
    Stovall v. London.
    Decided, Dec. 14th, 1816.
    1. Specific Performance — Agreement for Exchange of Land — Reference to Commissioner. — Under what circumstances, in a suit in Equity for specific performance of an agreement for an exchange of lands, the Court may decree according to the prayer of the Bill, without a reference to a Commissioner of the plaintiff’s title, though objected to by the defendant in his answer.
    2. Same — Same—Case at Bar. — The most important circumstances in this case appear to have been that the title by which the lands of each party were held, was set forth in the written agreement; and that the defendant, after filing his answer, received a sum of money agreed to be paid for the difference in value between the tracts to be exchanged.
    Articles of agreement were entered into, on the 11th of September, 1809, between John Eondon and George J. Stovall, to the following effect: viz.; Eondon agreed to convey to Stovall, with general warranty, a Tract of Eand “in the State of Tennessee and County of Robertson, known and distinguished by the name of Turnbull’s Horse Stump, the same being one entire pre-emption, or 640 acres of Eand, -formerly belonging to Andrew Hart, and which the said London and his brother James bought of Susanna, Executrix of said Andrew Hart deceased.” And Stovall on his part agreed to convey to Eondon all his land ‘ ‘lying in the County of Campbell on the waters of Rock Island Creek whereon his mother Elizabeth Stovall then resided, and all other land he had purchased or might thereafter purchase adjoining the first mentioned Tract, which said Tract was willed him by his father. ” In consequence of this “exchange and conveyance in law,” the parties agreed to submit each, of the said tracts of-land, “as soon as convenient, at farthest on or before the 1st day of May, 1810,” to valuation, by each person choosing his own valuer, and, in case they disagreed, for them to choose a third man, whose Judgment shoul.d be final. In case Stovall’s land should be valued higher than London’s, the latter was to pay the former four hundred dollars “next September, if that sum should be due,” and, if more, the balance to be paid in two annual payments, unless Stovall would take negroes at valuation. Stovall agreed, 1 ‘to let the said Eondon seed the land, or any part he might choose, after the usual time of seeding takes place, next Fall, and to convey with general warranty the said Tract of Land to Eondon, on or before the first day of September next.” As Elizabeth Stovall had her life estate in part of the said Land, if she gave it up to Stovall, it was to be valued clear of incumbrance; if not, the valuation was to be made as subject thereto. He was to hold peaceable possession until the 1st day of November, 1810; and one hundred dollars of the said four hundred were to be paid by the 15th of October, ensuing the date of the contract: which sum was received by .Stovall, December 28th, 1809. A change, in part, of this agreement was made by the parties on the 15th of May, 1810; by which, the subject of negroes was left out of the contract, and Stovall’s land was to be valued subject to the incumbrance of Elizabeth Stovall’s life estate. On the same day, referees mutually chosen made the valuation of that tract, and awarded that London should pay for it after the rate of four dollars and five eighths of a dollar per acre; and that Stovall should pay him for the incumbrance twenty pounds per annum so long as the same should continue.
    On the 14th of August, 1810, London gave Stovall a written notice that, at the ensuing Amherst Court, he would make .him at Deed for the Land in Tennessee ; that, on the 1st of September, he would pay into the hands of George Cabell (who held the agreement on their behalf) the sum of three hundred dollars for him, as he, the said Stovall, refused to comply with that agreement; that he (London) expected to seed the plantation in wheat agreeably thereto, and was ready to proceed to the valuation of the said 640 acres of land at any time Stovall would notify him. Accordingly, on the 17th of August, 1810, a Deed of Bargain and Sale was executed by London and his Wife, conveying, with general warranty, to Stovall and his heirs, the Land in the State of Tennessee; describing it as “a Tract of Land lying in the County of Robertson, in that State, on the North side of Sycamore Creek, adjoining a survey of Robert Weakly’s, known by the name of the Horse Stump, and bounded as follows,” &c. (setting out the courses and distances,) “containing six hundred and forty acres of land:” which Deed was acknowledged by London before the County Court of Amherst, and ordered, to be certified, together with the privy examination and relinquishment of London’s wife, to the County of Robertson, in Tennessee, to be there recorded : but Stovall refused to accept it, when tendered by George Cabell in behalf of London, for his acceptance; “though he made no objection at that time to its legality.” On *the 1st of September, 1810, London put the sum of three hundred dollars into George Cabell’s hands to be paid to Stovall, whenever he would receive it; which, however, he for some time would not receive, though repeatedly offered him.
    In March, 1811, London filed a Bill in the Superior Court of Chancery for the Richmond District, stating the circumstances, and praying a Decree for specific performance; alleging that he had done all that, on his part, he was bound to do. In April following Stovall filed his Answer, in which he said “that he would at all times have been ready and willing to comply with the Agreement, if the complainant had been equally ready on his part; but the Complainant had wholly failed to have the valuation of the Tennessee Lands effected, as he was bound to do by his agreement, although formally called on by the defendant for that purpose: he had also failed to exhibit to this defendant his title papers, or any evidence that he had possession or title to the Land in Tennessee, and had not enabled this defendant to trace his title, and ascertain whether it was valid or not.” On this ground he insisted on being discharged from the agreement in question. He also objected to the Conveyance, (a copy whereof was annexed to the Bill,) as being defective, in not conveying the right of dower of the Comp’ain-ant’s Wife according to the laws of Tennessee, andas not containing any reference to the Complainant’s title, or to any original Survey made by lawful authority. With regard to the money in the hands of George Cabell, the defendant conceived that, under the circumstances above staled he was not bound to receive it.
    On the part of the Complainant it was proved by the deposition of the Witness who served the notice of August 14th, 1810, that Stovall then refused to appoint a time to proceed to the valuation of the Land in Tennessee, saying he could not fix upon any particular time to go; but made no objection, that the Witness recollected, to London’s title. The valuation of the Land in Campbell was proved by one of the Referees and by their Award in writing. It was also proved that, on the 17th of May 1811, after filing his Answer, the defendant received the three hundred dollars of George Cabell, and gave his receipt for it “on account of a land trade between John London and himself.”
    ''No motion was made by Stovall to refer the title of London to a Commissioner for examination; and no testimony was exhibited on his part. Two Copies of Deeds attested by John Hutche-son Register of Robertson County, were inserted in the transcript of the Record; though not mentioned in the Bill or Answers; one of which Deeds was from James London, and the other from Susannah Hart, to John London, for 320 acres each; and, in both, the Land conveyed was described as “lying in the County of Robertson, and State of Tennessee, on the North side of Sycamore Creek adjoining a Survey of Robert Weakly’s, known by the name of the Horse stump;” and also by courses and distances.
    Chancellor Taylor, “being of opinion that, as the. plaintiff has fully performed the agreements in the Bill mentioned, on his part, except so far as he was prevented by the defendant, the defendant ought on his part to perform the same agreements,” therefore decreed, “that he execute a Deed, with general warranty, to ensure an estate of inheritance in the Lands sold by him to the plaintiff, subject to Elizabeth Stovall’s life estate in part thereof; and that the said defendant deliver the said Deed, with the possession of the said lands, to the plaintiff, and account for the profits thereof, since the first day of November 1810, before a Commissioner of the Court, who is to state and report the same, with such matters as he may deem pertinent, or which eilher party may require. And being farther of opinion that, until there is a valuation of the Lands sold by the said defendant to the ifiaintiff in the State of Tennessee, the annual allowance of twenty pounds on account of the life estate as aforesaid should not be decreed át this time,” he farther adjudged, ordered and decreed that, “unless the said defendant shall, forthwith after being served with a copy of this Decree, proceed, in conformity with his agreement of the 11th of September 1809, to appoint a valuer of the said Lands in Tennessee described in that agreement, Robert Weakly, and such other persons as the said plaintiff shall name, shall be and they are hereb3 appointed for that purpose ; and, in case of their disagreement, they are to choose a third person; and they are required to report their proceedings to this Court in order to a final Decree.”
    *Erom this Decree the defendant prayed an Appeal, which the Chancellor allowed.
    Wickham for the Appellant. I do not contend that the Bill ought to be dismissed in the first instance: but the title of London to the Land in Tennessee should be referred to a Commissioner for investigation, 
    
    As he comes into a Court of. Equity for specific performance, he is bound to shew that he has made, or can make a good title. The title .ought to be free from suspicion ; for a purchaser is not bound to take a defective title, and no man is obliged to buy a law suit.
    The Contract was that he should convey the Land by Deed with general warranty. ■ And, since a Deed by a person not in possession does not operate as a Conveyance, it was incumbent upon him to prove that he was in possession of the land. Besides, the description in the Conveyance must correspond with the specific Tract of Land agreed to be conveyed; which is not the case in the present instance. The proofs of title exhibited are also very defective. No Grant is shewn for the Land; no title whatever in Andrew Hart; nor is there any proof of the right of his Executrix to convey. James London’s title to the 320 acres bought of him is not shewn: there is no subscribing Witness to the Deed from him; and neither of the Deeds is property authenticated.
    With respect to the Deed from the plaintiff himself; the privy examination of his Wife ought to have been taken upon a Commission from the State of Tennessee, where the Land lies; not from Amherst County Court in Virginia.
    The Chancellor should have examined the title and taken notice of these defects, even without a reference to a Master. He erred also, in appointing persons to value the Land. Stovall, on his part, was not bound to proceed to appoint a Valuer until the title papers were shewn him.
    Munford contra. The plaintiff was not bound to shew his title, it being admitted by the agreement, or acquiesced in by the defendant, who received the money lodged With George Cabell for him, though he raised a dispute at first. By doing so, he waived the objections he had taken to the title. The ^peculiar terms of this Contract are worthy of notice. The title, by which each party held his Land, to be exchanged for the Land of the other party, is specially set forth; shewing an agreement to part with one title for the other, such as they were. An Exchange of Lands differs in this respect from other purchases. The defendant has not shewn,, and was not bound to shew, his own title to the Land, which he was to convey; and) has no right to call for proof from the plaintiff of his title to the land conveyed by him.
    A reasonable performance on our part is all that can be expected. The defendant failed to appoint persons to value the Tennessee Land. He did not demand of the plaintiff the production of his title papers, until after the suit was brought. And no objection was made in the Court of Chancery, to the authentication of our title papers, nor to their sufficiency. He must have been acquainted with the title, and with the value of the plaintiff’s Land; else why did he receive the money?
    A reference of the title to a Commissioner-is not to be made without consent of the purchaser; for he may buy a defective title if he chooses. In this case Stovall did not move the Chanellor to direct a reference,  and it is too late to make such motion in the Court of Appeals.
    The relinquishment by London’s wife was regularly made by a Commission from Amherst Court. This Court has no-jurisdiction over the Lands in Tennessee. The Decree operates in personam not in rem. But even if the title of the Wife were outstanding, a ’ Deed from London himself, with general warranty, is sufficient to satisfy the terms of the agreement.
    Wickham in reply.
    Stovall is bound to specific performance by his accepting part performance from London. But he is not bound to accept partem pro toto. He did not receive the money as full satisfaction. I admit he is bound to return it with Interest, if a good title be not made.
    The description of each Tract in the agreement was not a description by both parties as to each, but only by the party undertaking to convey. The other party was not to be supposed conusant of any title but his own. The very circumstance that the Lands were to be valued shewed that Stovall knew nothing of the Tract in Tennessee.
    A conveyance, according to the laws of Virginia, is not good, where the Contract is to be carried into effect in another county. In such case the law of that country is- to prevail.
    
      
      See monographic note on "Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.
    
    
      
       Sugden, 155; Beverley v. Lawson’s heirs, 3 Munf. 317.
    
    
      
       Sugden, 210.
    
    
      
      Sugden, 155.
    
    
      
      Loans — Five Years Possession by Loanee — Effect between Parties. — Although, under Code 1873, ch. 114, § 3, a loan may be void as to creditors because not declared in writing and recorded, it is, nevertheless, valid and suiucient between the parties no matter how long the possession may have continued with the loanee. Scott v. Jones, 76 Va. 237, citing principal case as authority.
      See further, monographic note on “Fraudulent and Voluntary Conveyances” appended to Cochran v, Paris, 11 Gratt. 848.
      The principal case is also cited in Pate v. Baker, 8 Leigh 88; Dabney v. Kennedy, 7 Gratt. 327.
    
   December 14th, 1816, the President pronounced the Court’s opinion, . that there was no error in the Decree, which therefore was affirmed.  