
    *Stimson v. Thorn.
    June Term, 1874,
    Wytheville.
    I. Upon a hill filed by T against H, to rescind a contract for the exchange of lands, it appears that H hadheenin possession ofhisland for twelve years, and had paid all the purchase money; hut D, from whom he purchased, had died, and he had brought a suit against D’s widow and heirs to have the title made to T — Held:
    1. Exchange of Land — Defect in Title — Rescission.— Under the circumstances of this case H should he allowed a further reasonable time to get in the title; and it was error to decree a rescission of the contract.
    2. Same — Same—Same—Parties.—It was error to rescind the contract without having the widow and heirs of D before the court.
    3. Same — Same—Dower—Exoneration.—If D died seized of other real estate on which he in his life time and his widow since his death lived, her dower should be assigned her out of that land in exoneration of the land sold by D to II.
    4. Same — Specific Performance — Compensation.—If the land contracted to be exchanged by H with T be in fact encumbered by the right, title or estate of dower of the widow of D, and that be the only defect in the title of H. to said land, such defect is not sufficient to prevent the specific execution of said contract; but the same may be executed, with an allowance of compensation for such defect. on the terms prescribed in the Code, ch. 106, § IS, p. 865.
    This was a suit in equity commenced in the Circuit court of Bland county, and afterwards removed to the Circuit court of Wythe county, brought in April 1869 by Gordon C. Thorn against Robert W. Har-man and N. B. Stimson, to rescind a contract for the sale and exchange of lan d made in March 1858, between said *Thorn and Harman. The bill stated that, on the 26th of March 1858, he entered into a contract with Harman for the sale or exchange of a tract of land which he owned lying in Bland county, for one which Harman owned also lying in said county. Each executed to the other a title bond containing the terms, and each gave possession of his tract to the other. That by the bond of Harman, which he filed with his bill, Harman sold to the plaintiff the tract of land on which he lived, and which he had bought of D. D. Dunbar, at the price of $12 per acre, and covenanted to have the land surveyed and make to the plaintiff a good title to the same with general warranty. That the plaintiff also covenanted in the title bond he executed to Harman to have his tract surveyed; and supposing Harman’s tract was larger than his, and that there would be a deficiency of $2,000 due from him, estimating his land at the same price per acre, being the price fixed, upon which the estimate was to be calculated, he had paid the $2,000 to Harman. That shortly after said payment the parties had their land surveyed according to the agreement, each being present when said surveys were made, and it was then ascertained that Harman’s tract only measured four hundred and sixty-six and a half acres, and plaintiff’s measured three hundred and forty-five acres, leaving a deficiency in the number of acres between said two tracts in favor of said Har-man of one hundred and twenty-one and a half acres, which, at $12 per acre, left due from plaintiff to Harman $1,458, instead of $2,000, as they had supposed; and Harman had thus received from the plaintiff $542 in excess of the amount to be paid by the plaintiff in the exchange of lands. That he had frequently attempted to have with said Harman a final settlement of this sale and exchange *of their lands, and had on more than one oc-
    casion tendered him a deed in compliance with his title bond; but said Harman had refused, and delayed, on various pretexts, the execution of said contract, and is now unwilling to execute the same. Said Har-man has no deed from Dunbar for the tract of land sold by him; that Dunbar is dead, leaving a widow and infant children; and plaintiff is informed that a large portion of the purchase money for said tract of land is yet due from Harman to Dunbar. That since the death of Dunbar his widow has had dower assigned her in the tract of land sold by Harman to the plaintiff, and is in the possession and enjoyment of the same; and that Harman has sold the la nd obtained from plaintiff to a certain N. B. Stimson, who is in possession of it. And making Harman and Stimson defendants, he prays that the said contract may be rescinded; that Harman may be required to deliver up plaintiff’s title bond, and to repay to the plaintiff the $2,000 received from him; and upon his failure to pay, that so much of the land sold by him to the plaintiff may be sold to satisfy the same with interest; and for general relief.
    Stimson demurred to the bill, and both he and Harman answered; Harman, after stating the contract between himself and Thorn, says that Thorn assured him that his land did not run more than a quarter of a mile along Clear Dork creek, and three quarters of a mile back; and that upon this statement a calculation was made of the amount that Thorn would have to pay him, which exceeded $2,000. That when they came to survey the land, Thorn changed the course to be run, so as to widen the tract, and extended the line up on the mountain to more than a mile, so as to include a much larger quantity than was anticipated, and land that was not worth twenty-five cents per acre. *That he objected to this at the time, and for this reason refused to accept the deed that Thorn tendered to him. That before the survey was made possession was delivered by each to the other; that he had possession of the land in the valley; that on the mountain being- entirely in woods and not susceptible of cultivation.
    He further says that the plaintiff knew what was the title respondent had to his land at the time of the contract. Respondent had purchased it of U- D. Dunbar, and had been in possession for over twelve years, undisturbed, and had paid all the purchase money. He has sold the land he bought from the plaintiff to N. B. Stimson, and put him in possession of it, and he had paid the purchase money.
    As to the dower of the widow of Dunbar, respondent believes it was done by collusion with the plaintiff, who was still in possession of the land; and he might have prevented it, as he knew or might have known, that as against one claiming under an alienation from the husband, the widow could only claim interest on one-third of the value. As to the title, he can and will procure it, and there is sufficient balance in complainant’s hand to indemnify him for any amount arising from the question of dower.
    Stimson, in his answer, says that he lived at a distance from Bland county,' and knew nothing of the terms of the contract between Thorn and Harman. He purchased the land with the knowledge of Thorn, and he had paid the whole purchase money, amounting to $3,134.59; and took an assignment to Thorn’s title bond. He did not know until the 8th of December 1866, the date of the assignment of the title bond, that there was any question or difficulty between Harman and Thorn in regard to the quantity of land, *and supposed then that the difference could be amicably and easily adjusted, as Thorn did not oppose a sale to the respondent; and he was put in possession of the land by Harman and had been continually in possession of it ever since.
    The respondent further says that before his purchase Harman had executed a deed of trust upon the land to secure the payment of $1,100 to William M. Bishop, who had paid, as his surety, this sum, on account of the purchase money due from Harman to Dunbar; and that this debt had been paid off out of the money paid by respondent to Harman for the land. And he claimed that if the contract was rescinded he was entitled to be substituted to the rights of the creditor upon the land purchased b3r Harman from Dunbar for the amount of this debt.
    Upon the question in dispute between Harman and Thorn, as to the boundary of the tract sold by Thorn, the evidence is not very clear, and is not important, as this court does not decide that question. It is probable, if not certain, from the evidence, that Harman had paid all the purchase money for the land he bought from Dunbar and sold or exchanged with Thorn. It appears, too, that the dower of Mrs. Dunbar in the land had been laid off, and Thorn had rented it from her for thirty-seven or eight dollars a year, until 1868, when' she sold it for $450 to J. H. Hoge, when the rent was put at $50 a year.
    In 1866 Harman instituted a suit in equitjT in the Circuit court of Bland, which was afterwards transferred to the Circuit court of Wythe, against Mrs. Dunbar, the widow, and the children of D. D. Dunbar and G. C. Thorn, to have the legal title to the land he had sold to Thorn conveyed to him. And in his bill he states that at the time of his death, Dunbar owned *a tract of land in Wise county containing some eight or nine hundred acres, on which his widow resides; and he prays that the land may be conveyed to Thorn free of the in-cumbrance of the widow’s dower, and that her dower be assigned to her in the land on which she lived in Wise county. Though this suit was still on the docket nothing has been done in it.
    In the progress of the cause Harman filed a plea in bankruptcy; and his assignees were brought before the court. And then the cause came on to be heard on the 4th day of November 1872, when the court held that Thorn was entitled to a rescission of the contract between himself and Harman, and consequently to a restitution of the tract in possession of Stimson, and reimbursement of the $2,000 he had paid to Har-man, with interest, and to have the same a charge upon the lands of Harman in possession of the plaintiff, &c. The decree was that the said contract should be rescinded, and that Stimson should deliver possession of the land sold to Harman within thirty days. And the cause was remanded to the rules with leave to the plaintiff to amend his bill and make the heirs of Dunbar parties, &c. And thereupon Stimson applied to a judge of this court for an appeal; which was allowed.
    Crockett & Blair and J. J. Wade, for the appellant.
    R. C. Kent, for the appellee.
    
      
      Specif ic Performance — Compensation.—See Stimpson v. Bishop, 82 Va. 190, for further litigation concerning the property involved in this suit. Upon the question of specific performance and compensation, see Hendricks v. Gillespie, 25 Gratt. 181, and note.
      
    
   MONCURH, P.,

delivered the opinion of the court.

The court is of opinion that the contract between. Gordon C. Thorn and Robert W. Harman for an exchange of lands, as mentioned in the proceedings in *this cause, ought to be specifically executed, if a good title can be made by them to the said lands, according to the conditions of their title bonds respectively.

The court is further of opinion that the evidence in the cause strongly tends to prove, if it does not fully prove, that the said Harman has a good equitable title to the land mentioned in his title bond, being the land bought by him of U. D. Dunbar; that he has fully paid the purchase money due by him to said Dunbar, and that the only defect in the title of said Harman is, that the naked legal title to said land is yet outstanding in the heirs-at-law of said Dunbar, who is dead, which legal title can therefore be readily obtained by the aid of a court of equity.

The court is further of opinion that under all the circumstances of this case, as disclosed by the record, a reasonable further time ought to be afforded to the said Har-man and the appellant 1ST. B. Stimson, to perfect the title of the said Harman to the said land mentioned in his title bond, either by prosecuting to a final decree the suit already brought for that purpose by said Harman against the widow, children and heirs of said Dunbar, and the said Gordon C. Thorn, and now pending in the Circuit court of Wythe county, or otherwise as they may be advised.

The court is further of opinion that the widow of said Dunbar, if entitled to dower in his estate, ought to have such dower assigned to her out of any other real estate of inheritance of which he may have died seized, rather than out of the land sold by him to said Harman as aforesaid, of which he seems to have fully received the purchase money. And it appears from the bill filed by said Harman, in the suit brought by him as aforesaid, that the said Dunbar died seized of *a large tract of land, containing some eight or nine hundred acres, in the county of Wise, on which his said widow resided at the time of the filing of said bill.

The court is further of opinion that if the land contracted to be exchanged by said Harman with said Thorn as aforesaid be in fact encumbered by the right, title or estate of dower of the said widow of Dunbar, and if that be the only defect in the title of said Harman to said land, such defect is not sufficient to prevent the specific execution of said contract, but the same may still be executed with an allowance of compensation for such defect on the terms prescribed by the Code, ch. 106, § 12, p. 855.

The court is therefore of opinion that the Circuit court erred in decreeing a rescission of the said contract, at least in the state in which the pleadings and the proofs -were at the time when the said decree was rendered, and would have erred in making such decree, even if it would have been otherwise proper, without first making the widow and heirs of said Dunbar parties defendants to the suit.

Therefore it is decreed and ordered, that the said decree be reversed and annulled, and that the appellee, Thorn, pay to the appellant, Stimson, his costs by him expended in the prosecution of his appeal aforesaid here. And the cause is remanded to the said Circuit court, with instructions to permit the said Thorn to amend his bill, for the purpose of making the said widow and heirs of Dunbar defendants thereto; and such other purposes as may be consistent with this decree, and for further proceedings to be had therein; and in the said suit of said Harman against said Dunbar’s widow and heirs, which may be heard together with this cause in conformity with the foregoing opinion and decree.

*But the foregoing decree is to be without prejudice to any controversy which has arisen or may arise between the said Thorn and Harman, or their assigns, in regard to the land mentioned in the title bond of said Thorn to said Harman, and the proper quantity of said land, which is ordered to be certified to the said Circuit-court of Wythe county.

Decree reversed.  