
    Lewisburg.
    Price v. Browning.
    (Absent Cabell, P. and Brooke, J.)
    1847. July Term.
    
    1. F B by will devised an undivided moiety of certain specified lands and mills to J B. J B sold to P all his interest in the devise made to him by FB in the said lands and mills; for which lands and mills to the extent of his interest therein as devised to him as aforesaid, the said P is to pay to JB 1000 dollars: And as soon as P paid the purchase money / B is to make P a good and sufficient deed of conveyance for his interest in said lands and mills, as contained and devised in the will aforesaid. This is not a contract of hazard; but J B is bound to make to P a good and sufficient deed for the specific property named in said contract.
    
      2. F B left one child born after his will was made; and his widow renounced the provision made for her by the will; and her dower was assigned to her, principally out of land devised to two infant children of F B. After the contract between J B and P, the guardian of the infant children claimed to have the widow’s dower reassigned; and the afterborn child claimed her share of her father’s estate, as pretermitted by his will. Held : P was entitled to indemnity against these incumbrances; and to an injunction to restrain the collection of the balance of the purchase monev, until the extent of bis loss from said incumbrances could ~ bo ascertained.
    
      Francis Browning, jr. made his will in 1835, and died in April 1836. When he made his will his wife was alive, and he had six children to whom he bequeathed all his estate. Afterwards, and before his death, another child was born ; and the wife and all the children survived him.
    The second clause of the will is as follows:
    “ I give and bequeath to my sons John A. and William the tract of land on Little Cedar creek, of one hundred and eighty acres, on which my mills are built, and also the mills and all the machinery connected therewith; and particularly the new dam which I have built above the mills on said creek, and so much of the tract of land on which the new dam is built as may at any time be necessary to the keeping up said dam to its present height; and the free use of the water from said dam to said mills in any manner that may be deemed best for the carrying on said mills and machinery. And I give them the exclusive right of erecting mills on said creek, so that none are to be built above to interrupt them.”
    By a subsequent clause of the will the testator gives the set of blacksmith’s tools at the mills to his sons John and William for the use of the mills; aud he gives them the use of his middle meadow for the term of ten years. He gives to his two daughters each a tract of land; and to his two youngest sons Francis and Aaron the plantation on which he lives.
    After the death of Francis Browning, jr. his widow renounced the provision made for her by the will of her husband, and in August 1837, her dower was assigned her by commissioners appointed by the County Court of Russell. This dower included nearly the whole of the land devised to the younger sons, and also the middle meadow devised for ten years to John A. and William: and the widow took immediate possession thereof.
    In April 1838, John A. Browning made a contract with John Price for the sale of the property devised to by j^jg father, and executed a title bond, in which he states the contract as follows: !! Whereas the above bound John A. Browning has sold to the said John Price all his interest in the devise made to him by his father Francis Browning deceased, in a certain tract of 180 acres situated on Little Cedar creek in the county of Russell, and the mills and dam and use of the water, together with the carding machine and other machinery connected therewith, and blacksmith tools, and the grass on a certain meadow, which was devised to the said John A. and his brother William for the term of ten years; which said tract of land of 180 acres, one moiety whereof with the mills, carding machine, use of dam, &c. as hereby intended to be included, is bounded as follows: Beginning, &c. For all which said land, mills, machinery, &c. to the extent of his interest therein, as devised to him as aforesaid, the said John Price is to pay to the said John A. Browning the sum of 1000 dollars.” He then binds himself to give possession of the carding machine forthwith, and of the residue of said property by the 19th of the May following; and that on the 15th of October 1839, or as soon thereafter as Price shall pay the purchase money, he will make to said Price a good and sufficient deed of conveyance for his interest in said land, mills, machinery and privileges as aforesaid, as contained and devised in the will aforesaid.
    In September 1844 Price filed his bill in the Circuit Court of Russell county, in which after stating his contract with John A. Browning, and that he had been put into possession of all the property purchased, except the meadow, which was held by the widow as a part of her dower, he alleged that he had paid the greater part of the purchase money; that for the remainder, amounting to 430 dollars, ho had been sued, and a judgment would be rendered therefor at the next term of the Court. And he prayed the Court to enjoin the collection of the same, on the ground that he was in danger of being subjected to loss by a reassignment of the widow’s dower at the suit of the two youngest sons of Francis Broioning, jr. out of whose lands the dower had been assigned; and also from the claim of the child who was born after the will of Francis Browning was made, and who had been pretermitted therein. The injunction was granted.
    
      John A. Browning answered the bill, and insisted that he sold only the interest which he had in the property devised to him by his father; that such was the contract between himself and the plaintiff, who resided in the neighbourhood, and was fully informed of all the facts on which he relied in his bill at the time the contract was made; and that if the title bond which he executed stated the contract otherwise, it was not according to the agreement.
    After the defendant had filed his answer the plaintiff had leave to amend his bill; and he then stated that the pretermitted child of Francis Browning had filed her bill asserting her right to contribution from the devisees of her deceased father; and that the two youngest sons of Francis Browning had also instituted a suit for the purpose of having the widow’s dower assigned equally out of all the lands of their father; and that both these suits were then pending.
    
      John A. Browning did not answer the amended bill, and it was taken for confessed. And then the cause came on to be heard, when the Court dissolved the injunction and dismissed both the original and amended bills, at the costs of the plaintiff. From this decree the plaintiff applied to this Court for an appeal, which was allowed.
    
      
      The Attorney General and B. R. Johnston, for the appellant.
    
      Price, for the appellee.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that the proper construction of the contract between the parties contained in the title bond executed by the said John A. Browning to the appellant, dated the 9th of April 1838, required the said John A. Browning to make a good and sufficient deed to the appellant for the specific property named in said contract, and devised and bequeathed to said John A. Browning by the will of Francis Browning, jr.; the reference to the devise being descriptive of the property sold and to be conveyed, and not being intended to make the contract one of hazard on the part of the purchaser, as to the interest in the estate purchased by him. The Court is farther of opinion, that the purchaser was entitled to indemnity against the incumbrances growing out of the renunciation of the will by the widow of Francis Browning, jr. and the assignment of dower to her in said Francis Browning, jr.’s estate, and the claim of the pretermitted child to contribution from the other devisees and legatees in the will; and to an injunction to restrain the payment of the balance of the purchase money, until the extent of his loss from said incumbrances could be ascertained. The Court is therefore of opinion that said decree is erroneous. It is therefore reversed with costs to the appellant, and remanded, with instructions to reinstate the injunction heretofore awarded, to await the determination of the controversies growing out of said assignment of dower to said widow, and the claim to contribution by said pretermitted child; and for farther proceedings in order to a final decree.  