
    King v. Hanson, et e Contra.
    [July, 1790.]
    British Subject — Property of — Sale during Revolution —Escheats.—Where the property of a British subject was sold during the revolutionary war, by his attorneys in this country, without deed, before the act of October session 1779, relative to escheats of British property; the sale was valid, notwithstanding- the purchase money was not paid, and an escheat had been taken after the sale, but before the passing of the act.
    Same — Same—Same—Payment of Purchase Money.— And the deposit of the purchase money, by the debtor, in the public treasury, was no discharge of the debt: But he was decreed, after the war. to pay the debt with interest, to the British subject; and, upon payment, the latter was ordered to convey the estate to the purchaser.
    Same — Same—Same—Same.-- But, in default of such payment, the estate was decreed to be sold, to satisfy the debt.
    Agency — Effect of War. — To the point that war does not revoke an agency established before the war, see the principal case cited in Manhattan Life Ins. Co. v. warwick, 20 Gratt. (537.
    Same — Same—Limited Agency — Agency to Collect and Preserve Property.-J Ami ted agencies in the enemy’s country may lawfully continue, provided they can be and are exercised without intercourse or communication between the citizens or subjects of the contending powers; such as agencies to collect and preserve, but not to transmit money or property. Such agencies, however, to be lawful, must be created before the war begins, for It Is said there is no power to appoint any agent for any purpose after hostilities have actually commenced. Small v. Lumpkin, 38 Gratt. 833: Hale v. wall, 32 Gratt. 434; Manhattan Life Ins. Co. v. warwick, 20 Gratt. 614; Mutual, etc., Life Ins. Co. v. Atwood, 24 Gratt. 497.
    See 1 Am. & Eng. Enc. Law (2d Ed.) 1228; mono-graphic note on “Agencies” appended to Silliman v. Fredericksburg, etc., R. R. Co., 27 Gratt. 119, and monographic note on “Insurance, Life and Accident” appended to McLean v. Piedmont, etc., Life Ins. Co., 29 Gratt. 361.
    Vendor’s Lien. — A vendor of land, not having conveyed the same, or taken a security for the purchase money, has a lien upon the land for the satisfaction thereof. Colev. Scott, 2 Wash. 142, citing the principal case.
    See Va. Code, 1887, sec. 2474; W. Va. Code, ch. 75, sec. 1.
    On the 4th of July, 1776, independence was declared; and, in consequence thereof, all natives of Great Britain, refusing to take the oath of fidelity, to the commonwealth, were obliged to leave the state.
    By an act of assembly passed at the October session 1777, chap. 9, the property of British subjects was sequestered; and debtors to British subjects were allowed to pay the money “into the loan office, taking thereout a certificate for the *same in the name of the creditor, with an endorsement, under the hand of the commissioner of the said office expressing the name of the payer, and shall deliver such certificate to the governour and council, whose receipt shall discharge him from so much of the said debt..” Ch. Rev. 64, 65.
    By an act of the. May session 1779, “concerning escheats and forfeitures from British subjects,” all the property, real and,. personal of any British subject, “at the time such escheat or forfeiture may have taken place, shall be deemed to be vested in the commonwealth:” and the governour and council were directed to institute proceedings of escheat and forfeiture for all such propertythe inquisitions to remain in the general court for one month; and, if, within that time, no claim was made for the property, or being made, should be found for' th.e commonwealth, “the title of the owner shall be barred, but may be afterwards asserted as to the money proceeding from the sale:” which was to be for ready money, and to entitle the purchaser to grant of the lands sold, “free and fully exonerated from all the rights, title, claim and interest, legal and equitable of any British subject thereto.” Ch. Rev. 98, 99.’
    By an act of the October session 1779, ch. 18, the mode, of proceeding, upon traverses and monstrans de droit to inquisitions of escheat upon the property of British subjects, was prescribed: and’it was enacted that 1 ‘all actual and bona fide sales made by British subjects of their estates, by deed duly executed1 and ' recorded, before the passing of the said recited act, shall be, and they are hereby confirmed.”' — “And that whenever the mortgages of any estate shall be found to come within the purview of this act, as British subjects, and the mortgaged premises are included within the inquisition ; or where any citizen or citizens of this state may have an equitable interest in any estate as to which an inquisition hath been found for the commonwealth, any one judge of the high court of chancery may award an injunction to stay the sale of such estate, unless the contract *shall have been made since the passing of the before recited act, of which the escheator or sheriff shall take notice, until the said equitable claim shall be determined.” Ch. Rev. 110, 111.
    By an act of the May session 1782, ch. 47, all persons who had obtained injunctions to stay the sale of escheated property, or had filed a plea of monstrans de droit, or traverse, were to “be considered as plaintiffs proceeding against the commonwealth, in which the proof shall lie upon them:” and the court of chancery, or general court, as the case may be, shall, at their second session after any injunction obtained, or plea of monstrans de droit, or traverse, filed, proceed to hear, try and determine the same, unless good cause for a continuance be shewn to the court, otherwise, every such injunction shall be considered as dissolved, or plea of monstrans de droit, or traverse set aside. And that so much of the act for sequestering British debts as authorizes the payment thereof, be, and it is hereby revived and put in full force.” Ch. Rev. 166; Hen. Stat. vol. 11, pp. 81, 82.
    By the act of October session 1784, ch. 14, after reciting the 6th article of the treaty of peace, between the United States and Great Britain, it is enacted, “That no future confiscations shall be made, any law to the contrary notwithstanding. Provided, that this act shall not extend to any suit depending in any court, which commenced prior to the ratification of the treaty of peace. ,11 Hen. Stat. 446.
    By the act of October session 1787, ch. 34, all acts preventing the recovery of British debts were repealed; but its operation was suspended, .until'the■ governour and council should notify, to the state, that the posts occupied , by the British troops were given up. 12 ,Hen. Stat. 528. And by another act of the same session, ch. 34, it was declared that the state should, in no event, be liable for more than the value, according to the scale of depreciation, of monies which had been paid into the treasury, under the act sequestering British property; and that no question respecting any *such sum, should be brought before any court, during the suspension of the last mentioned act. 12 Hen. Stat. 529, 530.
    Richard Hanson, a native of England, came to Petersburg in Virginia, several years before the revolution, and’ acquired a lot and. houses in that town. After the declaration of independence, he refused to take the oath of fidelity to the commonwealth, and professing himself to be a British subject, returned to England; having previously empowered Roger Atkinson and Richard Taylor to sell his houses and lot, if a thousand pounds sterling, in good bills of exchange, could be obtained for them. In 1778, Atkinson and Taylor, without any deed, sold the lot and houses, to John King, a citizen of Virginia, for a thousand pounds sterling, payable on demand: And, on the 8th of September, 1779, an inquisition of escheat was taken of .the said lot and houses, which found Hanson to be a British subject; but that King had purchased the premises as aforesaid. The inquisition was sent to the general court office; where King filed a monstrans de droit, and traverse thereto, but the same were never decided on by that court. King frequently offered payment of the purchase money to Atkinson and Taylor; who declining to accept it, he deposited the same in the loan office, as a debt due, from him, to a British subject. On the 17th of December, 1779, King obtained an injunction from a judge of the high court of chancery, against Kennon Jones the escheator, Edmund Randolph the attorney general, Hanson, Taylor and Atkinson, to prevent a sale of the property under the escheat, and for a conveyance of the lot and houses.
    The bill set forth, That Hanson, on the 31st of July, 1776, being about to leave this country, appointed Atkinson and Taylor his attornies in fact, with authority to sell the said lot and houses. That, on the 28th of April, 1778, and before any law of escheat had been enacted, the plaintiff purchased the said lot and houses from the said Atkinson and Taylor for the sum of ^jlOOO, sterling, to be paid when the same should be demanded of him; immediately *took possession of the premises; and made valuable improvements thereon. That Atkinson and Taylor having frequently declined to receive the purchase money in paper currency, he deposited it in the treasury. But notwithstanding all this, Kennon Jones, the escheator, had taken an inquisition of escheat, stating that the said lot and houses belonged to a British subject; which he had returned into the office of the general court, although he and the jury knew, that the plaintiff had purchased the property. That the attorney general threatened to have the lot and houses sold, notwithstanding the act of assembly protecting the interests of citizens in estates found, by inquisitions of escheat, to be British property. The bill therefore prayed for an injunction against the sale, and for a conveyance from Hanson.
    The answer of the attorney general set forth, that he could neither assent to, or deny, the allegations of the bill, to which he was a stranger; and therefore submitted the propriety of continuing the injunction, to the court, upon the complainant’s own bill and proofs; but praying for a dissolution, with costs.
    The answer of the escheator was to the same effect, with that of the attorney general : And that of Atkinson and Taylor admitted the power of attorney to sell; the sale on the --day of April, 1778, to John King; and frequent tenders, by him, of the purchase money; but stated, that they had declined to receive it, as they had no authority to convey, and ■ doubted, whether they could negotiate a remittance, of it, to the satisfaction of Hanson.
    In April 1780, there was an order of publication against Hanson.
    King died in 1785; and the suit was revived in the names of John Starke King his infant son, and Seth Foster and Anne his wife, who was the widow and executrix of his will.
    Hanson, who had during all the war remained in England, came back, after the treaty of peace, to this country: and, in April 1786, filed his answer, admitting the power to Atkinson and Taylor to sell the lot and houses; and the sale ^thereof to John King; and declaring himself ready to convey, upon receiving the purchase money, with interest.
    On the 5th of May, 1786, Hanson filed a cross bill against John Starke King, and. Foster and wife, setting forth, in like manner, the power to Atkinson and Taylor to sell, and their sale of the lot and houses, to John King. That he had frequently demanded payment of the ^1000 sterling with interest in good bills of exchange, or that the lots and improvements might be returned to him, with an account of the rents and profits. And therefore the bill prayed for a decree to that effect.
    The answer of John Starke King is in the usual form. But that of Foster and wife, admitting the purchase by John King, says that he offered to pay the purchase money in currency to Atkinson and Taylor; and, upon their refusing to accept it, he deposited the, same in the treasury; which, with the tender aforesaid, they insist is a discharge of the debt, and pray a conveyance of the lot and houses.
    The depositions prove the power to Atkinson and .Taylor; their sale of the lot and houses to John King; his offers to pay the purchase money in currency: and the deposit thereof in the treasury.
    The exhibits were, 1. The power to Atkinson and Taylor to sell, in the following words, ‘ ‘This is to request of you to dispose of my houses and lots, when an opportunity offers; but not to take less than one thousand pounds sterling, in bills of exchange, with security: and, the purchaser should want some time for payment, you may take it at three yearly payments, on the purchaser’s allowing interest; but, on no consideration, to sell it for current money at any price; and until an opportunity offers for selling it, I would have it rented, &c. — 1 and I do oblige myself to make the purchaser a good and sufficient title, at any time, to their satisfaction.” 2. A certificate from Atkinson and Taylor, dated the 13th of December, 1789, of the sale: which they say “was made in the month of April 1778,” under the power of attorney of the 31st of July, 1776: that John *King had made very considerable repairs and improvements on the lots, which they believed “he would not have done, had he not thought his right in the said lots and houses was good:” that he had “frequently informed the money was ready;” that they wrote Hanson apprizing him that they had made the sale, ‘ ‘and recommended it to him, to get a power for making the said King a good right to the lots, &c. made out either in France or Holland, otherwise it would not be good; and declined receiving th.e money for the sale of the houses and lots until we heard from Richard Hanson.” 3. The inquisition of escheat, dated the 8th day of September, 1779, and stating that Hanson was a British subject, before the act of assembly declaring what shall be treason; that he “departed from this state aforesaid and joined the subjects of his Britannick majesty, of his own free will;” and that, at the time of his so becoming a British subject, he was seized, (within the meaning of the act of assembly, concerning escheats and forfeitures from British subjects,) of the said lot and houses in fee simple; which he authorized Atkinson and Taylor to sell; and that by virtue of the power, they did, on the 28th of April, 1778, sell the same to John King for ¿1000 sterling, “which said sum of one thousand pounds sterling secured to be paid by the said King to the said Hanson, the said jurors find is now due and owing.” But the security for payment of the purchase money to Hanson is not among the papers in the cause. 4. A copy of King’s mon-strans de droit, and plea of traverse; which states the sale to have been on the 8th day of April, 1778.
    November S, 1788. The high court of chancery made the following decree in the cause. “The court is of opinion, that no tender appears to have been made, to at-tornies of the said Richard Hanson, by the said John King, of the money due from him, which wrought an extinguishment of the interest: that the payment of money into the lo.an office made by the said John King did not discharge the said debt, or any part of it; nor is the said Richard Hanson obliged *to accept and discount the commissioner’s certificate of said payment; and that the said lo.t and appurtenances ought to remain as security for the said debt and interest. It is therefore decreed and ordered, that, upon payment to the said Richard Hanson, of one thousand three hundred and seventy-five pounds of current money of Virginia, equal in value to one thousand pounds sterling, and interest for the 'said principal, from the twenty-eighth day of April in the year of our Lord one thousand seven hundred and seventy-eight, and the costs of the said Richard Hanson in both these suits, iy the representatives of the said John ■Cing, or some of them, he, the said Richard Hanson, do convey the said lot and appurtenances to John'Starke King, son and devisee of the aforesaid John King, and to his heirs, at his costs; and that, in default of such payment, before the 1st day of May next, the said lot and appurtenances, within five weeks thence next following, be exposed to sale by Thomas Griffin Peachy, Robert Turnbull, and Charles Duncan, or any two of them, by way of auction, for ready money, after an advertisement of the time and place of such sale, published three weeks in the Gazette; and that so much of the money produced by the sale as is equal to the debt, interest and costs aforesaid, be paid to the said Richard Hanson, and the residue to the guardian of the said John Starke King: That if the sale does not amount to the said debt, interest and costs, the defendants Seth Poster and Anne his wife, do pay the amount of such deficiency, out of the assets of the said John King, in their hands to be administered, if so much they have: And that the injunction obtained by the said John King, and revived by his representatives, be perpetual.” Prom this decree, the defendants John Starke King and Seth Poster and wife, appealed to the court of appeals.
    Por the commonwealth, it was contended, that the escheat was not affected by the sale, 1. Because the sale was not agreeable to the power, which directed that it should be *made for bills of exchange, with security. 2. Because it was not under seal as the act of assembly required; and the clause relative to equitable interests would not help the case, for that related to interior interests, before the date of independence. 3. That the payment into the treasury dispensed with a sale under the inquisition, and completed the escheat before the end of the war.
   On the other hand, it was said on behalf of the representatives of King, that the sale was good, as Hanson had approved of it; and that the tender of the money to his attornies; and, upon their refusal to accept it, the deposit of the amount in the treasury, was a complete discharge of the debt, and entitled King’s estate to a conveyance.

Por Hanson it was argued, that the tender, and subsequent deposit of the money in the treasury was no discharge; and that the representatives of King should now be decreed to pay the purchase money, interest and costs, or restore the property to him, with the rents and profits.

Cur. adv. vult.

The court, after time taken to consider, made the following decree in the cause:

“This daj- came the parties by their counsel, and the court having maturely considered the transcript of the record, and the arguments of counsel on both sides, are of opinion, that the said decree is erroneous in this, that, in the event of the sale pf the lot with the appurtenances, by the commissioners, the said Richard Hanson is not directed to convey the estate to the purchaser in fee simple; and also, in this, that the said Hanson is allowed all his costs in both suits, whereas he ought to pay all costs upon the injunction bill, as well as the costs, in the general court, of the proceedings in the inquisition of escheat, the same being necessary to protect his interest. Therefore, it is decreed and ordered, that the said decree be reversed and ^annulled, and that the said Richard Hanson pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here. And it is further ordered, that the cause be returned to the said high court of chancery, for that court to correct the decree aforesaid, according to the foregoing opinion.”  