
    *Bryan v. Salyards & als.
    July Term, 1846,
    Lewisburg.
    Vendor and Vendee — Claim of Third Person — Compromise. — A third person having obtained a decree against the vendee of land, for a snm of money, to Re paid out of tlie purchase money due to the vendor, and the vendee having compromised that claim,,for less than the amount thereof, he is only entitled to credit upon the purchase money, for the sum he paid.
    In 1829, William Salyards sold to Thomas Bryan and John J. Salyards three fourths of a furnace and lands attached thereto in the county of Hardy, (the other fourth belonging to Abraham Baker,) for which they were to give 8609 dollars. Of this sum they paid 3000 dollars in cash, and gave their bonds for the remainder.
    Soon after this sale, Samuel Scott and William Slater filed their bill against these parties in the Superior Court of Frederick county, in which Scott claimed by purchase from William Salyards, an interest of three eighths in the property sold by him to Bryan and J. J. Salyards, and Slater claimed one fourth by purchase from Baker.
    In the progress of this cause, Bryan paid to a receiver of the Court, 1864 dollars 69 cents, part of the purchase money due from him for the property purchased of William Salyards; and on the final hearing of the cause, the Court made a decree in favour of Scott for 2054 dollars 7 cents, with interest on 1607 dollars 77 cents, from the 31st of May 1837, till paid; subject to a credit for the amount in the hands of the receiver. From this decree, Bryan and William Salyards appealed; but before the appeal was perfected, Bryan compromised with Scott, by paying him on the 2d of November 1837, 1150 dollars, in full of the decree in his favour.
    ^Whilst the case of Scott and Slater was progressing in the Superior Court of Frederick, the bonds given by Bryan and J. J. Salyards for the property purchased of William Salyards were assigned by him to various persons, and suits were brought upon some of them and judgments obtained. Bryan thereupon obtained an injunction to these judgments froth the Superior Court of Hardy, on the ground of Scott’s claim, and that he had been directed to pay the money due from the property purchased, to a receiver of the Court in that suit.
    After the determination of the suit of Scott and Slater, and the compromise between Scott and Bryan, the injunction cause in the Superior Court of Hardy came on to be heard, when, the Court held, among other things, that Brjmn was entitled to credit upon his bonds for the whole amount of Scott’s decree; and referred the account to a commissioner. The report of the commissioner having been returned, the Court made a decree dissolving the injunction for the balance reported to be due from Bryan for the purchase money. From this decree, Bryan applied to this Court for an appeal, which was allowed.
    Mason, for the appellant, submitted the cause upon the petition.
    Patton, for the appellee, referred to the case of Blow v. Maynard, 2 Heigh 29.
    
      
      The principal case is cited in Shepherd v. Hammond, 3 W. Va. 487.
    
   BABDWIN, J.,

delivered the opinion of the Court; and after ruling in favour of the appellant, several points of not much importance, and which involved no principle, proceeded:

And the Court is further of opinion, that there is error in the decree of the Circuit Court to the prejudice of the appellees in this, that Bryan is credited with the full amount of Scott’s decree, to wit, 2054 dollars 7 cents, instead of only 1150 dollars, the sum with which Bryan *paid it. Bryan owed a balance of purchase mone3' to Salyards under a contract which was confirmed by the Court, and Salyards was entitled to the whole of it, except so much as was requisite for the discharge of the interfering claim of Scott. To that extent, and no further, was Bryan entitled to indemnity from Salyards. The result of the decree of the Circuit Court is to give to Bryan the property he purchased from Sal-yards, for a much less sum than he contracted to pay for it. It was immaterial to Bryan to whom he paid the purchase money due from him, whether to Scott or Salyards. In effect his payment to Scott was out of Salyard’s money, which had been withdrawn from Bryan’s hands and paid into Court. The joint appeal of Bryan and Sal-yards, which enabled Bryan to make this speculation, was taken for the benefit of Salyards, as appears from his agreement with Bryan to pay the whole costs of it out of his own pocket; and it was by thus getting behind the back of Salyards that Bryan effected his compromise with Scott. If Bryan and Salyards had been the joint owners of the fund, the compromise would have enured to the benefit of both, but Sal-jmrds being the sole owner thereof as regards Bryan, it ought to enure solely to the benefit of Salyards.

* It is therefore adjudged, ordered and decreed that the aforesaid decree of the Circuit Court be reversed and annulled, and the appellees being the parties substantially prevailing, that they recover against the appellant Bryan their costs by them expended in the defence of this appeal. And the cause is remanded to the said Circuit Court, to be there further proceeded in according to the principles of the foregoing opinion and decree; and for the decision of priorities amongst the appellees; and for the proper relief amongst the parties at a final hearing. _  