
    *Mott v. Carter’s Adm’r.
    March Term, 1875,
    Richmond.
    1. Contract for Sale of Land—Confederate Money.—A Confederate contract for the sale and purchase of land in May 1863 upon a credit of one, two and three years, in which it was held that the value of the land at the time of the contract was the most just measure of recovery; and one-third of the purchase money having been i>aid. the vendee must pay two-thirds of the value of the land at the time of the sale, with interest.
    2. Suit by Administrator—Heirs as Parties.—Bill by the administrator of the vendor against the vendee, to subject the land to pay the balance.of the purchase money. Vendee answers, and insists that the heirs of the vendor should be made parties; but the court below, without requiring this to be done, makes a decree for the sale of the land. Opon appeal this court amends the decree, and directs that the heirs shall be made parties before a sale of the land, and then affirms it .with costs to the appellee.
    In May 1863 ffm. S. Carter sold to Charles D. Mott a tract of land in the county of Pittsylvania, including one hundred and thirty-four acres, for which Mott executed to him his three bonds, dated the 25th. of May 1863, each for $700, payable in one, two and three years, in current money of Virginia. Mott was put into possession of the land, and paid off the first bond within the year. No deed seems to have been made by Carter to Mott conveying the land to Mott, Wm. S. Carter died in 1870, and Robert W. Carter qualified as his administrator; and in April 1872 he filed his bill in the Circuit court of Pittsylvania county, against Mott, to subject the land for the payment of the unpaid purchase money. He insisted that though it may have been a contract with reference to Confederate ^States treasury notes as the standard of value, the land was at the time of the sale worth from four to five dollars in gold or its equivalent, and would at any, time since the sale have sold for more than that, upon reasonable time. And therefore he insisted that the fair value of the land was the just measure of recovery.
    Mott answered the bill, admitting his paxchase of the tract of land, which he said contained one hundred and thirty-three or four acres, at the price of $21 in Confederate money, and payable as above stated. He says he is informed and believes, and therefore charges that at the time of the sale by fm. S. Carter to him, he had no title tp said land, and he calls for proof on that subject. And he insists that the land shall not be sold without making the heirs of the intestate parties to the suit. He denies that at the time of the sale the land was worth four or five dollars in gold or silver, or that upon reasonable time it would have sold for more at any period since said purchase. And he protests strongly against the claim to the value of the land as the just measure of compensation, instead of the value of the Confederate money when it fell .due.
    A number of witnesses were examined as to the value of the land at the time of the sale, and the lowest valuation was three dollars per acre, and the highest was six; though this was as to its present value, which it was thought was enhanced by the running of the railroad from I/ynchbttrg to Danville, within a mile or two from it.
    The cause came on to be heard on the 6th of June 1872, when the court held that the contract for the sale of the land was a. Confederate contract; but that the true and fair value of the land was the most just measure of recovery for the balance of the purchase. money, the defendant having paid one-third thereof. And *being of opinion from the testimony, that the land was worth five dollars per acre, decreed that the defendant C. D. Mott might at his election discharge the other two bonds for the second and last payments, at the rate of five dollars per acre; and that unless he should in writing, to be filed with the clerk of the court within thirty days from the date of the decree, elect to take the land on these terms, by paying the plaintiff in cash, or on such terms as he and the plaintiff might agree on, the amount ascertained as due upon the basis above established, that Robert W. Carter, who was appointed a commissioner for the purpose, should after advertising, &c., sell the said land at public auction on the terms of one-third of the purchase money for cash, one-third in twelve months, and the residue in two years, &c. And thereupon Mott applied to this court for an appeal from the decree; which was allowed.
    Grattan, for the appellant.
    Jones & Bouldin and Wm. M. Tredway Jr., for the appellee.
    
      
      Heirs as Parties.—In Taylor v. Spindle, 2 Gratt. 45, it was held that in a suit by a Judgment creditor to subj eel lands in the hands of a bona .Me purchaser from the vendor, if pending the suit the purchaser dies, his heirs are necessary parties. See Gallatin Land Co. v. Davis, 44 W. Va. 115, 38 S. E. Rep. 749.
    
   Staples, J.

delivered the opinion of the court.

The court is of opinion that the contract betweén William B. Carter and the appellant Charles D. Mott, for the sale of the land in the bill mentioned, was entered into with reference to Confederate treasury notes as a standard of value; and that the fair value of said land at the date of the contract furnishes the most just measure of recovery in this casé.

The court is further of opinion that the Circuit court did not err in fixing said value at five dollars per acre. The Circuit court, however, instead of leaving *the amount of plaintiff’s recovery to be settled by the parties, ought to have determined the same itself, or through the agency of one of its commissioners. That amount is easily ascertained by a simple calculation. The tract being estimated at five dollars per acre, the sum total of the purchase money would be six hundred and seventy dollars. The vendeé having paid a sum equal to one-third, there is still due the sum of four hundred and forty-six dollars and two-thirds cents, to which the plaintiff is entitled, with interest thereon from the 1st day of January 1863.

The court is further of opinion that in a suit by the personal representative of the vendor against the vendee, to enforce the lien for unpaid purchase money, if the legal title has not been made, the heirs of the vendor ought to be made parties before a decree is rendered for the sale of the property. In this case it does not appear that a conveyance has been made to the vendee. In his answer the objection was explicitly made for the .want of proper parties; but the' objection was disregarded. In thus proceeding to direct a sale of the land before the heirs of the vendor were brought before the court, the Circuit court erred. Inasmuch, however, as only the naked legal title is outstanding in said heirs, and there is no pretense of any obstacle or difficulty in obtaining said title, the decree of the Circuit court may be so amended as to require that said heirs by some proper proceeding shall be brought before the court before any sale is made under said decree. As thus amended the decree is affirmed, with costs to the appellee, he being the party substantially-prevailing in all the matters of controversy-before this court.

Decree amended and affirmed.  