
    Brindle and another against M‘Ilvaine.
    ■In Error.
    
      Monday, October 15.
    A. conveyed to B., 25 ‘ acres of land, part of a large tract3 in consideration of auhe*’ sa™eedl™bB.. for the’pay-^ext'day'and aisopermitthe’ss áorese¡f resfdiie -'a agreeing to advance’of16 °? tlie which he Pos" afterwards entered into articles of agreement with C. to sell the whole, in consideration of money and land, and eventually gave C. a deed for the whole. B.’s deed was not recorded till after the, agreement, but C. then had notice of it. Held, that’B. had no right to sell on the terms that part of the consideration money should be paid in land: but that B. could not recover the 25 aci;es from p., until B. tendered all the purchase money due on the bond.
    ERROR to the Court of Common Pleas of- Franklin . COUnty* . . ,
    . . Phis was an ejectment for 25 acres of land' in Franklin county, brought against George Brindle and John Brother - ton by. Elizabeth M’-Ilvaine, the plaintiff below, who having died after the commencement of the action, her- heir and devisee, .Alexander M’-Ilvaine, was substituted in her place, according to the Act of Assembly in'such case provided, Both plaintiff and defendants claimed under Robert Haslet, who was seised in fee of a large tract of land of which the 25 acres in dispute were part. On the 24th March, 1808, Robert Haslet, who ' married the . daughter' of Elizabeth M'-Ilvaine, executed a deed by which he conveyed to said Elizabeth, the 25 acres in question’ in-fee, in consideration of 325/. to be paid by herand on the Sam,e day she gave him her bond in the penalty of 2,000 dollars, with following conditions, viz. that the said Elizabeth should pay to the said Haslet the sum of 3251. pn.the'dáy next following the date .of the said bond, and alsoj “ that she should well and. truly allow and permit the said Robert Haslet to sell andcqnvey a certain piece of land, containing 25 acres, which is this day conveyed to her by the said •Robert, for which the said above sum is the coñsidératipn, provided the said Robert shall think proper .to sell the résidue of the said tract of land, and he the-said Robert agreeing to allow the said Elizabeth the advance ofprice on the said piece of land, for which he may sell the land.’’ The deed to E. M'-Ilvaine, was not recorded ■ until the 1st October, 1810. The possession was not delivered to her, but retained by Haslet, who on the.21st Octo- ' her, 1808, entered into articles'of-agreement with JohnBrOr therton, one .of the defendants, for the sale of the whole tract, containing about 178 acres, and including the 25 acres, for the sum of .4,800 dollars, in money, and 100 acres of other land, to be conveyed to Haslet'by Brotherton. . At the time when this agreement was made, Brotherton - -was put in,possession of the.bond from E. M'-Ilvaine to Haslet. On the 31st March, 1817, Haslet executed a'deed of conveyance . to Brotherton, in pursuance' of the articles of' agreement. This deed was in Haslet’s own name, without taking any notice of the power derived from -E. Mi'-Ilvaine. George Brindle, the other defendant, claimed under Brotherton. Whether Mrs. M'-Ilvaine had paid any part of her bond or how mluch, were facts on which some .evidence was given, but the parties'differed with , respect to them, arid they were submitted to ,-the jury. 'But there were two points of law on which the Court below'delivered an opinion, to which the counsel for the defendants excepted. •
    The first point was, on the validity of the deed .from Has-let to Brotherton.-- The Court were of opinion^ that being mad.e in Haslet’s own name it had no effe'ct as to the 25 acres, the legal estate in which was in Elizabeth M'-Ilvaine.
    
    And in the seéond. place,'it was. given in charge to the jury, that the plaintiff was entitled to recover in this ejectment, .without tender or payment of- the balancé of the purchase ■ money'due from Mrs. M‘Ilvaine on her' bont.I, supposing any part to remain unpaid. .
    
      .S'. Riddle and Brown, for the plaintiffs in error.
    1. The Court charged the jury erroneously in stating that the power to sell,was not properly executed. We contend that'it was even good at law; Parker y'. Kett, 1 Ld. Ray. 659. Sir Edward Clere’s Case, 6 Co. 17- 1 Bac. Ab.-'Authority C. .But granting that the power was not legally executed, yet cháncery will in such case compel the principal to convey.
    • 2. The bond bearing the same date as the deed, is in the nature of a defeasance of the deed. Neither E, M'-Ilvaine, nor her devisee, can recover without paying the purchase ino'hey. due by her. Brotherton had paid for the whole tract, and was entitled to all money due from E. M'-Ilvaine, and the Court ought to; have directed the jury that it should have been tendered or paid before she or her devisee could recover. She was a vendee, and the',vendor had a lien for the purchase money. Irvine v. Campbell,6 Binn. 118. 1 Fern. 267. 2 P. Wnis. 294.
    
      A. Chambers and G. Chambers, contra. .
    1. There was' no power, but only an agreement to give a power. If this agreement which wás contained in the condition of the bond were, broken, Haslet had- his remedy on the penalty. Mrs. M‘Ilvaine did not mean to give Haslet power to receive the purchase money. ; But if there was a-power, it was coupled with an interest, and the legal estate remained in Mrs. M’-Ilvaine. Such power should have been set forth.and strictly pursued. Co. Lit. 236. «... 5 Johns. Rep. 58. The conveyance by an attorney must be in the name of the principal. Comb’s Case, 9 Co. 76. • Franklin v. Small, St Ld, Ray. 1418. 1 Bac. Ab. (Wilson’s Ed.) tit. Authority. 7 Mass. Rep. l4. 2 Caine’s Rep. 66,. Peters v. Condron, 2 Serg. £s? Rawle, 80. The deed, of Haslet to Brotherton was simply in'his own name,1 and moreover, it was in part a sale for land, the consequence of which’was,.that it could not be known whether he sold for an advanced price or what the advance was.
    2. E- M'-Ilvaine■ had a right to enter immediately on receiving the deed: consequently she was entitled to possession without paying the purchase money. On this point they cited Sugden on Vendors, 371. 374. 384. Galbraith v. Fenton, 3 Serg Rawle, 359.
   The opinion of the. Court was delivered by

Tilghman, C. J.

As the defendants stand on an équitable, defence, it is not very material whether the deed from Haslet, conveyed the estate of Elizabeth MiIlvaine or not. if there'were no other objection than the form of conveyanee, neither. Mrs. M'Ilvaine, nor, the defendant who claims as,her devisee, would be permitted to take advantage of that’ defect. But there is a more substantial objection^ which, will appear by considering the nature of the contract between Haslet and his-.mother-in-law,: Mrs. M'Ilvaine. Haslet’s deed to her, and her bond to Haslet, bear the same date, and must b'e considered as one transaction. Although Haslet conveyed 25 acres, part oif his larger tract, yet it was understood, that-he was to have power to sell the whole tract, including the 25 acres, provided that Mrs. Myllvaine was to have the "benefit of the advance "in price, if any there should bé. This power Mrs. MiIlvaine could not revoké, because it'was in part the consideration of Haslet’s conveyance to her, and the reason of his reserving the power is plain. It might have prejudiced the sale of the whole tract, if these 25 acres were cut out of it.' On the other hand the interest of Mrs MiJlvaine, was attended to. For while care was taken that the whole tract should be sold to the best advantage, she was to be the gainer by any advance of price which Has-let might obtain. Haslet therefore had np right to sell .in such a" mariner as would make it impossible to know what the advance of price was, which he has done, by taking part of the price in land. And although'Mrs.- M'Ilvaine’s deed jvas not on record j when Brolherton made his agreement, yet it appears that he was fully acquainted with it, because he. wás put in possession of her bond which recites it. But if Mrs, MHlvaine’s devisee insists on vacating the. sale of these 25 acres, he ought hot to be-permitted to take the possession from Brolherton, • till he'pa^s the purchase money. Considering all the circumstances of the contract, and the retaining of the possession by Haslet, it seems to have been the intent of the "parties that 'Haslet should keep the security for payment in his own hands. If he sold at an advanced price, all that he had to do"’, was to pay the- advance to Mrs. 'M’llvaine,- and- keep the residue for himself..' If he sold at exactly the same rate that she paid, he might keep the whole, and in that case she would have nothing to. pay¿ But the power in' Haslet to sell, though irrevocable, by Mrs. Mo livable, was not to be abused by protracting the' sale for an unreasonable length of time. In such case, on tender of the purchase money and interest, she should have been entitled to recover the possession. This construction of the contract^ gives-perfect equity .to both parties, and seems-really to be what both- intended. I am therefore of opinion,-that there, was error in that part, of the charge of thé President of the C.ourt of Common Pleas, in which it was said, that the plaintiff was entitled to recover without payment or tender of the purchase money. It follows, that the judgment is to be reversedj and a venire facias de novo awarded.

Judgment reversed, and a venire facias . : de novo awarded.  