
    *Mills v. Bell, Executor, and Others.
    [Monday, November 1st, 1802.]
    Sale of Land — Eviction—Measure of Damages— Case at Bar. — where the title to part of the lands purchased, during- the paper money age, but not conveyed, was evicted; and owing to the laches of the purchaser, in not punctually paying some of the last instalments, the vendor’s executor was prevented from purchasing the evicted lands, this Court decreed a conveyance of the lands not evicted, and proportioned the loss arising from the eviction on the whole purchase money: Instead of mating the vendor’s estate liable for the value of the land at th e time of eviction; which would have been the rule, if there had been a conveyance with warranty.
    John Mills, as heir and devisee of Robert Mills, filed a bill in the High Court of Chancery against Joseph Bell, as executor of David Bell, and the executors of Robert Mills, stating, that Robert Mills purchased of David Bell, in his life-time, two tracts of land, one of 210 acres, and the other of 100 acres, for the sum of 5001., of which 220 had been paid, 1201. were tendered at the time the same fell due, and the payments of the residue suspended, until a title to the lands aforesaid should be made-. That a judgment was afterwards recovered, by one Francis, against Robert Mills, for the 210 acre tract. That the defendant has refused to make the plaintiff a title for the other tract, or to compensate him for the value of tha.t recovered. The bill, therefore, prays for a convej’ance of the 100 acre tract, reparation for the other, and for general relief.
    The agreement, which is referred to in the bill, after reciting the names of the parties, states, “the said David Bell hath sold, unto the said Mills, the two tracts of land, which he bought of Ro. Wylie and John Francis, except a neck of about 20 or 30 acres, of Wylie’s tract, which said Bell sold John Hall. Captain Bell agrees the land sold, to contain 300 acres. Robert Mills covenants to pay him 5001. Virginia money for the same, in manner following: 1001. immediately down; 601. next November; and 601. every year following, until the said 500 is fully paid. Captain Bell promises to make Robert Mills a sufficient title next November. They do hereby bind themselves and heirs, unto each other, in the penal sum of one thousand pounds, under their hands and seals, this 20th of February, 1278.”
    The answer of Bell states, that Robert Mills, about the 15th of June, 1781, offered him 601. ‘in paper money, as one of the instalments, which, not finding any papers relative to the sale of the land, he declined taking, till he should be better advised, That in December, 1781, the plaintiff offered him 1201., saying it was for two other instalments then due; which the defendant proposed to accept, if he would pay the balance in specie, but the plaintiff declined it. That the defendant afterwards offered, if all the money was paid according to the scale, to give his own bond for the title of the whole land, as he had reason to believe he could purchase the 220 acre tract of Francis; but the plaintiff said he could not pay the whole money, although he should never a_sk a title, until he paid up the money, according to the in-stalments. That the defendant has never refused to convey the 160 acre tract, if he could settle as to the other.
    A witness says, that, in a conversation between the plaintiff and defendant, the latter said, if the former would pay the money, he thought he was still able to make a title to the land; and that the plaintiff tendered the amount in specie, according to the scale.
    Some other witnesses speak about the tenders, &c. and there are receipts for four payments of 601. each.
    The County Court decreed a conveyance of the 100 acre tract, and compensation for the tract which was recovered by Francis. From which decree the defendants appealed to the Court of Chancery, where, by consent of parties, the decree was opened, the suit retained, and ordered to be prosecuted as an original suit. Whereupon a new bill and answer were filed, and some new depositions taken, which did not materially alter the case. The Court of Chancery upon the hearing, directed an issue to ascertain the value of the lands; and, upon the return of the verdict, ‘affirmed the decree of the County Court, as to the conveyance of the small tract, but reversed it, as to the residue, and dismissed the bill. From which decree of reversal, Mills appealed to this Court.
    Call, for the appellant.
    
      The plaintiff ought to have a decree for the ninety acres, and damages for the loss of the 210 acres. That the payments actually made, were in paper money; two other in-stalments tendered in that medium; and the balance offered according to the scale, only, are circumstances which will not affect the case: Because, the plaintiff performed his contract throughout; for, he stipulated for the currency of the country, and therefore ought to have the benefit of the contract, on payment of that kind of money. In this respect it differs from the case of White v. Atkinson, 2 Wash. 94; because there, the purchaser had wholly neglected to perform the engagements, on his part, which was the foundation of the Court’s opinion in that case; for, having failed to perform himself, the Court could deny its aid, unless upon equitable terms. But here no injustice will be done, as the appellant has not been guilty of any neglect to the injury of the seller. For, the contract was made when paper money was current; and it was current, also, at the time of payment, and of the tender: So that what he contracted for, he actually received, and had tendered to him. It therefore resembles the case of Taliaferro v. Minor, 1 Call, 524; in which, the difference between performance and non-performance by the purchaser, was distinctly admitted. Of course, that case regulates this, unless the purchaser having been a defendant and not a plaintiff, there, may be supposed to constitute a difference. But that circumstance ought not to alter the case, if the plaintiff has fulfilled his contract, without any negligence, or fault; for, having performed the contract himself, he has a right to insist on fulfilment by the vendor. The decree, therefore, ought to have been founded on the paper money ^contract, and, of course, damages, according to the verdict of the jury, ought to have been allowed; that is to say, the 90 acres should have been deducted at its value by the verdict, and the balance of the verdict decreed, after a rebatement of the purchase money, according to the scale.
    Wickham, contra.
    The case does not depend on precedent, but upon immutable principles; for, a Court of Equity may retain, or dismiss bills, at its discretion ; and there is nothing which entitles the plaintiff to favor, in the present case. It does not appear that he has laid out money iri improvements, or been put to inconvenience in consequence of the purchase. He asks strict law; and, therefore, should shew performance on his own part. He does not do so, however; for, there was not only failure to tender some of the payments on the day, but the bill actually shews a suspension of payments. If the injury is compensated for, at all, it should be at the time for conveying the complete title; and not at the time of the verdict. But why should the plaintiff receive damages, as he was not to pay for the deficiency? In this view of the case, the Commissioner’s report ought to be corrected, having regard to the balance of the unpaid purchase money. The case does resemble Taliaferro v. Minor; because, there, all the purchase money, but the shares of the purchasers, was actually’ paid ; and the purchasers did not come into equity to ask a favor, so as to enable the Court to lay them under terms; for, they were defendants to the cause.
    Call, in reply.
    With respect to the damages, the verdict affords the fairest rule; because, the question was, probably, more fully investigated, at that time. But, if this be rejected, the report of the County Court Commissioners, which is expressly declared to be for the damages sustained, and, therefore, in 1he nature of a verdict in an action for breach of the contract, ought to be taken as a ^measure of the damage. There was no default in Mills as to his payments : Several were actually made, and two others tendered: And, although it does not appear that the tender for the 601. due in 1781, was made on the very day; yet, that may have arisen from the death of the seller, and the delay in his executor to qualify; which is the more presumable, as no objection appears to have been made, on the ground of the failure to pay, at that day.
    Cur. adv. v.ult.
    
      
       Sale of Land — Eviction—Measure of Damages. — For a -discussion of this question, see the principal case cited in Humphreys v. McClenachan, 1 Munf. 500; Stout v. Jackson, 2 Rand. 135, 138, 141, 165, 166; Cabell v. Robert, 6 Rand. 582; Threlkeld v. Fitzhugh, 2 Leigh 455; Thompson v. Guthrie, 9 Leigh 106.
    
   PENDLETON, President,

delivered the resolution of the Court, as follows:

The foundation of this suit is an agreement entered into, in February, 1778, between David Bell and Robert Mills, both since dead, by which Bell agreed to sell to Mills, two tracts of land, which he bought of Wylie and John Francis; which he agreed should contain three hundred acres, and for which, he was to make Mills a sufficient title the next November. Mills was to pay 5001. Virginia money, and 1001. down; 601. the next November, and 601. every year following, until the whole was paid. The prompt payment was made, and so were those of November following, and that of November, 1779, but none of the subsequent payments were made. That for the 601. payable November, 1780, was tendered, in June, 1781, when the depreciation, according to the scale, had increased from 74 to 250, and, in December, 1781, 601. and the 601. for November, 1781, were tendered; when either the paper was called out of circulation, or which is the same thing, the scale was at 1000 for one. If the subsequent payments had been made in specie, Bell would have been made amends for former disappointments; and there appears some reason to suppose such was the intention of the parties, but it is not so sufficiently proved as to be the ground of a decree. The depositions prove *the tender of the paper money, and two witnesses say, that whilst the suit of Francis v. Mills, was depending, in conversation, Joseph Bell said if Mills would parade the money, he thought he was still able to make a title to the land; and, after that suit was tried, Bell told Mills, the plaintiff, that, if he would comply with his uncle’s agreement, he was willing to receive the money; upon which, Mills said here is your money, agreeable to the scale, if you will make me a title. Bell replied, you are going to take advantage of me, and hastily went out of the room; upon which, Mills put a sum of specie into the hands of one of the witnesses, who counted it, and found it sufficient to discharge the debt, according to Mills’ report of the amount, but the sum is not mentioned. This evidence of a tender is too uncertain to enable the Court to say that the non-payment was owing to the creditor, so as to relieve the debtor under the fifth section of the Scaling aGt. And, upon the whole, the contract is to be adjusted according to the second section of that act. It appears, that Bell had not paid for the land purchased of Francis, nor obtained a conveyance; that Francis, by ejectment, recovered 210 acres of the 300 sold to Mills, who retained only 90 acres; and that even this was not convej'ed to him by Bell. Upon which, the plaintiff, nephew and heir of Robert Mills, in 1780, commenced this suit against Joseph and Florence Bell, executors of David Bell, and William Bell, his heir, at law, to have a conveyance of the land, and an indemnification for all losses sustained, or to be sustained in consequence of the breaches of the agreement, on the part of Bell. Joseph Bell alone answers the bill, which is taken for confessed as to William Bell, the heir at law. A replication is filed, and the depositions of witnesses taken: upon the hearing, a decree is made, that William Bell, the heir, should convey to Mills the 90 acres, and that the executor of David Bell should pay to Mills what should be recovered for the mesne profits of the 210 acres upon a suit then depending; and ^Commissioners were then appointed to value the 210 acres recovered, and to enquire what injury Mills had sustained, from the reduced value of the remaining 90 acres. The Commissioners having reported, that the value of the lands recovered, and the damages, were 1851. The Court decreed, that Bell’s executors should pay the same, and that the cause should be continued, till the action for the mesne profits was determined; which thejr afterwards say was decided by a verdict for Francis, for 61. and costs: And their final decree is, that the heir convey the 90 acres, and the executors pay the 1851., the 61. for mesne profits, and 91. 9s. 6d. for costs; and, also, the costs of suit. On an appeal to the High Court of Chancery, by consent of parties, the suit was retained, to be prosecuted as an original suit. A new bill and answer of Joseph Bell were filed, and several witnesses examined; which do not seem to change the case materially; from what it was, in the County Court. The Chancellor directed an issue, to be made up, .and tided in the District Court of Staunton, to ascertain the value of the lands mentioned in the articles of agreement. The jury’s verdict upon that issue is, “that the whole land is worth 6341. 10s. ; the 90 acres worth 6 dollars an acre, and the 210 worth 734 dollars an acre. ’ ’ On the hearing, the Chancellor affirmed the decree for the conveyance of the 90 acres, but reversed it as to the residue, and dismissed the bills, with costs in that Court. He afterwards reversed this decree, on a hew argument; from which, there is an appeal to this Court. The first point which presents itself to the consideration of the Court is, by what ratio the compensation to be made to Mills for the land evicted, is to be adjusted? Whether the value of them at the time of eviction, or at the time the purchase was made? The former would be the rule, if a conveyance had been made with warranty; since the purchaser is entitled, on the covenant, to the increased value of the estate, as well as for any improvements he may have made on it. But when, as in this *case, the contract is executory, a Court of Fquity will adjust it upon principles of equity, according to the circumstances: And since Mills appears to have been faulty in his payments, which, if regularly made, might have prevented the loss, it ought to be adjusted by proportioning the loss to the value of the whole purchase money, for the whole land: A rule, which does not appear to have been observed in either of the Courts below. In the County Court, they gave the present value of the land lost, and that without even deducting the balance of the purchase money; and the Chancellor has dismissed the bill as to the compensation, without allowing Mills for the money over-paid for the 90 acres, or his costs in defending the suits by Francis.

This Court having fixed the rule of compensation, and that the contract is subject to the legal scale, proceeded to adjust the dispute between the parties, in this manner: The 5001. purchase money reduced at five for one, is 1001.: the proportion of 210 acres lost so reduced is 701., leaving 301. specie to be paid for the 901 acres. Mills paid 2201.; which, reduced by the same scale, is 441. ; so that he over-paid 141. in November, 1779; which he is certainly entitled to recover, with interest. The mesne profits and costs are rejected, because he received the profits himself, and should have paid them, without suit. The damages for his disappointment are also rejected; because, if he had been punctual in his payments, the title of Francis might have been purchased in, and a loss prevented. Therefore, the decree of dismission ought to be reversed, with costs, and a decree entered for Mills for 281. (being the 141. and interest for twenty years;) and the decree, as to the conveyance of the ninety acres, affirmed. The costs, in both Courts, in Chancery, to be borne equally by the parties.

*The decree was as follows:

“The Court is of opinion, that the purchase money, agreed to be .paid by Robert Mills, for the lands in the proceedings mentioned, ought to be reduced to specie, according to the legal scale at the time of the contract, since none other appears to have been contemplated bj' the parties at the time; and that, as the contract remained executory at the time the appellant was evicted of part of the land, since it is probable that the title of Francis might have been purchased in, and the dispute avoided, if Robert Mills, or the appellant, had been punctual in their payments, the compensation to the appellant for the lost land ought to be adjusted according to the value at the time of the agreement, of which there is no evidence, except the consideration agreed to be paid; which, therefore, ought to be the rule; and that proportioned according to the quantities of the lands lost and saved, which allots to the land lost seventy pounds specie, and to the ninety acres saved, thirty pounds; and the appellant having paid two hundred and twenty pounds, which reduced amounts to forty-four pounds specie, by which fourteen pounds are over-paid for the ninety acres, that sum, with interest, ought to have been decreed to the appellant; and the decree of the High Court of Chancery is erroneous in dismissing the appellant’s bill as to that claim, with costs. The claim of the appellant for the mesne profits recovered by Francis, is rejected, because those profits were received by the appellant himself; and he ought to have paid them without suit. Nor is he entitled to damages for disappointment in the loss of the land recovered, since it probably was occasioned by his own default; and that there is no error in the residue of the said decree. Therefore, it is decreed and ordered, that so much thereof as respects the conveyance of the ninety acres of land, be affirmed; *and that the residue be reversed. And, this Court proceeding to make such decree, as to the residue so reversed, as the High Court of Chancery-should have pronounced; it is further decreed and ordered, that the executors of the said David Bell, out of his estate in their hands to be administered, pay to the appellant the aforesaid sum of fourteen pounds, with interest thereon for twenty years; and that the costs in the County Court, and the said High Court of Chancery, be equally borne by the parties.”  