
    *Pollard v. Coleman and Wife.
    [April, 1799.]
    Sale of Land — Absent Defendant — Suit to Confirm and Recover Purchase Money. — if A. and B. bold a tract of land in common, and A. sells it to C. and removes ont of the state, B. may bring a suit in chancery against C. and A. as an absent defendant, to confirm the sale, and obtain a decree for his part of the purchase money.
    Same — Same—Suit to Rescind. — And, if in such case, C. had brought a suit against A. and B. to rescind the sale, and failed, but was permitted to retain part of the purchase money, until B.’s title should be tried by a jury; the latter will be entitled to avail herself of the proceedings in that canse.
    Parish Coleman, and Catharine, (formerly Catharine Rogers,) his wife, filed their bill in the high court of chancery against John Rogers and Thomas Pollard, stating, that "William Rogers, the father of the plaintiff Catharine, devised his lands, consisting of 645 acres, to his two sons, John and parkin, and his slaves and personal estate among all his children ; but directed that, if either of his children should die before twenty-one years of age, the part of the one so dying should be equally divided among the surviving children of the testator. That the said Larkin Rogers died under age, and without issue, in April or May 1779; but that three of the slaves had been allotted to him in the month of March preceding. That the plaintiff Catharine was, in the event which had happened, entitled by the devise aforesaid, to one-sixth of the said Larkin’s moiety of the lands and of the said three slaves ; but the said John Rogers, claiming the said moiety and the said three slaves as eldest brother and heir at law to the said Larkin Rogers, had removed the slaves to Kentucky, where he now resides, and had sold the whole 645 acres of land to the said Thomas Pollard for ^1200; and that the plaintiffs are willing to confirm the sale, and receive their proportion of the money instead of the land; and, for that purpose, had, after the plaintiff Catharine came of age, tendered a deed of release to Pollard, and requested him to pay them y¿100 out of the ¿200 retained in his hands under the decree of the court of appeals in the preceding case of Pollard v. Rogers *and others, until the title of the plaintiff Catharine should be assured to him. That Pollard refused to accept the deed, and payment. The bill therefore prayed, that John Rogers might be decreed to pay, to the plaintiffs, the ¿100 aforesaid with interest, and to deliver them a sixth of the said three slaves and their increase. That Pollard mighr be restrained from paying away or secreting the debts and effects of Rogers until the further order of the court, and that the plaintiff might have general relief.
    The answer of Pollard admitting the sale of the land; the tender, by the complainants, of the release, more than six months after the plaintiff Catharine came of age ; and his refusal to pay the ^100, insists, that the issue prescribed by the court of appeals ought to he directed; and, if found for the plaintiff Catharine that her sixth of Larkin Rogers’s moiety of the land should be assigned her, and another issue directed to ascertain the damages of the defendant in consequence of the eviction of, that share of the land.
    This.answer is replied to; and a copy of the record in the former suit filed, as an exhibit.
    There was an order of publication, against John Rogers as an absent defendant, duly executed.
    The high court of chancery decreed that, upon the complainant’s executing a release of the plaintiff Catharine’s proportion of the land, and the plaintiff Parish Coleman entering into bond with security in the penalty of ;£200, conditioned to he void, if upon trial of the issue directed by the decree of the court of appeals, the plaintiff Cath-arine should appear not to be entitled to any part of the lands sold, the defendant Thomas Pollard should pay to the plaintiffs ^100, with interest from the time when he was bound by the judgment to have paid that sum to the defendant John Rogers ; and, upon such payment being made, that the injunction should be perpetual as to , the said ^"100 with interest; and that the defendants should pay costs.
    Pollard appealed, from,the decree, to the court of appeals.
    ^The appellant’s counsel contended, that it was not competent to Coleman and his wife to substitute themselves in the room of Rogers, and to insist upon the completion of the, contract for their own benefit, although he might choose to abandon it, or submit to the issue. That it might be inconvenient to Pollard, as he might have a discount or equity against Rogers, which he could not apply against the appel-lees. That the bond prescribed was contrary to the decree of the court of appeals, which had directed a similar one to be delivered up. That the appellees had a remedy at law, as they might bring their action and recover their proportion of the land; which was the correct course, as it would leave Pollard and Rogers to settle their own contract. That Pollard ought not to pay costs for not compounding Rogers’s debt; for the latter might not agree to the composition, as he had never authorized it. That this was not like a foreign attachment against an absent defendant; because the appellees had no pecuniary demand against Rogers, but only desired to participate in his contract.
    • Duval, for the appellee.
    It does not appear that Pollard has any discount against Rogers; and, if he gets the title of Catha-rine, it is all that is important to him, for his possession has never been disturbed, nor has h'e'sustained any other inconvenience, which makes it necessary, as to him, to try the issue: the title is all that he, in conscience, has a right1 to; and-, it -'is-immaterial whether he obtains it by the voluntary act''of the appellees, or by the procurement of Rogers. The appellees are' not, as represented by the appellant’s counsel, intruders into the contract of Rogers ; for the suit is in nature 'of a ' foreign attachment, -ánd seeks to arrest the' money which he will owe to the appellees, when the release is executed^' This answers the objection respecting the bond; for although the decree does not say) expressly, to whom that' is to bé made payable, it is obvious that John Rogers was meant; and therefore, it is nothing more than the bond which the law requires, in suits against '^absent defendants.' The costs perhaps ought to have been directed to be paid 1 out of the residue of the .£200; but the omission is of no consequence, as Pollard will have a right to retain them.
    Cúr. adv. 'vult.
   LYONS, Judge,

delivered the resolution of the court; ‘

The objection that 'the appellees1 cannot intrude themselves- into the contract óf Rogers, and insist upon the performance of it, is immaterial. Por the contract is already confirmed by the' decree • in the former.'suit; 'and, as Pollard made Mrs. Coleman a patty to that suit, and Rogers has left thé state, she has a right to avail herself of the benefit of those ' proceedings in the best manner she can : and it is not perceived that Pollard can sustain any injury from the course pursued; for the release of the plaintiffs will complete his title to the whole of the land; and it must be unimportant to him who gets the money, provided he is discharged. Por this court did not intend, by the decree in the former suit, that there should be an issue directed at all events, if the plaintiff Catharine did not release within six months after she came of age, should circumstances render it proper to dispense with it. The decree, as to that, meant to provide for the safety of Pollard, in case Catharine should appear to be entitled, and refuse to convey: in which event a jury was to ascertain the loss incurred by his having that part of the land taken from him. But, if instead of taking away the land, she conveys it without any addition to the price, his- safety is completely attained; and there is no occasion for the issue, so far as respects Pollard. Besides the release offered is, in substance, a compliance with the decree; for the six months term was a limit which a court of equity would have relieved against, as Pollard was in possession, and could sustain no injury by the delay.

With regard to Rogers, the suit is against him' as an absent defendant. The bill charges that Larkin Rogers died under age; and, in consequence thereof, that the plaintiff ^Catharine has become entitled to a sixth part of his moiety of the land; but that she is willing to confirm the sale, and to take her. proportion of the purchase money. The defendant Rogers has not' answered the bill; and therefore it must, as to him, be taken to be true. But, if so, there is no reason why the plaintiffs should not be permitted to ratify the sale, and take their share of the purchase money. Por the election can do no prejudice to any body: not to Pollard, because he gets the land he bought: not to Rogers, because he is not entitled to this part of the money, and gets all the rest, without the risque of damages and costs, in consequence of eviction. So that, as to him, it 'is like the sale of a chattel by the finder; in which case, the true owner may either pursue the chattel, or bring indebi-tatus assumpsit against the vendor for the price. In short, Pollard, Upon obtaining the release, will owe the money; and as Rogers, were he to receive it, would owe it to the plaintiffs, the latter have a right to be substituted for him, and to demand it of Pollard.

As to the bond, the answer given by the appellee’s counsel is satisfactory. It was intended to indemnify Rogérs, and not Pollard, -who would be indemnified by the decree.

The order that both defendants shall pay the costs, does not injure the appellant; for there will be a surplus of the ¿200, out of which he may retain them.

The decree is therefore affirmed.  