
    *Foreman v. Newkirk and Others.
    October, 1811.
    
      i. Sale of Land — Bond for Purchase Money — Equitable Relief against Assignee of Bond. — where the purchaser of land gives bonds for the purchase money, payable at different times; and the agreement is, that if the title to any part of the land prove defective, a deduction from the purchase money shall be made, in proportion to the value of the land lost; a Court of equity will not protect the purchaser, against an assignee of one of the bonds, on the ground of a defect in the title to part of the land; if it appear that the bonds not assigned, and remaining unsatisfied, are sufficient to indemnify him against such loss.
    From the bill, answers, and exhibits in this case, it appeared that Foreman (the plaintiff in equity) purchased of Andrew Bowman three tracts of land adjoining each other, comprehended in several patents; one for 100 acres, another for 129 acres, and a third for 16 acres; also a sawmill, with a lot of land, whereon it stood, containing more than two acres; the whole including 248 acres, more or less, for the sum of 1,8751., Pennsylvania currency, payable partly in property, at a certain valuation, and partly in money, by instalments, particularly stipulated in articles of agreement, dated December 15th, 1800; and that, in case the title to any part of the land should prove defective, a deduction from the purchase money was to be made, in proportion to the value of the land which should be lost. Sundry bonds were executed by Foreman for the money instal-ments; one of which (being for 3001.) was assigned by Bowman to George Newkirk, for a valuable consideration. The other six, for 1001. each, remained unsatisfied in the hands of Amos Nichols, administrator of said Bowman. A suit having been brought, and judgment obtained by New-kirk, on the bond assigned to him, the bill was filed by Foreman in the Superior Court of Chancery for the Staunton district, for an injunction to that judgment, on the ground that the title of the said Andrew Bowman to two of the tracts of land, (viz. that of 129 acres, and that of 16 acres,) was defective. Newkirk, in his answer, admitted that he had heard of some dispute as to the title, without knowing the merits of the claims; but contended, that if the plaintiff should lose the lands in dispute, yet the amount of the respondent’s judgment ought not to be withheld from him, “because those lands are not worth more than twenty shillings per acre; indeed, lands of the same quality adjoining thereto, could now *be purchased at that price;” the most valuable part of the lands purchased by the plaintiff as aforesaid being not in dispute, and that therefore the bonds of the plaintiff, remaining in the hands of the administrator, were sufficient to indemnify him. This allegation in the answer was, in substance, supported by testimony.
    The following opinion and decree were pronounced by Chancellor Brown, the 16th of April, 1808. “The plaintiff in this cause, having failed to set out in his bill the nature and extent of the deficiency complained of, so as to enable the defendant, who is an assignee, to rebut his equity; and having failed also to require a survey, account, or issue, by which the real damage might be ascertained, and a deduction made agreeably to the contract between the plaintiff and Andrew Bowman, a suspicion would naturally arise, that he was seeking to retain more of the purchase-money in his hands than he was equitably entitled to; and it appearing to the Court, from the exhibits, that, independent of the money enjoined, there is a sufficiencyin the hands of the plaintiff completely to indemnify him agreeably to his contract aforesaid; (and, indeed, his bill does not state the reverse;) and the said plaintiff having neglected to make the heirs of the said Bowman (in whom the legal title is) defendants, so as to enable the Court to decree against them, and therefore ought not "to complain on that ground, or seek to delay the plaintiff at law for that canse: it is therefore adjudged, ordered, and decreed that the injunction be dissolved.”
    At the next term, the complainant showing no cause to the contrary, the bill was dismissed; whereupon the plaintiff appealed to this Court.
   Monday, January 11th, 1813, the following opinion of this Court was delivered by

JUDGE ROANE.

“The Court, concurring with the Chancellor in opinion, that it appears from the exhibits in the cause, that, independently of the sum enjoined in this case, there is a ^sufficiency of money in the hands of the appellant to indemnify him, agreeably to the tenor of his contract, against any loss he may sustain in the land, in the proceedings mentioned, is of opinion, that there is no error in the said decree; therefore, it is decreed and ordered that the same, be affirmed.”  