law was as necessary a character to be brought into the cause, as the heir of Perkins here: And those in 1 Atkyns, and this court, are liable to similar remarks; for, in every instance of that kind, the person, having the legal estate, is a formal party only, without a scintilla of right. Besides, the practice is to send it to a master to enquire into the title; and if he reports, that a good one can be made, if such a person will join, time is afforded to get him to join. Which is exactly similar to the present case: and the argument is the stronger on this occasion, because the plaintiff might have made the heir of Perkins, defendants to this suit, and obtained a decree for a complete title. Therefore, as the plaintiff might, by additional parties, have enforced a conveyance of the legal estate, the court of chancery ought to have compelled him to make the parties, or given the defendant time to file a cross bill for that purpose.
    It makes no difference that, although the location was in the name of Perkins, that circumstance is not mentioned in the written contract; because the bond does not say, that the lands were located in the name of Callender and Henderson; but is silent as to names; and therefore is not inconsistent with the truth of the case, which appeared in the entry and other papers.
    The plaintiff ought to have pursued the claim; and, if disappointed in obtaining it, he should have given notice to the defendant. 1. Because he had undertaken to pursue it. 2. Because, by the contract, prior claims were to be made known, within a year; which supposes diligence of enquiry into the title; for otherwise, the information could not have been had, within the limited time.
    The court of chancery ought to have granted the continuance. For the papers shewed, that the witnesses were ^important; and commissions to take their depositions could not have been obtained without leave of the court.
    Williams, contra.
    The contract was to convey the lands surveyed by. Reid, and to warrant the title: which must have been understood as of lands surveyed in the names of Callender and Henderson: the answer so explains it, and the order upon Reid was accordingly. The appellants have not transferred the lands: and it is not sufficient for the seller to saj’ he has not broken the contract, but he must prove that he has performed it. That Rightfoot bought the equitable title only, makes no difference, because he considered it as a transaction with the vendors only. The answer proves that the appellant did not disclose the papers and situation of the title to Rightfoot at the time of the contract: which ought to have been done, that the latter might have bargained with a full knowledge of the circumstances. The allegation of the answer that Reid was present at the contract, is disproved by the facts in the case; because it appears that the contract was on the 13th of August, and the survey was made on the 3d of the same month. The appellee did not undertake to clear out lands in the name of the heirs of Perkins, but those in the name of Callender and Henderson. The authorities cited on the other side, prove nothing for them; because those cases shew that there will be no specific performance unless compensation can be made. But here was greater delay, than was ever allowed. There was no obligation upon Rightfoot to make the heirs of Perkins parties; because it does not appear that he had any. The bill states a conveyance of the Culpeper lands, which was sufficient. It was not necessary to reply to the amended answer; because it was to be tried upon the evidence; and such a practice would produce the delay of a new commission, or drive the plaintiff to admit the new allegations. The survey is in the name of the heirs of Perkins, and therefore a patent could not be obtained. The sum decreed by the court of chancery was right: and the Continuance moved for ought not to have
    been granted, after so much delay.
    Wickham, on the same side.
    The lands never have been conveyed, and Callender and Henderson have not got them. Although it be true that a mere legal title will not prevent a decree, yet that is not this case; for Perkins’s heirs have not the legal title, but it is in the state of Kentucky. A patent cannot issue in the name of “the heirs of Perkins:’’ for the act of assembly requires the grantee to be named: and we know not who the heirs are. There may be other titles, in all this time, to these lands: And that is a danger which Right-foot is not bound to encounter. If a suit is brought, it must be brought against the register of the land office in Kentucky; and could not have been brought here. Had all the circumstances been disclosed, Rightfoot would have made a difference in his contract. The defendant contracted to transfer; and therefore he must shew that he has done so.
   CARRINGTON, Judge,

delivered the unanimous opinion of the whole court* that the decree of the high court of chancery should be affirmed.

Decree affirmed.  