
    *Reeves v. Dickey.
    July Term, 1853,
    Lewisburg.
    i. Real Estate — Sale of Absolute Interest by Owner of Conditional Interest. — A party Raving made a purchase of three-sixteenths of a tract of land, upon the condition that a certain ore upon it proved to be good silver ore, afterwards sold one-sixteenth of the land absolutely, the purchaser knowing the ■ terms of his purchase. The sale is a valid sale,
    a. -Same — Same.—The state of the vendor’s title being known to the purchaser, and the legal title being in fact outstanding, the -vendor is entitled to a reasonable time in which to perfect the title.
    
      3. Costs — Allowance of — Judgment for Purchase Money Enjoined. — A purchaser coming into equity to enjoin a judgment for the purchase money of land, though the title is afterwards perfected, is entitled to his costs; and the injunction is to be dissolved without damages.
    In April 1847 James Dickey applied for and obtained from the Circuit court of Grayson county, an injunction to a judgment for six hundred dollars, with interest and costs, recovered against him by Jesse A. Reeves. In his bill he charged that the note on which the judgment was recovered, was given for the price of one-sixteenth of a tract of seventy-five acres of land in the county of Grayson, on which it was represented there was a silver mine. That before his purchase Reeves represented to the plaintiff that the ore on the land had been tested, and had been ascertained to be silver ore. That the plaintiff had made no experiment himself, and knew nothing of the quality of the ore, or what kind of ore it was; but relied wholly on the representations of Reeves. That after his purchase the plaintiff and others who had an interest in the mine, proceeded to search for ore, and to make some experiments; but they could find no silver ore; and that the ore found on the land had been tested and ascertained to be iron. That it was untrue as stated *by Reeves, that the ore had been tested and ascertained to be silver, prior to plaintiff’s purchase, and that said representation was fraudulent.
    The plaintiff further stated that the land on which this silver mine was supposed to be, was held in the early part of the year 1845, by Richard Billings, by virtue of a title bond executed to him by Charles Doughten. That after the pretended discovery of the silver ore, Billings commenced to sell interest in the said mine to various persons; and amongst others, he sold to Jesse A. Reeves one-fourth of the whole interest in the mine. That this contract was conditional that if the ore upon the land proved to be good silver ore, he was to pay to Billings five hundred dollars; but if the ore did not prove to be silver the contract was to be void. That afterwards, in the month of March 1845, Reeves sold to the plaintiff one-fourth part of his interest for six hundred dollars, for the payment of which the plaintiff executed his bond payable in six months. That after the experiments made as before stated, by the parties having an interest in the mine, the plaintiff determined to make a further experiment, and for that purpose went upon the land where the mine was represented to be, when Billings refused to permit him to work upon it, he being in possession of the land and alleging that those, and among them Reeves, who had purchased from him an interest in the mine, had refused to pay him. That Reeves, as plaintiff had under* stood and believed, had not paid any part of the purchase money, but had refused to do so. That he could not make a sufficient title to the interest he had sold the plaintiff. That he had not acquired the legal title to any part of the land. That Doughten and Billings were not vested with the title; but that it was outstanding in another person, upon whom there was no obligation to convey it to any one; so that if the ore in the mine was really silver, the plaintiff was advised that under his contract with Reeves, *he ought not to be compelled to pay the purchase money until the title was secured to him.
    Reeves answered the bill. He admitted the facts as to Billings’ title to the land under a title bond from Doughten ; and that he had purchased from Billings upon the condition stated in the bill. But he denied that the plaintiff relied wholly on his representations in reference to the mine and the quality of the ore; or that he had made any such representations to the plaintiff as he stated in his bill; and he alleged that before the plaintiff purchased he had an experiment made with the ore. He further stated that the plaintiff knew, before his purchase, the terms on which defendant had purchased from Billings; and that he knew further, that after he had agreed ,to purchase, defendant had agreed to pay Billings. That plaintiff had endeavored to prevent Billings from fulfilling his agreement with the defendant, and had procured him to forbid plaintiff’s working the mine that he might have an excuse for putting such a charge in his bill. The plaintiff knew the condition of the title when he purchased; and in fact there was no difficulty about it, as defendant hoped would fully appear.
    The testimony in the cause showed that Dickey did, before his purchase, test the ore; and there was a total absence of any proof that Reeves made any representations to him as to the character or quality of the ore. Whilst the cause was pending, Doughten executed a deed by which he conveyed the land to Billings; and Billings conveyed to Reeves.
    The deposition of Jesse Austin was taken, and he stated, that he claimed a part of the land sold by Doughten to Billings; and he stated further, that he had executed a bond to Reeves and others, by w’hich he had bound himself that if any part of the mineral was on his land they should have it on the same terms on which they were to get it from Billings.
    In 1849 the cause came on to be heard, when the *court perpetuated the injunction; whereupon Reeves obtained an appeal to this court.
    Floyd, for the appellant.
    B. R. Johnston, for the appellee.
    
      
      Costs — Allowance of — Judgment for Purchase Money Enjoined. — Though a plaintiff coming properly into court to enjoin a judgment on account of defects in the title of the land for the purchase of which the debt was contracted, is entitled, upon the removal of the objections, to have the injunction dissolved without damages, and to have his costs; yet if he had another case depending where the same questions were pending, and where he could have had the relief asked for, by a proceeding in that case, he will not be allowed his costs. Young v. McClung, 9 Gratt. 336.
      See generally, monographic note on “Costs” appended to Jones v. Tatum, 19 Gratt. 720.
    
   MONCUR35, J.

This is an appeal from a decree perpetually enjoining a judgment on a bond given for the purchase money of one-sixteenth of the mines and minerals in a certain tract of land. Relief is sought against the judgment on the grounds, first, of fraud in making the sale; and secondly, of want of title. Bet us see whether and how far such relief should be granted.

First. On the ground of fraud. The ap-pellee has wholly failed to prove that the appellant was guilty of any fraud in making the sale. I have carefully examined and considered the evidence in the case, and am of opinion that so far from sustaining the allegations of fraud contained in the bill, it proves the contrary. I deem it unnecessary to review the evidence in detail.

But it is argued by the counsel for the appellee, that the appellant had only a conditional interest in the mine, and, in selling an absolute interest, sold what was not his; and was therefore guilty of a fraud. A sufficient answer to this argument is, that the appellee made the purchase with full knowledge of the nature of the appellant’s interest: and it is difficult to conceive how, in such a case, a vendor can be guilty of fraud in selling a greater interest than he has. The fact no doubt is, that the appellant, in the view of the parties, substantially had the interest which he sold. That interest was his if the mine was of any value; and if of no value, the matter was of no real importance. The material difference between Billings’ contract with him and his with the appellee was, that by the former the purchase money was to *be paid conditionally, whereas by the latter it was to be paid absolutely. It was certainly competent for the appellant, having purchased an interest for a sum of money payable conditionally, to sell it for a sum payable absolutely. The interest being his, however acquired, could lawfully be sold on such terms as might be agreed on between him and the purchaser. In selling an absolute, when he had only a conditional interest, he may have sold what, formally, was not his. But he did not thereby deceive the purchaser, nor do any injustice to Billings, who was probably privy to the sale, and at all events would be willing to ratify it on receiving the purchase money which the appellant had stipulated to pay him. To obtain the ratification of Billings, the appellant had only to dispense with the condition annexed, for his benefit, to his purchase, and make it absolute. Indeed, he might make his purchase absolute by admitting for that purpose that the mine was valuable. And he would be benefited by doing so, even if it were necessary for him to pay for the three-sixteenths purchased of Billings, to insure the sale of one-sixteenth to the appellee.

Secondly. As to the want of title. The appellee knew at the time of his purchase, that Billings held the land by a mere title bond from Doughten ; for the fact is recited in his contract. But he avers in his bill that neither Billings nor Doughten is vested with the title; and that it is outstanding in another person, upon whom there is no obligation to convey it. The name of that person is not stated in the bill. But it appears from the evidence that Jesse Austin claims a part of the land, and has recently brought an action of trespass against Billings. When the claim was first asserted, does not appear; though it probably was not until after the sale to the appellee. The fact, however, is not material. Before the claim was asserted Austin purchased from Billings an interest in the mine ; and *he has since given his bond to the appellant and others to sell to them on the same terms on which they had purchased from Billings, if any part of the minerals should be on any part of his land. Therefore, if it should turn out that Austin is entitled to any part of the land included in the bounds of the tract sold by Doughten to Billings, the appellant would have the same right to perfect his title to one-sixteenth of the minerals on that part as on the residue of the tract. At all events, the appellant having been guilty of no fraud in making the sale, and there being no just ground for rescinding it, he ought to have a reasonable opportunity of perfecting the title if it be defective. He conveyed the interest to the appellee at the time of the sale, who has since, in 'effect, been in the enjoyment of it, and explored and worked the mine. It is true he says in his bill, that he had recently determined to make a further experiment, and went for that purpose to the land, when Billings forbid and refused to permit him to work upon it. But it is proved that this was by the procurement of the appellee, and a mere contrivance to avoid the sale and evade the payment of the purchase money. It appears, from exhibits filed in the cause and copied into the record, that since the suit was instituted Doughten has conveyed the land to Billings; and the latter has conveyed one-sixteenth of the mines and minerals on the land to the appellant. So that it is probable the title is either already perfect, or may be made so by a release from Austin, if he has any right to any part of the land. But the appellee ought not to be compelled to pay the purchase money without having a good title.

I therefore think the decree should be reversed, and the cause remanded, with directions to the Circuit court to ascertain whether a good title has been or can be made; and if it has been, or can and shall, in a reasonable time, be made, to dissolve the injunction; Otherwise, to perpetuate it. But as the appellee had not received a good title when the bill was filed, and therefore rightfully came into a court of equity to enjoin the judgment, he should recover his costs in the Circuit court, in any event, and should pay no damages in case the injunction should be dissolved.

The other judges concurred in the opinion of Judge Moncure.

The decree was as follows:

The court is of opinion, that the contract of sale in the proceedings mentioned, between the appellant and appellee, was fairly made without any fraud or misrepresentar tion; and there is no just ground for rescinding it: That the Circuit court ought to have ascertained, by reference to a commissioner or otherwise, whether a good title had been or could be made by the appellant to the appellee, to one-sixteenth of the mines and minerals which may be on the tract of land referred to in the said contract; and ought to have dissolved the injunction, if such title had been, or could and should in a reasonable time be made; or to have perpetuated it if otherwise: and that therefore the said decree is erroneous. Therefore the same is reversed with costs; and the cause is remanded to be further proceeded in according to the foregoing opinion. But as the appellee had not received a good title when his bill was filed, and therefore rightfully came into a court of equity to enjoin the judgment, he should recover his costs in the Circuit court, in any event, and should pay no damages in case the injunction should be dissolved.  