
    *Purcell v. McCleary & al.
    July Term, 1853,
    Lewisburg.
    1. Joint Decree against Two Parties — Appeal by One Party — Effect.—TJpou a Rill against two joint owners of land, for the speciilc execution, or for tile rescission of, a joint contract made Toy them for the sale of the land, one of them answers the hill and sets up a defence equally applicable to both; and the bill is taken for confessed against the other. There being a decree against both for a rescission of the contract and a repayment of the purchase money, the party as to whom the bill has been taken for confessed, may appeal; and if the decree is erroneous, it will be reversed as to both.
    2. Vendor and Vendee — Conveyance of Property — Case ai Bar. — Tile quantity of land sold is tobe laid off in one, two or three tracts, as the vendee may choose. Therefore he vendors are not in de fault for failing to convey until the vendee has made his selection, and has caused the land to be surveyed.
    3. Rescission of Contract — Latent Ambiguity — Case at Bar. —There being a latent ambiguity in the contract. which can only be cleared np by a survey, it is error to decree a rescission of the contract until a survey is made, audit is thus ascertained whether the vendors can comply with their contract.
    A bond bearing- date the 23d day of December 1834, was executed by Joseph Hagan and Sarah Purcell, the latter by said Hagan as her attorney in fact, by which they bound themselves in a penalty of three hundred and eighty dollars to Thomas C. McCleary, that they would make to him a good title to two or three certain tracts of land in Russell county, on both sides of the Louisa fork of Sandy river, containing two hundred acres, beginning at the narrows above Yates’ improvement, then down the river on both sides, including the good land, and running up Slate creek as far as said McCleary wishes; and down the river, including the good land adjoining the improvement, and the improvement that Willis Deal lives on; to be laid off in one, two or three surveys, as the said McCleary chooses. And that the said Hagan and Purcell ^should make a title to the land within six months from the date of the bond, with general warranty. The purchase money was paid to Hagan at the time, in horses; and a few days afterwards McCleary, by an endorsement on the bond, assigned one-half of the interest in the contract to H. D. Smith.
    In 1846 McCleary and Smith instituted a suit in equity in the Circuit'court of Taze-well county, against Hagan and Mrs. Purcell, in which they set out the bond and the assignment; and alleged that the price of the land was one hundred and ninety dollars, which they alleged had been received by Hagan. They state that when they went to see the land they found it in the possession of other persons who refused to surrender it. That they had been induced to wait by the promises of Hagan to turn out the parties in possession. That he filed a number of caveats against persons on the Louisa fork; that these caveats were pending from 1836 to 1844, when they were dismissed without any decision on the merits. And as they cannot maintain a suit against the parties in possession, they ask either for a specific performance of the contract by Hagan and Mrs. Purcell, or for a rescission of the contract, and the return of the purchase money with interest; and for general relief.
    Hagan answered the bill; and alleged that McCleary was to have the land run out and furnish the courses before the defendant was to convey it to him; which he had not done. He insisted that the title to the land was good; and he was ready, whenever the land should be run out and the courses furnished, to convey the said lands pursuant to the title bond. He alleged that at the time of the purchase McCleary had possession of said lands at the mouth of Slate, and was well acquainted with them, and knew all about their condition and who was in possession ; and he denied that he was to put him in possession of the lands. Though *the process was served on Mrs. Purcell she did not answer; and the bill was taken for confessed as to her.
    Evidence was introduced to prove that the place called Yates’ improvement had been occupied for many years, under a title adverse to that of the defendants. And it was also proved that though one hundred and ninety dollars was the nominal price of the horses given for the land, that was in fact one-third more than their value.
    The cause came on to be heard in September 1848, when the court held that the plaintiffs were entitled under the contract, to be put into possession of the land, as well as to a conveyance of a good title. And reciting, that it appeared that the land or a part of it had been in the adverse possession of others, and that a conveyance alone would be unavailing, it was decreed that the defendants do, on or before the 1st of April 1849, either obtain possession of the land by them sold to McCleary, and deliver possession thereof to the plaintiffs;,or institute proceeding's for the purpose of dispossessing- the present occupant: And on their failure or neglect so to do, the court would proceed to rescind the contract and to decree to the plaintiff the value of the horses paid defendants, with interest.
    In April 1849 the cause came on again, and it appearing that the defendants had failed to comply with the former decree, the court decreed a rescission of the contract, and that the defendants should paj' to the plaintiffs the sum of one hundred and twenty-six dollars and sixty-six cents, with interest from the 23d of December 1834, until paid, that being the true value of the horses, and the costs. And thereupon Mrs. Purcell applied to this court for an appeal, which was allowed.
    Price, for the appellant.
    B. R. Johnston, for the appellee.
    
      
       Appeal — Parties Standing on Same Rights — Effect on Parties Not Appealing. — In Walker v. Page, 21 Gratt. 636, it was said: "Tbe rule established by the practice and decisions of this court may be stated to be this: Where the parties stand upon distinct and unconnected grounds, where their rights are separate, and not equally affected by the same decree or j udgmenl, then the appeal of one will not bring up for adjudication the rights or claims of the other. Tate v. Liggat & Matthews, and Liggat & Matthews v. Morgan, 2 Leigh 81, 107. But where the parties appealing, and the parties not appealing, stand upon the same ground, and their rights are involved in the same question, and equally aifected by the same decree or judgment. this court will consider the whole case, and settle the rights of the parties not appealing as well as those who bring their case up by appeal, Lewis v. Thornton, 6 Munf. 87, 97; Lenows v. Lenows 8 Gratt. 349; Liggat & Matthews v. Morgan, 3 Leigh 81; Purcell v. McCleary, 10 Gratt. 246."
      
      See the principal case cited for the same proposition in Saunders v. Griggs, 81 Va. 517; Morgan v. The Ohio, etc., R. R. Co., 39 W. Va. 25, 19 S. E. Rep. 591; Vance Shoe Co. v. Haught, 41 W. Va. 282, 23 S. E. Rep. 556. See also, foot-note to Walker v. Page, 21 Gratt. 636.
    
   *ABEEN, J.,

delivered the opinion of the court.

The court is of opinion, that as bj the contract disclosed by the title bond filed as an exhibit with the bill, it appears that Joseph Hagan and Sarah Purcell agreed to sell, and bound themselves to convey to Thomas C. McCleary two hundred acres of land on both sides of the Eouisa fork of Sandy river and on Slate creek, in one, two or three survejs, as the said Thomas C. McCleary might choose; it was the duty of said Thomas to make his selection, and cause the land to be surveyed at the place describfed. And until such selection and survey the said Hagan and Sarah Purcell were in no default for failing to convey the same..

The court is further of opinion, that as no- such selection has been made, a survey should have been directed before any final decree was pronounced, to ascertain the precise situation of the Yates’ improvement with reference to the land claimed by said Hagan and Purcell at the place described in the title bond, so as to enable the court to decide whether the two hundred acres could be laid off by beginning at the narrows above said improvement, and then down the river on both sides thereof, so as to adjoin and not to include said improvement, there being a latent ambiguity in the description of the land sold, which can only be cleared up by an actual survey.

The court is therefore of opinion, that said decree is erroneous; and the same is reversed with costs. And the cause is remanded to said Circuit court, with instructions to cause said two hundred acres to be surveyed in one, two or three surveys, as either party may direct; and for further proceedings in order to á final decree.

Decree reversed.  