
    *Griffin’s Ex’or v. Cunningham.
    January Term, 1870, Richmond,
    i. Contract of Sale—Bill for Specific Performance— Must Show Good Title.—A vendor of real estate seeking to enforce specific performance of the contract of sale, must not only have a good title, but he must show it.,
    2. Same—Same—Same.—Executors sell a house and lot in R. As to five-sixths the title of their testator is clear; for the other sixth no deed can be found after diligent search in the clerk’s office where it should have been recorded, and among the testator’s papers. The former owner is dead, and her husband testifies that she did make a deed for it; but there is doubt whether he is not mistaken as to the property conveyed. The purchaser will not be required to complete the purchase.
    3. Same—Same—Adversary Possession.—In this case the testator went into possession of the lot in 1846, and built upon it and held possession until his death, and authorized his ex’ors to sell it; but it appeared that in 1849, he built upon the lot under an agreement with the owner of the one-sixth, as to their respective interests in the property. He cannot be held to have had adversary possession, so as to entitle the executor to enforce specific performance of the contract of sale.
    4. Same—Same—Decrease in Value before Good Title Shown.—in fact the owner of this sixth had conveyed the property to the testator and the deed was of record in the clerk’s office, though the parties had failed to find it; but before it was found the property had greatly decreased both in its annual and fee simple value. The purchaser will not be compelled to take it.
    This was a suit in equity in the Circuit court of the city of Richmond, brought by Fendall Griffin’s ex’ors against Edward Cunningham, to enforce the specific performance of a contract for the sale of a house and lot in the city of Richmond, known as the Wall street hotel. Fendall Griffin died after the 19th of October 1865, the date of his will, which was admitted to probate in the court of Hustings of the city of Richmond *in April 1866. On the 3d of May 1866, the executors sold at auction the Wall street hotel, when Edward Cunningham became the purchaser, at the price of 19,900, on the terms of one-fifth cash, and the balance on a credit of six, twelve, eighteen and twenty-four months, interest added. After the sale Cunningham employed counsel to examine the title, who gave a written opinion setting out the title. It seems that the property was derived from William Cook deceased. As to four-sixths of it, the title in Griffin was perfect. As to one-sixth it appeared that John Shore, who had title to it, conveyed it to C. J. Griswold, in trust to secure a debt which he owed to Griffin; and he afterwards, conveyed it to Griffin; but the deed to Gris-wold was not released. As to the other sixth it was owned prior to 1846, by Martha E. Shore, who afterwards, but prior to 1850, married Joseph M. Marvin of New York. Martha E- Shore, prior to her marriage, conveyed this one-sixth as well as other property, by two deeds, to C. J. Griswold, in trust to secure to Griffin two debts of S300 each, which she owed to Griffin; but after a diligent search of the records of the clerk’s office of the Hustings court of the city, and of the County court of Henrico, by the counsel employed by Cunningham, and by counsel employed by Griffin’s executors, no deed could be found from Martha E. Shore, for this sixth. And the counsel reported that as to this sixth the title was defective; that as to John Shore’s sixth, the legal title was outstanding in the trustee; and he álso expresses a doubt whether under the provisions of the will of Eendall Griffin, the sale by the executors was not premature. But it is unnecessary to notice this objection further.
    Cunningham having received this opinion, declined to take the property; and on the 21st of May the executors filed their bill to enforce the contract. They set out the will of their testator, state the sale, and *their tender to Cunningham of a deed for the property, and his refusal upon various false pretenses, to comply with his contract; and pray for a specific execution of it; and that in the meantime the property may be placed in the hands of a receiver; and for general relief.
    Cunningham answered, and said, he was somewhat excited by stimulants at the’time he bid for the property. That after the auction, he having examined his condition, found that he had acted imprudently in bidding, and that immediate compliance with the terms of sale was impossible. That he therefore went to the auctioneer and told him that he could not comply with the terms, and he wished the sellers to keep the property; but that the auctioneer informed him a short time afterwards, that the vendors would not release him. That he thereupon employed counsel to examine the title, who reported it defective; and he files trie report of the counsel as a part of his answer. That he immediately handed the report to the auctioneer, that he might communicate it to the vendors. That they have done nothing to remove the defects in the title; and he therefore refuses to take the property.
    At the June term of the court, a receiver was appointed to take possession of the property, and preserve the rents of the same until the further order of the court. And one of the commissioners of the court was directed to enquire whether the title to the property, as tendered by the plaintiffs to the defendant, was good and sufficient in law and equity; and report to the court with any matters specially stated, &c.
    On the 20th of October commissioner Pleasants made his report; in which he set out the title of Eendall Griffin to the Wall street hotel. As to four-sixths of it there was no difficulty. He reported that the title to the one-sixth derived from John Shore was good, though perhaps not strictly and regularly the legal title; *and that might be corrected by requiring the trustee to execute a release. He reported the two deeds of trust executed by Martha E. Shore to secure two debts due Eendall Griffin. That she by deed dated November 3d, 1849, conveyed to Griffin her interest in the other property coming to her as this did; but that no deed had been found on the records or exhibited to him, by which she convejTs her interest in this Wall street property absolutely to Griffin. And he reports that as to five-sixths of the property Griffin’s title is good; that he has no deed for the remaining sixth ; but that the legal title to that is outstanding in the trustee Griswold; but that Griffin’s estate is entitled to have discharged out of that sixth the two debts of $300 each, secured by the deed of trust, with interest; which lien, it appears, Griffin has not released. He therefore reports that the title to the property tendered by the plaintiffs to the defendant, is not sufficient in law and equity, except and until the one-sixth of Martha E. Shore, then vested in Griswold the trustee, be transferred to Griffin. And he reports that he has understood that Martha E- Shore is now living in New York, and has intermarried with one Marvin.
    On the 5th of December 1856, and after the return of the commissioner’s report, the deposition of Joseph M. Marvin was taken, and was filed in the cause. He says that Martha E. Shore was his first wife; that she was indebted to Griffin; and that the debt was paid by her selling to him her interest in the Wall street property; and he thinks her interest also in all other property to which she had a right in Virginia. And that the conveyance of the Wall street property to Griffin was made in the spring or summer of 1850.
    On the 17th of December 1866 one of the plaintiffs made and filed an affidavit, in which he stated that the former residence of Eendall Griffin, and where his business papers were deposited, was consumed *by fire on the 25th of March 1865, and .that a majority of said Griffin’s papers were consumed and destroyed by said fire. And there was filed in the cause a paper signed by Martha E. Shore, dated November 3d, 1849, in which she admits that the buildings erected on the Wall street lot by Eendall Griffin, were erected with her assent, and that he was to receive the rents until he was paid the cost of the building; and then the whole property to be shared by those entitled to the lots according to the respective proportions.
    On the 20th of December 1866, the court recommitted the report to commissioner Pleasants, with instructions to enquire among other things:
    1st. Whether Martha E. Shore ever conveyed her share of the lot in controversy to the testator of the plaintiffs ; and if she did, when, and upon what consideration ; as well as for what consideration she conveyed to him her property in the county of Henrico? 2d. When Eendall Griffin acquired possession of the lot in controversy; when he erected the buildings thereon; and whether or not one-sixth of the same remains unoccupied by buildings? 3d. Whether since the sale by the plaintiffs to the defendant, this Wall street property has diminished in market value; what is the present value thereof; and whether there be any circumstances which would make the said property-less advantageous to the defendant than it would have been if a complete title thereto had been made immediately after the sale?
    On the 20th of May 1867, commissioner Pleasants returned his report. He reports the evidence of Marvin; but says that no deed has been found or exhibited to him by which Martha E. Shore conveyed to Griffin, her interest in the Wall street property. That the deed of the 3d of November 1849, from her to Griffin, does not embrace her interest in this property, *but is confined to her property in Henrico county; and purports to be in consideration of $333 34, in hand paid her by Griffin. That Griffin acquired possession of the lot in controversy, some time prior to the year 1846; and .in that year, he had possession of the whole of said lot, and then erected buildings on it, and that he added other buildings in 1849; and that one-sixth of said lot does not remain unoccupied by buildings. That the property had diminished in market value since the 3d of May 1866; that its present market value was between six and seven thousand dollars; and it would not rent for as much then as at the time of the sale; the business on that street being less than at that time; and that these circumstances would make the property less advantageous to the defendant than it would have been if a complete title had been made immediately after the sale. The commissioner thinks that the deed referred to by the witness, Marvin, is the deed of 3d of November 1849, which does not embrace this property. And he reports it as his opinion that the title is not sufficient. That it did not appear that Griffin had possession under color of title; or that his possession was adverse, or not the possession of his co-tenants; nor that it was against parties who were under no disabilities; nor that it was sufficient in length of time, since the statute of limitations may not have continued to run after April 1861.
    The plaintiffs excepted to the report on the grounds: 1st. That Griffin had been in possession of the property ever since 1846. 2d. That in 1850, Griffin had purchased the share of Martha E- Shore, and she and her husband conveyed it to him, and he died in possession of it in April 1866; all the while claiming it as his own and building upon it; and therefore, if there was no conveyance, his title was perfect. 3d. That there is no proof that the property has diminished in value. But if it has it was the loss of the defendant and not of the *plaintiffs, because the title was good, and the defendant should have executed his contract.
    On the 10th of August 1867, the cause came on again to be heard on the papers formerly read, and the report of comm’r Pleasants, with the exceptions thereto, and also the report of the receiver in the cause; whereupon, the court being of opinion that specific performance of the contract ought not to be decreed against the defendant, dismissed the bill with costs; and directed the receiver to pay over the rents to the plaintiffs, and return the property. And the cause was retained on the docket for a further report of the receiver, and for a settlement of his account.
    On the 30th of November 1867, the two surviving executors of Eendall Griffin, presented their bill to the Circuit court of Richmond, praying that the decree rendered on the 10th of August preceding, might be reviewed, reversed and annulled, and asked leave to file the same; which was allowed.
    The bill states the sale of the Wall street hotel property to Cunningham, and his refusal to take it on the ground that the title was defective, in that Martha E. Shore was the owner of one-sixth of the lot and tenement, and had never conveyed it to Griffin. That Martha E. Shore married Joseph M. Marvin, and plaintiffs employed counsel to examine the records of Henrico county for a conveyance from Marvin and wife to Griffin; but after diligent search, he was unable to find it. And the commissioner reported against the title. That since the decree dismissing the bill was rendered, one of the plaintiffs discovered, accidentally, among the papers of his testator, the fee bill of E. N. Ellett, late clerk of Henrico court, for recording a deed from Marvin and wife to Eendall Griffin, which they exhibit. That a new search was made in the clerk’s office of Henrico County court; and the original deed from Marvin and wife to Griffin, for the property was found which *was also exhibited with the bill. They make Cunningham a defendant, and pray that the decree aforesaid may be reversed, and that the relief prayed for by their original bill may be granted to them.
    Cunningham demurred to the bill, and also answered. After referring to what he said in his answer to the original bill, and the proceedings in the cause, and to the .admission of the plaintiffs that their counsel had failed to discover the missing link of the title, he said that the defendant’s counsel and the commissioner of the court, after laborious examination, could not discover it; and reported the title defective. He insisted that the laches in making out the title was not his, but was that of the plaintiffs; and that if they had used any diligence they could have found the fee bill immediately after the auction sale of the property. And he insisted further, that the circumstances of the property, and of the country, and also of himself,- had so changed since the sale that it would be inequitable now to enforce the contract. That if he could have gotten a good title at once he could have sold or otherwise have disposed of the property to advantage. That more than a year had occurred since the sale; the property has depreciated thousands of dollars in value; the rent has sunk from $1,800 to $600 per annum, and the value of real estate in that part of the city had greatly depreciated; and the defendant has been deprived of the ability to bear the loss on this depreciated property.
    
      On the 20th of May 1868, the court directed a commissioner to enquire whether the property had depreciated since the sale; and if so to what extent; whether before or since the institution of this suit; whether in fee simple or annual value; and whether the depreciation was temporary or permanent; whether any change in the condition of the defendant and in his relations to said property had occurred since the said sale, which would render the property less advantageous *to him, than if a good title had been tendered to him, by the executors of Griffin with due diligence after the sale; whether the title of said Griffin was or was not a good title to said lot; and whether that title was tendered to the defendants with the muniments or deeds evidencing such title ; and whether any adverse title to the lot had been asserted by an3T person; whether the executors of Griffin have been guilty of any laches in tendering a title to said lot; and that he report all the evidence showing such laches.
    On the 28th of May 1868, the commissioner made his report. He says: 1st. That the property has depreciated in market value since the sale to the defendant, about fifty per cent. ; and that it has depreciated since the institution of this suit, both in its fee simple and annual value; and that this depreciation seems to be permanent. 2d. That it would be less advantageous to the purchaser than if a good title had been tendered by the executors with due diligence after the sale, both on account of its' depreciation and of a change in the circumstances of the defendant that has occurred since the sale. 3d. That the title of Griffin, it now appears, was a good title to the lot; but that the title was not tendered by the ex’ors of Griffin, as far as the interest of Martha E. Shore or Marvin, therein, amounting to one-sixth part was concerned. That the commissioner searched carefully himself in the clerk’s office of Henrico County court, and also in the clerk’s office of the Richmond Hustings court, for the deed from Martha E- Shore to Griffin, and for a deed from Martha E. Marvin and her husband to Griffin; and that the counsel for the executors did the same thing; but that the deed was not found by either of them, although it had been recorded in Henrico; and that the failure to find it arose, as the comm’r supposed, from its not having been indexed. 4th. That no adverse title to the lot has been asserted by any person so far as appears to the ^commissioner. 5th. That the ex’ors of Griffin were guilty of laches in tendering a title to said lot. They should have found the fee bill of Ellett, which was among the papers of their testator, whilst the title was undergoing investigation before the commissioner under the decree of June 6th, 1866; that report was not made until the 20th of October, and not filed until the 3d of November 1866; if the fee Dill had been found at any time before that day, the deed from Marvin and wife to Griffin, would have been found at that time, and the commissioner’s report would have been different from that filed.
    The plaintiff's excepted to the report of the commissioner:
    1st. Because after stating that the title of Griffin to the lot was good at the time of the sale, he sa3Ts the executors did not tender a good title to the purchaser, as far as the interest of Martha E. Shore was concerned. They insist that if the title was then good, a good title was tendered; and the only question was whether sufficient evidence of a good title was furnished. And they rely as conclusive on that question, upon the testimony of Marvin, the evidence of uninterrupted adverse possession by Griffin from 1846 until his death, and his d3'ing in possession ; and the absence of an3' adversary claim.
    2d. Because it imputes laches to the executors of Griffin, when, as they insist, the evidence shows the utmost diligence in hunting up the title; and they were foiled, as the commissioner was foiled, by the failure of the clerk of the County court to record the deed to Griffin.
    On the 1st of August 1868, the cause came on to be heard on the papers formerly read, the report of the commissioner Pleasants with the exceptions thereto, and the depositions, when the court confirmed the report, and dismissed the bill with costs. And thereupon *the executors of Griffin obtained an appeal to this court.
    Sands and Byons, for the appellants.
    Howison, for the appellee.
    
      
      Contract of Sale —Specific Performance—Record ilust Show Ability and Willingness of Plaintiff to Do His Part.—One who asks for a specific performance of a contract must show himself prompt and willing to comply with the contract on his part. See Bowles v. Woodson, 6 Gratt. 78. The record in a suit by the vendor must show that the vendor could convey good title. In Hendricks v. Gillespie, 25 Gratt. 197, the court, citing the principal case, said: “The record does not show that the vendor could convey a clear, unquestionable title to the heirs of the vendee, even at the date of the decree. The burden is on the vendor to show that the title is free from reasonable doubt, and that the vendee will not be exposed, by taking it, to litigation.” In Wood v. Walker, 92 Va. 24, 22 S. E. Rep. 523, there was a bill for specific performance of contract of sale of land. The bill did not allege that the vendor had done all that was required of him, nor the ability and the willingness to convey by sufficient title the property agreed on, nor had he tendered sufficient deed. The vendee demurred to the bill and the court of appeals held that the vendor’s bill had not made a case which entitled him to specific performance.
      As authority for the proposition that a court of equity will not generally decree a specific execution of a contract for the sale of land unless the vendor can make a good title thereto, see Linkous v. Cooper, 2 W. Va. 67; Middleton v. Selby, 19 W. Va. 168; Boggs v. Bodkin, 32 W. Va. 566, 9 S. E. Rep. 891.
      Same—Same—Same—When the Ability Must Exist. —In Garnett v. Macon, 6 Call 335, the court said: “A court of equity compels the specific performance of contracts, because it is the intention of the parties that they shall be performed. But the person who demands it, must be in a capacity to do, substantially, all that he has promised, before he can entitle himself to the aid of this court. At what time this capacity must exist, whether it must be at the date of the contract, at the time it is to be executed, or at the time of the decree, depends, I think, upon circumstances which may vary with every case. There is no subj ect which more requires the exercise of a sound discretion. The enquiry in every case of the kind, must be, whether the vendor could at the time, have conveyed such a title, as the vendee had a right to demand? If he could not then, whether he can now? And if he can, whether there has been such a change of circumstances, that a court of equity, oughtnot to compel the vendee to receive it?”
      Again, in Tavenner v. Barrett, 21 W. Va. 656, the court said, onp. 680: “Generally time is not considered of the essence of the contract; and accordingly it is not generally regarded as material, whether the title of the plaintiff was a good title, when he made the contract of sale or when he brought his bill for a specific performance, and he is permitted by the court to make out his title at any time before the report on his title, and if he can do so though his title was imperfect when the bill was filed, he will be entitled to a decree for a specific performance.” See also, on this point, Core v. Wigner, 32 W. Va. 277, 9 S. E. Rep. 36.
      Same—Same—Kind of Contract Necessary. — Again the bill must show that there was a contract written and signed, and that it was definite, certain, equal and fair. Edichal Bullion Co. v. Columbia etc., Co., 87 Va. 641, 13 S. E. Rep. 100. In Graham v. Call, 5 Munf. 401, it was said: “The courtis of opinion that, although the appellant and the testator of the appellee had, the one agreed to sell, and the other to buy, the lot in controversy, such agreement was subject toa condition (* * *) that the price thereof was to be thereafter agreed upon by and between the said parties respectively and the said price having never been so agreed upon by them; and it being now rendered impossible by the death of the appellee’s testator; thelcourt is of opinion that the said agreement was not so complete and perfected an one, as that it should be carried into execution by a court of equity, even if the possession of the said lot had been delivered to the said testator, in pursuance thereof, which is not shown to have been done.” See also, Buck v. Copland, 2 Call 218; Creigh v. Boggs, 19 W. Va. 240; Steenrod v. W. P. & B. R. Co., 27 W. Va. 1; Boggs v. Bodkin, 32 W. Va. 566, 9 S. E. Rep. 891.
      Same—Same—Must Be Consideration.—Where there is neither meritorious nor valuable consideration to support the contract, equity will not decree specific performance. Darlington v. M’Coole, 1 Leigh 36; Reed v. Vannorsdale, 2 Leigh 569.
      Same—Same—Same—Inadequate Consideration.—But mere inadequacy of consideration is not a valid objection to the specific execution of a contract. See Ambrouse v. Keller, 22 Gratt. 769, and foot-note; Talley v. Robinson, 22 Gratt. 888, and foot-note; Conaway v. Sweeney, 24 W. Va. 643. Nor a price double the value of the property in absence of fraud. White v. McGannon, 29 Gratt. 511, and foot-note.
      
      Same—Same—Same—Meritorious Consideration.—As to whether meritorious consideration is sufficient to justify a decree for specific performance there is conflict. See Keffer v. Grayson, 76 Va. 517; Halsey v. Peters, 79 Va. 60; 2 Min. Inst. (4th Ed.) 882 et seo. But the weight of authority in such case seems to favor specific performance.
      Same—Same—Doubtful Title Referred to Commissioner.—As said above, the vendor in a suit for specific performance must show that he can convey that title he agreed in the contract to convey. If the purchaser objects to the title which the vendor proffers and it appears doubtful whether the vendor can convey such title as would authorize a decree for specific performance, the title should be referred to a commissioner to be examined and reported on, before a decree is made. Beverley v. Lawson, 3 Munf. 317; Smith v. Parsons, 33 W. Va. 649, 11 S. E. Rep. 70.
      Same—Same—Defective Title—Vendor Compelled to Convey.—“While a purchaser, however, cannot be compelled to take a defective title, but has a right to insist upon a clear legal title, on the other hand, though the vendor cannot make the title he contracts to make, yet he may be compelled to convey such title as he has, and to compensate for the defect; nor does it lie for him to object for the want of a complete title in him.” Dunsmore v. Lyle, 87 Va. 393, 12 S. E. Rep. 610.
      Same—Same—Jurisdiction of Equity to Give Damages.—The court, having jurisdiction to specifically enforce a contract, has, as ancillary, the jurisdiction to give damages. See Nagle v. Newton, 22 Gratt. 814, and foot-note, where some of the cases on this point are collected.
      Same—Same—Same—How Damages Ascertained.—As to how the damages are ascertained, see Nagle v. Newton. 22 Gratt. 814, and foot-note.
      
      Same—Same-Purchaser Compelled to Accept Less. —"Where a purchaser cannot get a title to all he contracted for, If he can get the substantial inducement to the contract, he may insist upon taking, or he may be compelled to accept, a title to so much as the other party can give a good title to, with a reasonable compensation for what the party cannot effectually convey.” Evans v. Kingsberry, 2 Rand. 120. Of course, the latter portion of the above stated proposition depends on the facts and circumstances of each case and as to whether the purchaser will be injured by compelling specific performance against him in such case. See also, Tavenner v. Barrett. 21 W. Va. 680.
      Same —Same — Discretion of Court of Equity. — A plaintiff is not entitled, ex debito justitim, to a decree for specific performance. As to whether there shall be such a decree rests with the sound discretion of a court of equity. If specific performance would be unreasonable, or work injustice then the party will be left to his action at law. Shenandoah, etc., Co. v. Lewis, 76 Va. 835; Chilhowie Iron Co. v. Gardiner, 79 Va. 311; Edichal Bullion Co. v. Columbia, etc., Co., 87 Va. 645, 13 S. E. Rep. 100; Kenny v. Hoffman, 31 Gratt. 442; Edwards v. Van Bibber, 1 Leigh 194.
      Same—Same—Contract by Husband and Wife,—“A court of equity will not decree a specific performance of a contract by a husband and wife for the sale of the wife’s land, at the suit of the yendee, the wife refusing to execute the contract.” Clarke v. Reins, 12 Gratt. 98.
      See principal case cited and approved in Max Meadows, etc., Co. v. Brady, 92 Va. 84, 22 S. E. Rep. 845, and Middleton v. Selby, 19 W. Va. 174.
    
   WIEBOTTGHBY, J.,

delivered the opinion of the court.

The facts appearing to be material to the decision of the questions in this case appear to be in substance as follows:

The appellants, as executors of the will of Eendall Griffin, deceased, sold at auction May 3d, 1866, certain real estate situated in Richmond, known as the Wall street hotel, to the appellee, who bid therefor the sum of $9,900. The appellee claiming to have been excited by stimulants, on reflection and examination of his condition, became immediately dissatisfied with his purchase, and asked to be released. This being refused, he employed counsel to examine the title, who, on said examination, discovered the following apparent defects:

First. The property had originally belonged to one Wm. Cook, and from him descended to his heirs, and as one of said heirs, Martha E. Shore appeared to be the owner of one-sixth of the lot; and no record of an3* conveyance could be found from her to the testator.

Second, John W. Shore, another heir of one-sixth, appeared by the records to have executed two deeds of trust to a trustee to secure the payment of certain debts to the testator, and subsequently conveyed the same interest to the testator in satisfaction of said debts; but the trustee had not joined in the conveyance, thus leaving the legal title to such other sixth in said trustee.

Third. The will itself was claimed to be somewhat ambiguous in its terms, leaving the power of the executors to sell somewhat in doubt.

In answer to these objections, it is claimed that the testator held the property adversely from 1846, for fifteen *years, and thus had a perfect title, which could not be disturbed. It appeared that he improved the whole lot in 1846. On the 3d of November 1849, Martha E}. Shore seems, by writing filed in the cause, to have admitted that these improvements were made with her consent. Up to that time, at least, it appears that the possession of the testator was as a tenant in common with Martha E). Shore.

By deed of May 20, 1848, said Martha 13. Shore had conveyed this one-sixth to a trustee, to secure the payment of $300 to the testator; and by deed of June 22, 1849, she had made a similar deed of trust to secure another sum of $300 to said testator. By deed of November 3, 1849, the same date of the writing relating to her consent to improvements, she conveyed other property absolutely to said testator; but no record could be found of an absolute deed of conveyance of this one-sixth.

The appellee, on receiving notice of these apparent defects, notified the appellant that, in consequence thereof, he should not perform the contract; and thereupon a bill for specific performance was filed on the 21st of May 1866, accompanied by a tender of a deed of the propertj' by the executors.

On the 27th of November 1866, a deposition of Joseph M. Marvin, the husband of said Martha 13. Shore, was taken, and he testified that a conveyance was made of this one-sixth interest to Mr. Griffin in the spring or summer of 1850. In his deposition he speaks of two notes of $300 each, and says they were settled by her selling her interest in the Wall street property to Mr. Griffin; and also her interest in all other property to which she had a right in Virginia.

With this evidence before him, the commissioner, on the 20th of May 1867, reports that “it seems that the conveyance of which he speaks, from Martha EJ. Shore, was the deed of November 3, 1849, which does not embrace *her interest in the Wall street hotel; and no other conveyance from her has been shown.”

Rrom this it would appear that the commissioner, notwithstanding the evidence of Marvin, that such deed was made in 1850, believed from,the facts that “no such deed could be found, and that some other deeds were made a short time before that; he was mistaken as to the absolute conveyance having been made. I think that an inspection of the whole record will show that this conclusion of the commissioner was not an unreasonable one; but, on the contrary, would very naturally have been inferred.

He also reports, that it does not clearly appear that Griffin had possession under color of title; nor that his possession was adverse or not the possession of his co-tenants ; nor that it was against parties who were under no disabilities; nor that it was sufficient in length of time, since the statute of limitations had commenced to run.

This report was confirmed, and a decree rendered August 10, 1867, dismissing the bill.

In November 1867, the executor of Rendall Griffin accidentally discovered a fee bill for recording a deed among the papers of Mr. Griffin, which led to a further search among the records; and thereupon an absolute deed of convejTance of the interest of Martha EJ. Shore in this property was found to have been made on the 28th of May 1850 to said Griffin. The failure to discover this deed appears to have arisen from the fact, that it was not found in the general index of the records.

The appellant immediately filed a bill of review, setting up these facts, and again claiming a specific performance. There is evidence in the case, showing that in March 1865 the residence of the testator was destroyed by fire, and with it a majority of his business papers were consumed.

The appellee resisted this bill of review, upon the ^ground that there was laches by the appellant, and that during the delay which had taken place since the sale, the property had greatly depreciated in value, and his own circumstances had also so greatly changed as to render it impossible for him to comply with the terms of the contract.

I think the weight of the testimony is that the property had materially diminished in value during this time.

I do not consider it necessary in determining the questions in this case, to consider at length only the second apparent defect in the title; the want of evidence that the one-sixth interest of Martha E). Shore had been conveyed to the testator E'endall Griffin; as this appears to have been the principal and most material objection to the title. When the first decree was rendered, this defect did not appear to have been supplied, and the title was to that extent in doubt, notwithstanding the evidence of Marvin, as he might so easily have been mistaken, unless the facts of the case show that' the testator had held possession adversely long enough to have perfected his title, notwithstanding this apparent defect. This question of adverse possession seems to have been the principal reliance of the appellant in opposition to the commissioner’s report and to the first decree.

Now, in the first place, the commissioner has reported that there is no evidence of adverse possession. At that time the conveyance of Martha E}. Shore did not appear and could not be found. I am unable to discover from an inspection of the record, that at that time there was any evidence that the testator claimed the possession of this one-sixth interest under color of title. True he was in the actual possession, but as a co-tenant with Martha E). Shore, as appears certainly as late as November 3rd, 1849, and, as to all that then appeared, so continued. At that time although other property *was conveyed by her to Griffin this was not. So far as the evidence showed at the time of the first decree, except the very unsatisfactory deposition of Marvin, because of his liability to be mistaken under the circumstances, I cannot find that Griffin claimed to hold under color of title. Adverse possession does not depend upon matters of record. As against an older undisputed title such adverse possession must be shown positively by the party setting it up, and it may be and often is quite a disputed question.

The claim of title by adverse possession is rendered much more doubtful by the fact, that in the legislature which assembled at Wheeling, by the act of July 26, 1861, entitled “an act staying the collection of certain debts, it is provided that the time during which this act is in force shall not be computed in anj” case in which the statute of limitation, may come in question;” and this provision is again found in the act of February 8, 1862, relating to the same subjects; and in the acts of the Alexandria legislature of January 30, 1863, and January 23, 1865, to which may be added the act of March 2, 1866 chap. 77; though if this stood alone there might be doubts of its application to this case, as it is claimed that before that time the period of limitation had expired and rights had already vested; and also the acts of the body sitting at Richmond, claiming to be the general assembly of Virginia, of March 14, 1862, and February 23d, 1864, upon the same subject.

It is not for the purposes of this case necessary perhaps to decide upon the force and effect of these several acts, but they are proper to be considered, as at least casting a reasonable doubt upon the claim of the appellant to have had full title to the property in question by virtue of adverse possession for the period required by the statute of limitations.

This then, is, I think, quite plain:

First. That it was at least then quite doubtful, whether *Martha 33. Shore had conveyed her interest to the testator.

Second. That it was at least quite doubtful whether her original title had been overcome by an adverse possession of the testator.

This being so, the title of the testator was, at the time of the first decree, in a sta.te of at least reasonable doubt. It had been held so by competent and careful counsel after a thorough examination. The commissioner had so twice reported it; and the court below agreed with them upon this point, and I do not feel warranted in saying from the evidence, that such doubt was without reasonable foundation; and nothing occurred to change or clear up this doubt up to the time of filing the bill of review, ISTovember 30th, 1868.

It does not seem to me necessary to decide whether as a matter of fact he was entitled to the property by reason of adverse possession. Indeed he does not now rest the title upon adverse possession, but upon an absolute conveyance. But this did not then appear. If this conveyance is to be regarded as an ouster by the testator of his co-tenant, this ouster was not then shown. If the adverse possession depended upon this ouster, there was then no satisfactory evidence of this fact. The question then, was not -whether there was a deed, or whether there was adverse possession, but were these facts shown to the satisfaction of the court or to the reasonable satisfaction of the appellee; and as the evidence then stood, I do not think it was; and whatever may tie said as to the actual facts as they now appear, they were then at least matters of reasonable doubt, and so continued until November 30th, 1868, the time of filing the bill for review. In addition to this doubt, it may be said that the power of the executors to sell at the time he sold, is not beyond all reasonable question according to the terms of the will; nor would it have been impossible that there could have been something more than a *'bare legal title in the trustee of the deed of trust executed by John W. Shore; for it ■was not impossible that the debt secured thereby, had been assigned to some other person before the conveyance of John W. Shore to Fendall Griffin absolutely; in which case, such assignee would have an equitable interest in that portion to the amount of his claim.

While this reasonable doubt as to the title to a material part of the property -was in existence and could not be removed, I do not think the purchaser was compelled to comply with the terms of purchase. In the advertisement of sale, there was no intimation but that the title was perfectly clear. The bid must have been supposed to have been made with such an understanding. In Garnett v. Macon, 2 Brock. R. 185, 244, Ch. J. Marshall says: ‘ ‘In a contract for the purchase of a fee simple estate, if no incumbrance be communicated to the purchaser or be known to him to exist, he must suppose himself to purchase an unincumbered estate; and a court of equity will not interpose its extraordinary power of compelling a specific performance, unless the person demanding it can himself do all that it is incumbent on him to do.” On the same page, he says: “Both on principle and authority, I think it very clear, that a specific performance will not be decreed on the application of the vendor unless his ability to make such title as he has agreed to make, be unquestionable. See, also, Marlow v. Smith, 2 P. Wms. R. 198. In that case, the court say: “If there is the least doubt of the title (which was made to appear by the opinion of Sergeant Hooper and Mr. Webb), it would, by no means, be proper for the Court of chancery to compel the party to accept the title.” In Pincke v. Curteis, 4 Bro. Ch. R. 329, the solicitor general who was asking a specific performance, says: If there be a solemn doubt, I agree that the court will not compel the purchaser to take it.” See, also, Rooke v. Kidd, 5 Ves. R. 647; Stapylton v. Scott, 16 Ves. R. 272. In Sloper v. Fish, 2 Ves. & Bea. R. 145, it was a doubtful question whether the deed was absolute or had been delivered as an escrow only. In Jervoise v. The Duke of Northumberland, 1 Jac. & Walk. R. 540, there was an uncertainty as to the nature of the estate. In Lowes v. Lush, 14 Ves. R. 547, it was a question of doubt whether the sale had been anticipated by an act of bankruptcy.

In all these cases, the question seems to have been, not what was the actual fact, but was there reasonable doubt about it; and in such cases, specific performance was not enforced. I would not hold that in a case where such doubt appears to be frivolous, or is set up as a mere pretext, when upon examination, there appears to be no foundation for such doubt, the contract would not be enforced; but only in a case of reasonable doubt either as to law or fact; and in this, I think, I am fully supported by all the authorities upon the 'subject.

But it is contended that such doubt might have been removed by a proper examination of the records. It is a fact that search was made by the appellee, and no deed of conveyance was found in the general index. The law requires that an index shall be made by the clerk of all deeds recorded; and I think if a deed is not found there, a party is authorized to presume that no such deed exists, or is recorded. I think that the index, in the contemplation of the legislature, in requiring it, was a general index, and not merely an index to each book. Besides, it does not appear that the deed was referred to in any index. The counsel says he examined the title, and searched the records of the Hustings court and the County court of Henrico, and he does not find this conveyance. It ought to be presumed that he made a proper search. He is shown to be competent and careful. This appears by the opinion he gave; and he did all I think that could be reasonably *expected of him as counsel for the vendee. He pointed out the apparent defects, and called upon the vendor to obviate these defects. But I think it may be said that it is the duty of the vendor, especially if he seeks a specific performance, and if apparent defects in the title are pointed out, to remove such defects, and to show that they are not so, and remove the doubts arising thereon. If, as he contends, this might have been done by a proper and lawful search, that is so much more reason why he should have done it. If he is unable to do it, it is not necessai'3r to say that it is his laches or negligence, but it is his misfortune. If his private papers have been burned, that is his loss. If other papers of his cannot be found, that is his misfortune. He must be not only prompt, willing and eager, but he must be able to do all on his part. He must not only have a good title, but he must show that he has such title, especially in a case of doubt, and where apparent defects are pointed out; and he must also show it beyond all reasonable doubt.

In Lloyd v. Collett, 4 Bro. Ch. R. 469, a purchaser, who had made a deposit on his purchase, was allowed to withdraw it, and abandon the purchase, because the, vendor had neglected to give him an abstract of his title from August 18, 1792, to March 25, 1793 ; and in the meantime there had been a material depreciation in the value of the property. See, also, Fordyce v. Ford, Id. 494; Seton v. Slade, 3 Lead. Cases in Equity 377.

There is a very good reason why it should be incumbent upon the vendor to remove doubts, and furnish the evidence of his title. He must be supposed to have the means for so doing; at least much more so than the vendee, He must be supposed to know his own title, and the sources of it, while a vendee could not be supposed to know anything of it. This must have been peculiarly so in England, when they had no registry acts, and the muniments of title were to be found only *in the possession of the vendor. Nor do I see why in this State, where we have these registry acts, the rule should be changed. It is true the records facilitate the enquiry very much, but they are not absolute evidence of title. A conveyance may be perfectly good, though not recorded, except as to creditors and bona fide purchasers. Besides, the title often rests upon matters in pais, which the records do not disclose. But as to these matters, the vendor must be presumed to be better informed than the vendee; and therefore I see no sufficient reason for adopting a different rule in this country from that which appears in the English reports. I will not say’ that it was the duty of the vendor in this case to furnish the evidence of his title, but that it was his misfortune that he could not do so. See, also, 4 Graft. 253. This course of reasoning leads us to hold, that at the time of the first decree in this case, and with the facts then appearing, the vendee ought not to have been required to take the title as it then appeared; and the decree dismissing the bill was proper, and there were no circumstances changing this state of things until the filing of the bill of review in November 1868.

Then it appeared that a conveyance had actually been made by Martha E. Shore of her interest to the testator in May 1850, and then such deed was found to be upon the record though it had not been indexed. Then for the .first time the doubt upon that subject is fully removed.

But in the meantime, as I have already said, the weight of evidence shows there was a material depreciation in the value of the property.

The decree shows also that his own circumstances had in the meantime changed so as to render it impossible for him to perform the contract; though _ as his own testimony upon this last point is quite contradictory, I do not give it much weight.

It is true that time is not, as a general rule, regarded *as of the essence of a contract in equity unless it is so made. But if by the lapse of time during the default of either party, circumstances have happened which materially change the value of the contract as to the other party not in default, then time is of the essence of the contract. Garnett v. Macon; Floyd v. Collett; and Seton v. Slade; above cited; Story’s Eq. Jur., sec. 776, and cases there cited.

Suppose that in the meantime the property had greatly risen in value. Is it to be supposed that the vendor would have filed this bill of review? Or if the vendee had in such case then asked for specific performance on his part would not the vendor have resisted it?

I do not give anjr weight to the fact that the vendee at the time of making his bid was excited by stimulants. This is no excuse for refusing to comply with the terms of sale. It is no doubt true also that he was eager and anxious to find excuses for his non-performance. But this would not preclude him from taking advantage of any valid and lawful objection, if such could be found; and it seems to me that they were found in this case.

On the whole, I cannot come to any other conclusion, than that under the circumstances of this case, the decree of the Circuit court was right and should therefore be affirmed.

Decree affirmed.  