
    *Bullitt’s Executors v. Songster’s Administrators.
    Wednesday, Nov. 27th, 1811.
    i. Sale of Land — Bond for Purchase Money — Premature. Suit on — Equitable Relief. — If, by an agreement under seal, between the vendor and purchaser of a tract of land, it be covenanted, that if any part thereof should be recovered by law from the purchaser, the vendor will abate, or refund, in proportion : and that he will not bring suit, upon the bondfor the purchase money, until the quantity of land which the purchaser is to get be ascertained, provided the purchaser prosecutes a suit for that purpose in reasonable time; a court of equity will give relief, by inj unction, against a premature suit on the bond: and if it appear that the purchaser prosecuted his suit in reasonable time, and could notrecover theland, thecourtwill decree that the injunction be perpetual; that whatever money has been paid be refunded: that the bond be surrendered and cancelled, and the contract rescinded.
    3. Same — Same—Same—Same.—In such case, if the* purchaser assigned to the vendor a bond of a, third person, in part payment, the court will decree that such bond be returned, or (if he fail to return it) the vendor pay the purchaser the amount thereof, with interest; no equity, in favour of the vendor, appearing to exempt him from such responsibility.
    3. Same — Same—Same—Same.—The executor or administrator, and not the heir, of the purchaser, is entitled to relief, in case the suit on the bond be against the executor or administrator.
    An agreement under seal, dated April 13th, 1791, between Cuthbert Bullitt and Thomas Songster, stated, “that the said Bullitt having sold the said Songster one thousand acres of land in Nelson County, (Kentucky,) upon the waters of Ash’s and Simpson’s creek, for the sum of 3001., of which sum the said Songster had paid the said Bullitt 331., and assigned Sampson Turley’s bond for 1171. some shillings, and given him, the said Bullitt, his own bond, with John Kincheloe securitj', for 1501., towards the payment for the same; now the said Bullitt agreed, that if any part of the-said lands should be recovered by law from the said Songster, he, the said Bullitt, would abate or refund, in proportion, for the land so recovered; and that he would not bring suit upon the said bond given by the said Songster and Kincheloe, until the quantity of land be ascertained that he-was to get; .provided he prosecutes a suit for that purpose in a reasonable time; and the said Songster agreed to be at all the-legal expenses for the said suit, let it terminate as it might.”
    In the year 1793,* Songster brought a suit in chancery, in Kentucky, against William-Black and others, charging that Bullitt had-made two entries, andobtained an inclusive patent for the said one thousand acres, of land, and conveyed the same to him, the plaintiff, and that the defendants, *&c. had improperly obtained patents founded on surveys, comprehending parts thereof; which surveys, as he alleged, were not justified by their locations; and that they threatened, at a future day, when he should be deprived of the testimony of his witnesses, to institute suits against him; praying therefore that they be decreed to convey and release to him so much of the said land as they held under the said patents; but not charging that they had interrupted his possession; or that their patents comprehended the whole of the said thousand acres.
    In 1801, the District Court, in Kentucky, pronounced an opinion, 5 ‘after examining the bill, answers, connected plat, and other exhibits, that the complainants’ claim could not be supported, against older grants, by any rational rule of construction;” and therefore dismissed the bill with costs. Songster’s widow and heirs (in whose behalf the suit had been revived upon his death) having appealed, the Court of Appeals of Kentucky, in April, 1803, concurred in opinion with the District Court, “that the entry, under which the complainants claim, and the entry, on which it depends, are too vague to be established against the title claimed under older grants,” and affirmed the decree.
    In April, 1804, the administrators of Songster filed a bill in the Superior Court of Chancery for the Richmond District, setting forth the agreement and proceedings aforesaid ; and alleging that, before the quantity of the said land was ascertained, according to the terms of the said agreement, Bullitt’s executors had commenced a suit at law against the said administrators, upon the bond given by him and John Kincheloe for 1501.— ’I'he "'complainants, therefore, prayed that the said defendants be decreed to refund to them all the money the said Bullitt received in his life time, or which the defendants, or either of them, had received since his death, in part payment of the said bond; that the same bond, and all other papers in their possession relative to the said contract, for the sale of the said land, be surrendered and cancelled, and the said contract be set aside; that they be perpetually enjoined from proceeding any further in the suit at law, &c.
    Bullitt’s executors, by their answer, said, “they are ignorant of the facts stated in the bill, but are advised, that if the case be as stated therein, the complainants can avail themselves of the same in a defence at law to the said suit; and for that cause in particular, pray to be dismissed with their costs.”
    The Court of Chancery, on the 11th of June, 1808, decreed the injunction to be perpetual, the bond in suit to be delivered up to be cancelled, the money paid to be refunded, with interest, and the assigned bond to be surrendered, or, in default thereof, the amount to be paid, with interest, and that the defendants pay the costs: —from which decree they appealed.
    Botts, for the appellants,
    made the following points■1st. That if there was any right of recovery, it belonged to the heirs of Songster, and not to his executors: — in support of which position, he cited 3 Bac. Abr. 91; 2 Levinz, 92; Yentris, 175; and 2 Call, 22, Eppes v. Demoville.
    2dly. That if the two entries in the name of Bullitt, stated in Songster’s Kentucky bill, were the same which originated the title meant to be transferred to him, it is *not shown by any legal or proper evidence, that there was any interference with the entries of the defendants in that suit; or, if any, to what extent the interference was. — The conveyance from Bullitt to Songster, though the best evidence, is not filed ; and the interferences are made out, only by the admissions of the bill and possibly by the survey, annexed to the record, which is not, to this purpose, intelligible to the appellant’s counsel. It was just as much in the power of Songster to impeach any other entry made by Bullitt in Kentucky, and, without proof, to indemnify it with the title conveyed to him, as it was to impeach, and identify, with that title, the entries, mentioned in the bill.
    3. That if the plaintiffs were aggrieved, their remedy was at law, by an action of covenant, upon the agreement.
    4. That if the contract was to be rescinded, it should have been upon terms of a re-conveyance of the land, yielding back the possession to Bullitt’s heirs, and accounting for profits.  And this the more especially, as the opinions of the Courts in Kentucky were not that Bullitt’s grant was void, but only that his entries were too vague to prevail against prior grants.
    5. That the covenant provided only for the case of an eviction of Songster, by a suit against him, and not for the speculative suit, in which he occupied the un-favourable position of a complainant, 
       admitting the all important, and as yet unproved fact, that the entries of the Kentucky defendants covered the same land that Bullitt had entered and sold; an admission, by which Songster might have procured a decree, against himself, in favour *of any other distant land holders he might please to select. 6. That the decree was erroneous in compelling'Bullitt’s executor to pay the amount of the assigned bond, in case they should fail to surrender it; because they were thereby "precluded from showing that it made part of the record of a suit proving the obligor insolvent.
    
    No Counsel appeared for the appellees.
    
      
      Note. This hill stated that William Black, and the other defendants to the suit in Kentucky, claimed, and included in their patent, the whole of the said one thousand acres of land, which therefore was totally lost to Songster by the decision against him: and this allegation appeared to be verified by a survey made in that suit by order of the court; a copy of the plat and certificate of which was exhibited and duly authenticated as part of the record from Kentucky. — Note in Original tidition.
    
    
      
      Note. There was no suggestion in the answer of Bullitt’s executors, or in any other part of the record, that Sampson Turley, the obligor in the assigned bond, was insolvent. — Note in Original Edition.
    
    
      
      Note. The two entries in question are each for 500 acres; the first, “the remaining- part of a warrant for 2,000 acres granted him for military service, joining David Griffith and Charles Simms, below, to the north westward of the said Griffith:” — the second, “joining below his other entry and Charles Simms.” — Note in Original .Edition.
    
    
      
      Note. It does not appear in the record that Songster was ever in actual possession of the land, or received any profits, bnt if he had, the Court would probably not have compelled him to re-convey the land, or account for profits; the title conveyed to him being totally defective, and the benefit of his bargain, (whatever it might have been,) being lost.-- Note in Original Edition.
    
    
      
      Note. Mr. Bolts appears to have overlooked that part of the agreement in which it was provided that Songster should prosecute a suit for the land in a reasonable time. — Note in Original Edition.
    
   Friday, April 3d, 1812, the president pronounced the opinion of the Court, that the decree be affirmed.  