
    *Ralston, &c. v. Miller, &c.
    November, 1824.
    Chancery Practice — Conveyance of Land — When Payment of Purchase Honey Enjoined.  — A Court of Equity will not interfere to prevent the payment of the purchase money of land, unless the title to the land is questioned by a suit either prosecuted or threatened, or unless the purchaser can show clearly that the title is defective.
    Boundaries — Evidence—Ancient Reputation — Experi - mental Survey. — Ancient reputation and possession, in respect to the boundaries of streets in a town, are entitled to more respect, in deciding’ upon the boundaries of the lots, than any experimental survey that may afterwards be made.
    Ralston and M’Nevin brought a suit in the Chancery Court of Richmond, against Miller, Hetherton, Taylor and lVPMurdo, setting forth the following case; — that the complainants, on the 29th of April, 1817, purchased of Miller, part of a certain lot of ground, on the South side of E or Main street, containing 39 feet 10 inches front on the said street: that the said property belonged to Hetherton; but he being an alien and‘not capable of taking a title to the same, it was held in the name of Miller as his friend, and by him sold to the complainants, for Hetherton s benefit: that by the deed which was executed, and the terms of sale (which was a public one, and to the highest bidder) 39 feet 10 inches of ground in front were sold, and a general warranty of title was stipulated: that the complainants purchased at the price of $7966 66 cents, and executed three notes of hand, negotiable at the Bank of Virginia, each for the sum of $2655 55 cents, payable at six, twelve, and eighteen months of credit, and all three notes dated the 29th day of April, 1817, and endorsed by Brotherhood: that a deed of trust was also executed on the same day by the complainants to Taylor and M’Murdo, to secure the payment of the said sums: that the two first notes were paid by the complainants as they became due, and the third note only remains due and unpaid; that the complainants refused to pay the last mentioned note, which has been protested; and the trustees have threatened to- put the deed of trust in execution: that they have accordingly advertised to sell the said property: *that some short time after the payment of the second note, the complainants were about to improve the said property, by the erection of two tenements, when they found that the said Miller had conveyed more ground than he or the said Hetherton was entitled to, and that there was a deficiency of nearly two feet in the 39 feet 10 inches front, conveyed to them' that the complainants have had the ground measured, and examined the title of the said Miller, and have no hesitation in charging the deficiency aforesaid: that the deed from Kearns to Miller for the said property, states the quantity to be 39 feet 9 inches, instead of 39 feet 10 inches: that this deficiency is considerable, when the value of property, in this part of the city, is considered: that the property was purchased with no other view than to erect two tenements; which object would be entirely frustrated by a loss of 2 feet in 39 feet 10 inches: that if the deficiency had been known at the time of the sale, they would not have purchased; nor would they have given as much by a third: that the deficiency of ground is claimed by the representatives of William Davidson, whose title is believed to be indisputable: that while the sale was going on, the said Heth-erton, who was present, was told by the said Davidson, that he had no right to sell as much ground as he pretended to claim and was then crying; upon which, Hether-ton was much displeased, and desired that nothing should be said by Davidson, calculated to affect the sale; all which has recently come to the' knowledge of the complainants. The complainants, therefore, prayed an injunction to prohibit the trustees from proceeding to execute the deed of trust, until the matter could be fully heard in equity; and to enjoin the other defendants from proceeding at law, on the said note of the complainants.
    The injunction was awarded.
    Miller and Hetherton answered, that they have no doubt that the complainants have received the number of feet mentioned in their deed; but even if they have not, the *ground taken in their bill, is wholly untenable: that according to the law of Virginia, when land is sold by the acre or foot, a Court of Equity will never avoid the contract, on account of any small deficiency or excess in the quantity, but will decree compensation to the injured party, according to the average value of the whole land; that there 'was no understanding in this case, between the parties, that the purchase was made for a specific object, which would be defeated by such a deficiency as is alledged to have existed in this case; and'whether the complainants intended to build one or two houses, the respondents were perfectly ignorant; that even if the 'supposed deficiency really exists, the complainants are not injured thereby, to the extent complained of by them; that if two feet be deducted from the lot, there will still remain enough for two tenements of nineteen feet front; which is a greater front than that of many valuable tenements, in the city of Richmond; that they verily believe, that the complainants have their full quantity of land conveyed in their deed: that they do not believe that the heirs of William Davidson ever laid claim to any part thereof, nor that they or any other person ever interfered in the slightest degree with the contemplated improvements of the complainants; that they are willing that a survey should be made, and that the complainants should be allowed at the rate of $200 per foot, for whatever deficiency should be found to exist; and that the injunction should stand as to $400, (the price of the two feet alledged to be deficient) until that matter may be ascertained; in the mean time, they pray that the injunction may be dissolved as to the balance due. The defendant Hetherton: denies, that he requested any person to say nothing calculated to affect the sale, as stated in the bill; that James Davidson was present at the sale, and casually remarked, that the city surveyor had placed a boundary stone a few inches on his lot; which would compel him to encroach a few inches on the lot in question; the boundary stone aforesaid, being the corner of a cross *street; upon which, the defendant Hetherton asked him if he meant to injure the sale, and he answered that he did not, and im-' mediately left the ground. The defendant Miller says, that the said Davidson has since declared to him, that he was perfectly satisfied with his lot as it then stood, and that he was perfectly assured, that he had his full quantity of land, &c.
    The deposition of James Davidson states,' that he holds 24 feet front of ground, on E street, running back 50 feet, and bounded by 21st street; that he does not claim any of the ground sold by Miller and Hetherton to Ralston and M’Nevin, provided his house, as it now stands, is at the intersection of E and 21st streets, as he believed it would be found to be, by former records.
    Richard Young, the surveyor of the city, deposed, that he re-surveyed that part of the city of Richmond, west of Shockce creek, and west of 25th street; that the points of departure, in making this survey, were three, viz: one at the south west intersection of E and 25th streets; one at the said intersection of 20th street; and one at the said intersection of 18th street, withE street; that he took the horizontal measure between each of these points; and after deducting the width of the streets from the space between each land-mark, divided according to the numbers of lots between each land-mark, and each line of the streets taken with a telescope, that he found several of the buildings, placed at the intersection of these streets, a considerable distance from the correct angles as taken by him; that he ascribed this result to the inequality of the ground, and the former manner of measuring distances and drawing lines by the naked eye; that he never saw a corner-stone at the intersection of E and 31st streets; but that he placed one there, according to the foregoing data.
    Other depositions were taken, not material to this report; and, on motion, the injunction was dissolved, in part.
    From this dissolution, an appeal was taken to this Court.
    *Stevenson and Nicholas, for the appellants.
    Wickham, for the appellees.
    November 11.
    
      
      Chancery Practice — Conveyance of Land — When Payment of Purchase Money Enjoined. — In Virginia, the court has. in favor of purchasers, gone far beyond everything which has been sanctioned by the court of chancery in England or elsewhere, in enjoining the payment of the purchase money after the purchaser has taken possession, under a conveyance, especially with general warranty. Yet, it has never gone so far as to interfere, unless the title was questioned by a suit, either prosecuted or threatened, or unless the purchaser could show clearly, that the title was defective. In Wamsley v. Stalnaker, 24 W. Va. 223, Judge Green, who delivered the opinion of the court quoting these words from the principal case, said that, according to his understanding-they contained the view which has been followed in Virginia and West Virginia, when the vendee is protected by a warranty of title and has not been evicted. In Miller v. Argyle, 5 Leigh 470, Cabell J., also quoted the language above set out from the principal case but said that in the case at bar, it was unnecessary to defend the correctness of the position advanced thereby. The words above set forth from the opinion of Judge Green, in the principal case were also cited with approval by Tucker, P., in Roger v. Kane, 5 Leigh 607. Even with us. relief is only given to a purchaser who has obtained his deed where there has been an actual eviction, or where a suit is depending or threatened, or where the vendee, placing himself in the attitude of the superior claimant, can show a clear outstanding title or incumbrance. Beale v. Seiveley, 8 Leigh 675; Wamsley v. Stalnaker, 24 W. Va. 222; Heavner v. Morgan, 30 W. Va. 335, 4 S. E. Rep. 406, all citing principal case. But the payment of the purchase money may be suspended upon the proof of a better title in a third person, to part of the land, although there has not been, and possibly never may be. an eviction, Feazle v. Dillard, 5 Leigh 35, citing principal case as authority. To the same effect, the principal case is cited in Ragsdale v. Hagy, 9 Gratt. 422; Peers v. Barnett, 12 Gratt. 416; Faulkner v. Davis, 18 Gratt. 661; Lovell v. Chilton, 2 W. Va. 415; Heavner v. Morgan, 30 W. Va. 335, 4 S. E. Rep 411. See also, footnote to Richards v Mercer, 1 Leigh 125; foot-note to Koger v. Kane, 5 Leigh 606; foot-note to Beale v. Seiveley, 8 Leigh, 658; foot-note to Clarke v. Hardgrove, 7 Gratt. 99; monographic note on ‘Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.
    
    
      
      Boundaries — Evidence of. — See generally, mono-graphic note on “Evidence” appended to Lee v. Tapscott, 2 Wash. 276. The principal case is cited in Harriman v. Brown, 8 Leigh 710; Taylor v. Com. 29 Gratt. 795; McClellan v. Town of Weston, 46 W. Va. 669, 39 S. E. Rep. 672.
    
   JUDGE GREEN,

delivered his opinion, in which the other Judges concurred.

The appellee Miller, holding as trustee for the other appellee, claimed title to part of a lot in the city of Richmond, extending on E street, from the corner of a Mr. Davidson’s house to that of a Mrs. Gray’s house; a distance of 39 feet 10 inches; and bounded by the walls of those houses. Miller sold this property, at public sale, to the appellants, as and for 39 feet 10 inches, at the price of $300 per foot. He conveyed to the appellants with general warranty, and they paid two-thirds of the purchase money, in two instalments; but obtained an injunction to the proceeding to recover the payment of the third instalment, upon the ground, that 3 feet 3 inches in front, of the ground conveyed to them and in their possession, belonged to Davidson, on the following case: Davidson had title to 34 feet on E street, commencing at the intersection of E and 31st streets; and Miller had title to 39 feet 10 inches on E street, running from Davidson’s corner to Mrs. Gray’s corner, it is alledged, that Davidson’s house, which is 34 feet on E street, encroaches on 21st street 2 feet 2 inches; and if he should be compelled to surrender these 3 feet 3 inches, as a part of the street, he will, in that case, be entitled to the same quantity out of the land sold by Miller to Ralston and another. It is not pretended, that any one, authorised to act on the subject, even threatens to disturb Davidson’s possession as it now is; and he himself does not now even claim any part of the land sold to the appellants, but declares, that if he shall be compelled to surrender the 2 feet 2 inches, he will seek *to indemnify himself to that extent, out of Ralston’s lot; but thinks, himself, that his house is truly located, at the intersection of the streets. This Court has, in favor of purchasers, gone far beyond any thing which has been sanctioned by the Courts of Chancery in England or elsewhere, in iujoining the payment of the purchase money, after the purchaser has taken possession under a conveyance, especially with general warranty. Yet, it lias never gone so far as to interfere, unless the title was questioned by a suit, either prosecuted or threatened, or unless the purchaser could shew, clearly, that the title was defective. How do the appellants attempt to shew this latter fact, in relation to this property? Mr. Young, the surveyor for the city, taking the intersection of some other streets as true, without any evidence that they are more correct than the one on which Davidson’s house stands, and measuring horizontally, finds that Davidson’s house encroached on 21st street. If he had taken the corner of Davidson’s house, as at the true intersection of E and 21st streets, he would have found the same error in the other streets from which he began. There is no evidence whatever, that the intersection of the streets, assumed by Young to be right, was so; but, as to that of E and 21st streets, it is probable, from the evidence of Myers, that it is, where Davidson claims it to be, at the corner of his house. If the original survey of the town was erroneous, either because it was made without regard to horizontal distances, or from any other cause or accident, and the property has been sold and held according to such survey; it is too late now to correct such errors. Ancient reputation and possession, in respect to the boundaries of the streets, are entitled to infinitely more respect, in deciding upon the boundaries of the lots, than any experimental survey that can now be made. If not, the whole city, and all other towns, would be thrown into the utmost confusion. The only error in the decree is, that it did not dissolve the injunction wholly, and it should now be corrected in that particular. Injunction dissolved. 
      
      Judges Garr and Cabell, absent.
     