
    *Evans and Wife, &c. v. Kingsberry and Wife.
    December, 1823.
    Equitable Conversion — Condition — Effect. — Where land is not converted out and out. and at all events, into personal estate, but on the contrary, its conversion depends on a condition, it will not be considered in equity as personal estate.
    Same — Same—Same.*—But, when a valid sale is made, and not till then, the surplus proceeds of sale (after paying- the debts charged upon the estate,) would be personal property, belonging to the person then entitled to redeem, and transmissible to his personal representative.
    Husband anil Wile — Conveyance by Husband — What Passes, — A conveyance by a husband will pass the entire interest of his wife, entitled to a life estate in lands, in the event of his surviving, but, if she survives him, it passes only an interest during his life.
    Specific Performance — Where Purchaser Cannot Get All Contracted for. — Where a purchaser cannot get a title to all he contracted for, if he can get the substantial inducement to the contract, he may insist upon taking, or he may be compelled to accept, a title to so much as the other party can give a good title to, with a reasonable compensation for what the party cannot effectually convey.
    This was an appeal from the Court of Chancery at Lynchburg.
    In the year 1813, John W. Bradley was the owner in fee simple, of a tract of land, subject to a life-estate in one moiety thereof, to which his mother, Mary Evans, was entitled. On the 28th of April, and 8th of May, 1813, he conveyed this land to James Martin and Joseph Slaughter, jointly, by two several deeds of trust, to secure the payment of two debts, due to Charles Clay, with authority to the trustees, or either of them, to sell, for that purpose, at auction, for cash; and with a provision, that they should pay over the surplus money, if any, “to the said John W. Bradley, his heirs, executors, or administrators, or to his written order.”
    After the execution of these deeds, and before any sale under them, John W. Bradley died intestate, leaving Mary Elizabeth Bradley, an infant child, his only heir, and leaving a widow, Nancy M. Bradley, the mother of his infant daughter. Walter Dunnington became his administrator.
    *After the death of John W. Bradley, James Martin, one of the trustees, advertised a sale for cash, under these deeds, to take place on the 9th of June, 1814. At the foot of the advertisement, is a note, signed by Walter Dunning-ton, the administrator, saying that, by agreement with Clay, the creditor, the sale would be for one half cash, the balance on a credit; and that lie was authorised to say, there would be no difficulty in the purchaser’s getting a complete title to the land, from those interested.
    Mary Evans, the mother of John W. Bradley, who had the life-estate in a moiety of this land, was a married woman, and with her husband, William Evans, executed a power of attorney to the aforesaid Walter Dunnington, dated the 4th June, 1814; reciting the contemplated, sale, and their willingness to have their interest in the land sold at the same time, “provided, half of the money or bonds, arising from such sale, is received by us, from the purchasers;” authorising their attorney to dispose of their interest in the land for them, and agreeing to make proper deeds.
    The whole land was accordingly sold, by the trustee, to James C. Moorman, for a sum per acre, which amounted to upwards of $8,500, one half to be paid in cash, ¡he other half at Christmas next ensuing the sale. Moorman paid the debts of the creditor, Charles Clay, amounting to $2,719, but paid no' more of the purchase money.
    Shortly after the sale, the land was surveyed, in the presence, and with the approbation of the purchaser, Moorman; and the quantity being ascertained, a deed was made by the trustee, Martin, dated the 30th June, 1814, conveying the whole land to Moorman; but, it does not appear that this deed was ever recorded, or delivered to Moorman, or accepted by him.
    Evans and wife also executed a deed, dated the 9th November, 1814, purporting to convey their interest in the land to Moorman; and there is a commission for her privy examination, and a certificate of the magistrates annexed *to this deed. This certificate is imperfect; and, among other imperfections, it omits to state -that the wife was privily examined.
    This deed was refused by Moorman, he having become dissatisfied with his purchase, and unwilling to carry it into execution.
    Nancy M. Bradley, the widow of John W. Bradley, who had not relinquished her dower in her husband’s life-time, also executed a deed to Moorman, dated the 11th of August, 1814, irregularly proved and certified, from North Carolina, not recorded in this State, and not accepted by Moorman.
    Moorman was .acquainted with the state of the title at the time of his purchase, and he shortly after expressed himself well pleased with the purchase, and offered to sell the land to one or two persons. It does .not appear, that. he took possession of it, till after this suit was brought, and then only by renting it, while the suit was pending.
    In February, 1815, the original bill was filed, in which Martin, the trustee, William Evans and his wife, Nancy M. Bradley, the widow, Mary Elizabeth Bradley, the infant heir, by her mother, the said Nancy, her next friend, and'Walter Dunnington, the administrator, are plaintiffs; and James C. Moorman is the defendant.
    The bill alledges the facts above set forth; alledges, that Evans and wife, and the other plaintiffs, are still willing to ratify the sale; that Moorman has taken possession of the land, and accepted the deed from the trustee, and prays a specific execution of the contract.
    .Moorman admits the purchase, but denies that he has taken possession, or accepted any of the deeds, and assigns as the reason, for not carrying the contract into execution, the want of obligation, on the part of Mrs. Evans, to comply on her part, and the delay of her husband and herself to make the deeds after repeated application, so that his views in the purchase had been disappointed, and he had lost the opportunity of making an advantageous sale; *prays, that he may be placed in the shoes of the creditor, whose debt he has discharged, and that the land may be resold, to refund him the money and interest.
    At the May term, 1816, the plaintiffs had leave to amend their bill, and make new’ parties; whereupon, an amended bill was filed by Walter Dunnington, the administrator, alledging that unless the surplus proceeds of the sale, be considered as assets in his hands, the personal assets will be insufficient to pay both simple contracts and specialties, praying that the assets may be marshaled, and making the heirs of John W. Bradley, defendants.
    When this amended bill was filed, Mary Elizabeth Bradley had died, at about three years of age, and her mother Nancy was then married to Kingsberry. The heirs of Mary Elizabeth, on the part of her father, were her grandmother Mrs. Evans, one of the plaintiffs in the original bill, and her father’s sisters, Mrs. Dunnington, the wife of the administrator, Mrs. Brown, the wife of Lewis Brown, and Ophelia Bradley, an infant.
    These matters are not mentioned in the amended bill; but it is answered, by Evans and wife, Dunnington and wife, Brown and wife, Ophelia Bradley by her guardian ad litem, and by and Nancy M. bis wife, who say, they know nothing of the matters set forth in the amended bill, and that they are willing that what is right should be done.
    Brown and wife also file a separate answer, stating., Mrs. Brown and her sisters to be the heirs of John W. Bradley, since the death of Mary Elizabeth Bradley.
    The depositions of Nicholas Harrison, Christopher Fowler, and Robert C. Scott, prove nothing material, except that Moor-man was pleased with his purchase, was present at the survey, aided in fixing the corners and lines, and offered the land for sale.
    On the 15th May, 1817, the cause came on for hearing; when the other parties, acceding to the prayer in Moorman’s answer, and consenting to absolve him from his purchase, *and have a re-sale of the land: a re-sale was accordingly directed, a provision made for reimbursing Moorman his advance to the creditor, and an account of rents and profits directed. At the same time, a memorandum is entered of record; which was intended to provide, that the assent given by the parties to that decree, should, in no manner, affect their respective rights to the surplus of the purchase money.
    The land was re-sold under the decree, an account of rents and profits taken, and Moorman reimbursed his advance.
    At the October term, 1817, the plaintiffs had again leave to amend their bill; and in pursuance of that leave Kingsberry and wife filed a supplemental bill, praying a ratification of the sale to Moorman, and claiming the surplus proceeds of the sale, as personal property, which, belonging to Mary "Elizabeth at her death, passed to her mother, Mrs. Kingsberry; or, if that could not be granted, then dower, or money in lieu thereof. To this bill, all the other parties to the suit are made defendants.
    Evans and wife, in answer to this bill, insist, that the sale to Moorman is not valid, because not made pursuant to the trust deed, and because, Mary Evans, being a married woman, was not bound by her assent thereto. They insist, that the condition on which that was given, has not been complied with, and they now retract it; that the deed made by them, was insufficient to bind a married woman, originally, and was never accepted, and they now retract it. They refuse any longer to prosecute the original bill, for specific performance, or to do any thing else to ratify the sale, and claim one fourth of the equity of redemption in the land, as the inheritance of Mrs. Evans, the paternal grandmother of the infant Mary Elizabeth.
    The answer of Dunnington and wife, Brown and wife, and Ophelia Bradley, refers to the answer of Evans and wife, objects to the ratification of the sale to Moorman, and claims the inheritance from M ary Elizabeth as her paternal heirs.
    ^Moorman’s answer refers to his former answer.
    Tssue is taken upon these answers, and an agreement of parties filed, whereby it is provided, that the pleadings upon this supplemental bill are to be regarded as having been filed at the commencement of May term, 1817, before any decree was pronounced in the cause, and that the assent, yielded to that decree, should in no manner whatever, affect the rights of the several representatives of Mary Elizabeth Bradley, as to the distribution of the surplus money. This agreement also ascertains the facts as above set forth, as to the death of Mary Elizabeth, the marriage of her mother, and the relationship to her of Mrs. Evans, Mrs. Dunnington, Mjrs. Brown, and Ophelia Bradley.
    At May term, 1818, the right of Evans and wife, to a moiety of the rents, and their right for the life of Mrs. Evans to a moiety of the purchase money, not being contested, a decree, by consent, -is made, directing payment thereof, on the proper condition.
    At the October term, 1818, these causes were heard together, by consent, and the Court deciding, that by the terms of the deeds of trust referred to by the bill in the first suit, the overplus of the money, after payment of the debt, interest and expenses secured by the said deeds, ought to be considered as personal estate, directed accounts, &c. accordingly.
    At the May term, 1831, Ophelia Bradley having intermarried with Robert Venable, he is made a party to the suits, and on the motion of Evans and wife, Dunnington and wife, Brown and wife, and Venable and wife, an appeal is allowed them from so much of the decree of October, 1818, as determines, that the surplus money is personal estate, and goes to the personal representative of Mary Elizabeth Bradley.
    Johnson, for the appellant.
    The question is, whether the paternal or maternal kindred are entitled to the proceeds of the sale; or, 136 *in other words, whether the property is to be considered as real or personal estate. The Chancellor has decided, that it is to descend as personal estate.
    It is certain, that the grantor and his heirs held the equity of redemption; and the only question is, whether the sale to Moorman was valid? This question has a two-fold aspect: 1. As it relates to Moorman. 2. As it relates to the other parties to the supplemental bill.
    1. There was no written agreement, which is necessary by the statute of frauds. If it should be said, that there was part performance, the answer is, that there is no evidence of such a possession, except pendente lite; and it cannot be supposed, that he would take possession under the deed, at the very moment that he was contesting its validity.
    It is now admitted, that a sale at auction is within the statute of frauds. It is true, the statute is not pleaded; but it is not necessary in this case. Although great diversity of opinion has existed among the English Chancellors, on this subject, it is now the settled doctrine, that if a contract is admitted, and the statute pleaded, the defendant is entitled to its benefit. It would follow, then, that if the statute is not pleaded, the defendant is entitled to its benefit; because, it is a general law of the land, of which Courts take notice, of course. Although Moorman does not plead the statute expressly, yet he states generally, that he ought not to be compelled to execute the agreement, and that is sufficient.
    Moorman not being bound to comply with the bargain, the other parties were equally free.
    The sale and conveyance were made by only one. trustee; but both were necessary to join in executing a trust confided to both.
    The authority in the trust deed was departed from, in selling upon credit and not for cash. It is vain to say, that this mode of sale was more beneficial. The deed must give the rule.
    *2. As to the other parties to the supplemental bill, the decree is erroneous. Mrs. Evans, being a married woman, could not be bound by her assent, without a privy examination, which was not obtained in this case. She therefore, had a right to retract, and did retract, the assent which she had informally given; and without her assent there could be no decree for a sale.
    Payment of purchase money is not such a part performance as a Court of Equity will enforce. Sugd. 86, 91; Newl. on Cont. 187; Clinan v. Cooke, 1 Schoal. & Lefr. 40.
    It may be said, that our statute of frauds differs from the English statute, in not containing a distinct provision as to goods, by which it is declared, that sales of goods shall be binding, if earnest money is paid; and from which alone it is inferred, that in England, the sale of real estate is not bound by the payment of part of the purchase money. In this country, however, it may be said, the omission of such a clause destroys the implication, that payment of purchase money does not bind an agreement with respect to real estate.
    To this, it may be answered, that our statute, as far as it goes, being borrowed from the English statute, ought to receive the same construction, where the provisions are similar. But, the true reason is, that the payment of purchase money does not place a man in such a situation, that he cannot obtain compensation. Butcher v. Butcher, 9 Ves. jun. 382; lackson v. Cutright, 5 Munf. 309, (Judge Carr’s opinion;) Sugd. 92; Buckmaster v. Philips, 7 Ves. jun. 341.
    S. Taylor, for the appellee.
    The first objection to this contract is, that it is not in writing, and, therefore, a specific execution could not be decreed.
    *To this objection, two answers may be given: 1. The defendant admits the contract by his answer, as charged in the bill, and neither pleads nor reli.es upon the act against frauds and perjuries. The admission stands in the place of a written contract. “If a defendant does not =ay any thing about the act n his answer, he must be taken to renounce the benefit of it.” Cooth v. Jackson, 6 Ves 39; Croyston v. Banes, Prec. Cha. 208; Symondson v. Banes, Prec. Cha. 208; Symondson v. Tweed, Prec. Cha. 374; Whitchurch v. Bevis, 2 Bro. C. C. 566-7. The plaintiffs do not admit the answer throughout, by resorting to it for evidence, but the matter alledged in the answer, in evidence, must be proved.
    2. The contract in this case was in part performed, and, therefore, it is not within the act. A substantial part of the purchase money was paid, viz: $2,719.23, out of $8,538.94. That this will take a case out .of the statute, is maintained by the cases of Main v. Milbourne, 4 Ves. 721, and La-con v. Mertins, 3 Atk. 1. The depositions of Fowler and Scott, prove, that Moorman attended the survey, assisted in putting up corner stones; and the last witness proves, that Moorman was in possession. Harrison proves, that Moorman offered the land for sale. The commissioner’s report proves, that Moorman rented out the estate for three years. Fixing up corner stones, and taking possession of the estate, could only have been done with a view to the performance of the agreement, and take the case out of the act. Sugd. 83.
    Th,e next objection is, that the plaintiffs did not comply with the contract, and were not bound to comply.
    Answer. If a feme covert, by her agreement, induces a purchaser to part with his money, equity will compel her to perform her agreement. The power of attorney, and deed of Mary Evans, bound her in equity to convey; even if the certificate of privy examination be defective. So, if a wife agrees to join her husband in a surrender and fine, and she dies, equity will enforce the agreement. Bridg. Index, title Baron and Feme, cases 212, 217, .218, 219.
    *It is next objected, that only one of the trustees sold and conveyed, which is not an effectual legal conveyance.
    The answer to this is, that the deed au-thorises either trustee to sell and convey. The legal title was jointly and severally in the trustees, and not jointly merely.
    It is said, that the trustee did not pursue the power vested in him by' the deed, in selling on a credit, and not for cash, as required by the deed. But, the purchaser, with his eyes open, incurred the risque, if there was any, of an objection from the infant heir of the grantor. The sale on a credit was for the advantage of the infant, and, therefore, there was no ground for apprehending an objection. Indeed, she could not object; for, while she might have redeemed the estate, before a sale, the deeds provided that the trustee, in the event of a sale, should sell the estates out and out. The claim of the heir, in the event of a sale, was on the surplus proceeds after paying the debts, and not on the land.
    But, if the trust was improperly executed, it might subject the trustee to the heir, but not the purchaser.
    It has been said, that if Moorman could not compel a specific execution against the plaintiffs, they could not compel a specific execution against him. But, there is no reason for this sort of mutuality. If the vendor can make a title at the time of the decree, the purchaser will be compelled to complete the purchase.
    December 15.
    
      
      Equitable Conversion — What Necessary to. — To convert land into money, the direction to sell must be absolute and unconditional. The will or other instrument must contain an imperative direction to sell the real estate, in order to convert it into money. If the power to sell requires for its execution the request or consent of the parties interested, Itere Is no conversion, unless such request is ma.fle or consent given. Meade v. Campbell, 2 Va. Dec. 672, citing principal case as authority.
      See further, on this subj ect. monographic note on "Conversion and Reconversion” appended to Vaughan v. Jones. 23 Gratt. 444.
    
    
      
      Hushand and Wife — Conveyance by Husband. — See monographic note on “Husband and Wife” appended to Cleland v. Watson. 10 Gratt. 159.
    
    
      
       Specific Performance — Where Purchaser Cannot Get All Contracted for. -The doctrine has been long and ftrmly settled by the authorities in ifingland, that where a vendor contracts to sell a larger interest in real estate than he has a title to, a court of equity will compel him, at the suit of his vendee, to convey to the latter such an estate or interest as the former may have in the premises contracted to be sold. And this doctrine has been fully recognized in this country and especially by the court, of appeals of Virginia. Cady v. Gale, 5 W. Va. 565, citing principal case as authority.
      And, if the purchaser can get substantially what he contracted for, the agreement will generally be enforced at the suit of the vendor. (Italics ours.) Creigh v. Boggs, 19 W. Va. 252, citing principal case.
      See principal case also cited in Clarke v. Reins, 12 Gratt. 109, 114.
      See generally, monographic note on “Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.
    
   JUDGE GREEN,

delivered the following opinion; in which the other Judges concurred:

The deeds of trust of the 28th of April, and 8th of May, 1813, did not convert the lands thereby conveyed, into personal estate, in the contemplation of a Court of Equity, since they did not provide that the lands should be converted out and out, and at all events into money; on *the contrary, the sale was to be made only on the request of C. Clay, or of J. W. Bradley; and, until a sale was actually made, J. W. Bradley, or his heirs at law, might have redeemed the land, upon the payment of the debts secured by the deeds. Whensoever a valid sale should be made, and not until then, the surplus proceeds of sale, after paying the debts, would be personal property, belonging to the person then entitled to redeem, and. transmissible to the personal representatives of tlie person so entitled; and this, whether the contract of sale had been perfected before the death of the party entitled to the surplus, by conveyance or not. For, in such case, a Court of Equity would consider that as done, which ought to 'have been done. Whether the heirs of Mary E. Bradley were entitled to the equity of redemption in the land upon her death, or her personal representative was entitled to the surplus proceeds of the sale made to Moorman, depends upon the question, whether, at the time when the cause was first heard, that contract could ’have been enforced against Moorman, at the instance of that personal representative and the trustees, or against the other parties to the contract, at the instance of Moorman. At that time, (as the agreement of the parties requires the case to be considered,) Evans and wife had retracted, by their answer, their assent originally given to the contract. If Moorman was, in other respects, bound to execute the contract, he could not be bound to do so, unless the parties insisting upon the performance had been able, at the hearing of the cause, to give to or procure for him, such a title as he contracted for. The title of Evans and wife could not be procured, unless they were already bound by the deed which they had executed, and which Moorman had refused to accept, or unless their title would have passed by that deed, if the Court had compelled Moorman then to accept it; or, unless the Court could have compelled Evans and wife to execute a new conveyance, or to deliver that already executed to him. No title passed by the deed, as it never was *delivered. By the refusal of Moorman to accept it, the deed lost its force as a deed; and a subsequent delivery, by order of the Court, without the assent of Evans and wife, would have given it no validity. 119 b. The Court might have compelled Evans to execute the contract by conveying his interest, either at the instance of Moor-man, or of the trustee and personal representative of M. E. Bradley. But, the contract could not be enforced against Mrs. Evans, but with her assent. A conveyance by Evans would have passed the entire interest of his wife, in the event of his surviving; but, if she survived him, only an interest during his life. And, in that case, she would have been entitled to an estate for her life in a moiety of the land. When a purchaser cannot get a title to all he contracted for, if he can get the substantial inducement to the contract, he may insist upon taking, or he may be bound to accept, the title for so much as the other party can give a good title for, with a reasonable compensation for so much as the party cannot make a title to; or, in case the title is defective in a small matter, perhaps a purchaser might be compelled to accept the title, with an indemnity against the defect of title. But, the contingency of Mrs. Evans surviving her husband, and, in that event, becoming entitled to a moiety of the land for her life, was such a defect as could not be compensated, since there was no rule by which its value could be estimated; nor, was it such a defect as the Court ought to have compelled the purchaser to accept an indemnity against. The contract could not, therefore, be enforced by any of the other parties against Mrs. Evans, and was consequently null, and the equity of redemption descended, on the death of M. E. Bradley, upon her heirs at law, subject to Mrs. Kingsberry’s right of dower. - The decree should be, therefore, reversed, and the cause remanded, to be proceeded in accordingly. 
      
      Jui>ge Cabula,, absent from indisposition.
     