
    *Brockenbrough and Taylor v. Blythe’s Ex’ors and Others.
    March, 1832.
    (Absent Brooke, J.)
    Contract to Procure and Sell Infant’s Land — Case at Bar. — A. and B. holding- the legal title of an undivided moiety of land, by purchase and conveyance from C. the title of the other moiety being in D. an infant, and G. having covenanted to sell them the infant’s moiety also, and A. and B. having under C.’s conveyance and covenant, taken possession of the whole, and made improvements; they sell and convey the moiety they had purchased of C. to E. for $12,750; and they covenant with E. to use their best endeavours to get in the legal title of the infant’s moiety, and if procured, to sell and convey that also to E. for $6750; but if the legal title of the infant’s moiety cannot be got in. within a year, then E. shall be at liberty, in their name or his own, to institute any legal pro- . ceedings against their vendor O. for his E.’s own benefit and ad vantage; and if they shall not be able to get in the legal title of the infant’s moiety, then E. shall pay them the first mentioned sum of $12,750 only — A. and B. use their best endeavours to get in the legal title of the infant’s moiety, within the year, by procuring the infant’s friends to make application to the legislature, upon a fair state of the facts, to authorize her guardian to sell and convey it, in which they fail; Held, that after the expiration of the year, the contract of A. and B. with E. with respect to the sale of the infant’s moiety, was at an end; andtho’E. had a right to prefer a bill against 0. and the infant D. for specific execution, in the name of A. and B., yet he was to prosecute that suit for his own benefit, and at his own risque, and as between him and A., and B. was bound to bear the burden of paying the purchase money with interest, to the infant E. upon her conveyance of her moiety, after her full age. in conformity with O.’s contract.
    Vendee In Possession of Land — Purchase Money Unpaid — When Liable for Interest. — A vendee of land let into possession, and the purchase money remaining unpaid, shall pay interest thereon, though the vendor be in default, unless he has not only kept the purchase money idle, but given the vendor notice that he has so kept it.
    Appellate Practice — Specific Performance — Objection to Vendor’s Title — Waiver.—On a bill by vendee against vendor for specific execution, if no objection to the vendor’s title be made in the court of chancery, in any form, he cannot be heard to make such objection in this court.
    In 1813, Joseph Blythe of South Carolina, being the owner of the equitable estate of an undivided moiety of two parcels of land in the county of Monroe, Virginia, one containing about 770 acres called The Red Springs, and the other called Green-woods adjoining the first, and *containing about 200 acres, which moiety Blythe had purchased at a sale made by commissioners of the superiour court of chancery, under authority of a decree of that court, but the commissioners had not yet made a conveyance thereof to him; and the other undivided moiety of those lands, being the property of Elifca Young, also of South Carolina, infant heiress of Thomas Young deceased — Blythe, by Erasmus Stribling his agent, entered into articles of agreement with John Brockenbrough and Thomas Taylor of Richmond, Virginia, dated the 29th September 1813, whereby Blythe covenanted to sell Brockenbrough and Taylor, the whole of the lands, and to procure a proper conveyance of his own undivided moiety thereof, from the commissioners of the court of chancery, and to execute himself, a conveyance to them, with general warranty, of the other undivided moiety which belonged to Miss Young — And Brockenbrough and Taylor covenanted on their part, to pay Blythe 13,500 dollars, for the whole of the lands; that is to say, the sum of 6750 dollars, on receiving a regular conveyance from the commissioners of the court of chancery, of Blythe’s undivided moiety; and the residue in four equal instalments of 1687 dollars 50 cents, each, on the 1st October 1814, ’15, ’16 and ’17, with interest on the two last instalments from the 1st October 1815 — but it was covenanted, that none of these deferred payments should be demanded by Blythe, until he should either make a good conveyance of Miss Young’s moiety or give good and sufficient security for the conveyance of the title of that moiety when she should attain the full age —And Blythe covenanted to put the vendees in possession of the whole of the lands on the 1st October 1813.
    The commissioners of the court of chancery made a conveyance of Blythe’s undivided moiety to the vendees; upon which they paid the moiety of the purchase money, 6750 dollars to Stribling, Blythe’s agent in Virginia, and received possession of the whole of the lands in October 1813, according to the agreement. But Blythe neither *conveyed (for, indeed, he could not convey,) Miss Young’s moiety, nor took any steps to enable him to convey it, nor gave security for the conveyance of the title thereof, when she should attain to full age.
    The Red Springs was a watering place, whither company might resort for health or pleasure in the summer; and Brocken-brough and Taylor, shortly after their purchase, expended in improvements (as they allege) 4500 dollars.
    By articles of agreement, dated the 31st May 1815, between Brockenbrough and Taylor of the one part, and Philip Rogers of the other, — reciting the articles of September 1813 between Blythe and them, and what had been done in execution thereof, — ■ Brockenbrough and Taylor covenanted to sell Rogers their interest in the land's, for the sum of 12,750 dollars — And it was covenanted that the said purchase money, when paid, should be full satisfaction for the [then] present title of Brockenbrough and Taylor in the said lands; that when the payment thereof should be completed, they should convey to Rogers, the legal title they acquired by the conveyance of the commissioners of the court of chancery above mentioned (the title, namely, of Blythe’s undivided moiety) ; that they should use their best endeavours to procure the legal title of the other moiety (Miss Young’s) and if the title thereof could be procured, they should convey the title of that moiety also to Rogers, and he should pay them for the same, the further sum of 6750 dollars; but that, if the legal title of Miss Young’s moiety could not be procured by them, within one year from the date of the arti-' cles, then Rogers should be at liberty, in their name or his own, to institute any legal proceedings against Blythe, for his own benefit and advantage; that, in case they should not be able to procure the legal title of Miss Young’s moiety, Rogers should pay them the first mentioned sum of 12,750 dollars only, and they should not be bound to convey him the title they then held in the other (Blythe’s) moiety, until he should complete the payment of *that sum; and that, in case they should succeed in procuring the title of Miss Young’s moiety, they should retain the title of the whole of the lands, until Rogers should complete the payment of both the sums of 12,750 dollars, and 6750 dollars, as a security for the whole purchase money, 19,500 dollars. And it was further covenanted, that, as Brockenbrough and Taylor had paid Stribling, Blythe’s agent in Virginia, 6750 dollars, for Blythe’s moiety of the lands, as that moiety was yet in the agent’s hands, and as it might be thought proper to attach the same in his hands, in order to secure a full performance on Blythe’s part, of his agreement with Brockenbrough and Taylor of September 1813, or damages for his non-performance thereof, — any proceedings might be had for that object, and such proceedings should be for the benefit of the party entitled thereto, according to the purport and intent of this agreement.
    Rogers received immediate possession of the whole of the lands, and, thenceforth, continued to hold them, and to enjoy all the profits. He paid Brockenbrough and Taylor the first mentioned sum of 12,750 dollars, and they conveyed to him the undivided moiety, which had been conveyed to them by the commissioners of the court of chancery ; that is, Blythe’s moiety. They also, immediately, suggested to Blythe and Miss Young’s friends in South Carolina, that the only way in which a conveyance of her title in the other moiety could be effected, during her infancy, ‘was by authority of a special act of assembly, passed for the purpose. And, in consequence of that suggestion, a petition on behalf of Miss Young, of her mother who was entitled to dower of her moiety, the administrator of her father, and Blythe, was presented to the legislature at the session of 1815-16 (through the agency of Brocken-brough and Taylor) stating Miss Young’s title to an undivided moiety of the lands; that the Red Springs were mineral waters; that the value of the property depended, chiefly on improving it as a watering place ; and that her mother, who was her natural guardian, *and the administrator of her father, did not consider themselves authorized to expend money belonging to her, in such improvements as were necessary to make this property profitable : and therefore praying the legislature, by special act to be passed for the purpose, to authorize the sale and conveyance of her interest in the lands in question. In consequence of this petition, a bill was passed by the house of delegates, authorizing the guardian or guardians, who should be duly appointed for Miss Young, according to the laws of -South Carolina, to sell and convey her interest in the lands. But this bill was rejected by the senate. Thus, Brock-enbrough and Taylor failed to procure a conveyance of the legal title of Miss Young’s moiety, in the only way in which it was possible to procure such conveyance, within the year next after the date of their agreement -with Rogers; and, thenceforth, they regarded their agreement with Rogers, in respect of that moiety, as at an end.
    Meantime, in July 1815, a subpoena was sued out of the superiour court of chancery of Staunton, in the name of Brockenbrough and Taylor against Blythe and Stribling, his agent in Virginia, to attach in Strib-ling’s hands, the 6750 dollars which Brock-enbrough and Taylor had paid for Blythe’s moiety of the land, till Blythe should comply with his contract with respect to the other (Miss Young’s) moiety. It did not distinctly appear who sued out this process Brockenbrough and Taylor were apprised of it, and made no objection. Blythe-died in 1817, no proceedings having been had on the foreign attachment in chancery, during his life.
    In May 1819, Rogers, without the knowledge or consent of Brockenbrough and Taylor, or either of them, caused a bill to be exhibited in their names, against Blythe’s real and personal representatives, Stribling, the agent of Blythe, and Miss Young in the superiour court of chancery of Staunton —setting forth the contract of September 1813, between Blythe and the plaintiffs, Brockenbrough and Taylor, the conveyances of Blythe’s undivided moiety of the lands to *them, their payment of 6750 dollars to Stribling, his agent, and the expenses they had incurred in improvements: alleging, that Blythe had died, without having in any way complied with his contract, with respect to Miss Young’s moiety; that the plaintiffs had thereby been prevented from improving the property as a watering place, to the degree of which it was susceptible, and so had been disappointed of the profits which they expected, and of the chief advantage which induced them to make the purchase; that Miss Young was still a minor, residing in South Carolina; and that her guardian was claiming her moiety, and threatening a suit for it; a measure which would be very injurious to the plaintiffs, since it would deprive them of the benefit of the improvements they had made, and would render the moiety which would be left them of comparatively little value, the lands being only valuable in one entire parcel, on account of the-mineral waters, and so not admitting of convenient partition. Therefore, they expressed their earnest desire, that Miss Young’s title should be conveyed to them; called upon her to disclose the nature of her title ; and prayed, that Blythe’s representatives might be decreed to procure and convey her title; or, if that could not be done, that the court would direct an issue to ascertain the damages the plaintiffs had sustained, by reason of Blythe’s failure to perform the agreement with respect to Miss Young’s moiety, and that they might be indemnified out of the money they had paid to Stribling for Blythe, which was still in Stribling’s hands.
    In this bill, there was no mention of, or allusion to, the sale made bj' Brockenbrough and Taylor to Rogers, or the fact that he was, and had been since 1815, in possession of the lands, enjoying the whole profits.
    The representatives of Blythe put in their answer in 1820. They denied that Strib-ling had any authority from Blythe, to make the contract with Brockenbrough and Taylor, of September 1813, so far as it respected the sale of Miss Young’s moiety of the land; and if he had such authority, they said, the purchasers had retained . the purchase money *of that moiety in their own- hands, which was an ample security for the fulfilment of Blythe’s contract in that particular; and if Miss Young should refuse to convey her moiety, when she should attain to full age, the purchase money contracted to be paid for it, would be the exact measure of damages which the purchasers would sustain by the breach of the contract. Therefore, they claimed the whole of the money in Strib-ling’s hands.
    No steps were taken to bring the suit to an early hearing.
    Miss Young attained to full age in 1823. And, in 1824, she put in her answer, in which she said, that she was willing to ratify the contract made by Stribling with Brocken-brough and Taylor, so far as it respected her moiety of the lands, and to convey the same to the purchasers; and that she would execute a conveyance, and transmit it to her counsel in this cause, to be exhibited to the court, and to be delivered to the purchasers, so soon as they should pay the purchase monej' with interest.
    She accordingly executed the conveyance, and it was filed in the court of chancery.
    Neither Miss Young’s title to a moiety of the lands, nor the particulars of Blythe’s title to the other moiety, were shewn and regularly deduced: and upon the documents that were filed in the cause, the title, par-ticularlj' as to the parcel called Greenwoods, did not appear to be perfectlj' clear. But the title was nowise questioned in the pleadings, or at the hearing.
    As to the defendant Stribling, it appeared, that he had, as Blythe’s agent, received from Brockenbrough and Taylor, in July, 1815, the sum of 6750 dollars, in full of the purchase money for Blythe’s moiety, which was immediately attached in his hands, and tnat he had paid it into court, soon after the filing of the bill, in 1819. And the only question was, whether he was bound to pay interest in the interval between 1815 and 1819.
    In July 1825, the court of chancery decreed, that upon the plaintiffs, Brocken-brough and Taylor, paying to Miss *Young the sum of 6750 dollars with interest from the times appointed for the payment of the instalments thereof by the agreement of September 1813, the deed executed by her, conveying her moiety of the lands to them, should be delivered to them; and, in case they should fail to pay the same to her within six months, the marshal of the court should sell the whole of the lands, at public auction for cash, and bring the proceeds-of sale into court, to be disposed of by future order — and that Stribling should pay Blythe’s representatives, the sum of 6750 dollars which he as Blythe’s agent, had received of the plaintiffs on account of the purchase money of Blythe’s moiety, with interest from July 1815, when he received it.
    After this decree was pronounced, Brock-enbrough and Taylor exhibited their bill against Blythe’s representatives, Miss Young and Rogers; setting forth the contract between them and Rogers of the 31st May 1815, and the proceedings and decree in the first mentioned suit prosecuted by Rogers in their names; and alleging, that they had no knowledge whatever of the proceedings in that suit, till after the decree made therein, and had taken no part in the prosecution of it; Rogers was the real, they only nominal plaintiffs in that cause. That, having by their contract with Rogers, covenanted to use their best endeavours to procure the legal title of Miss Young’s moiety of the lands, and, if the title thereof could be procured, to convey that moiety to Rogers, for which Rogers was to pay them 6750 dollars, in addition to the 12,750 dollars which he was to pay them for Blythe’s moiety; but, if they could not procure the legal title of Miss Young’s moiety within a year after the contract, Rogers should be at liberty, in their names or his own, to institute any proceedings against Blythe [only] for his own benefit and advantage; and, in case they should not be able to procure the title of Miss Young’s moiety, Rogers should pay them only the 12,750 dollars, the purchase money stipulated for Blyth.e’s moiety; — they had used their *best endeavours to procure the title of Miss Young’s moiety, in the only way in which it was possible to obtain it, namely, by procuring the petition to the legislature at the session of 1815-16, praying a special act to authorize her guardians to sell and convej' the same; and when they failed in that effort to procure a conveyance of her title, within the year, the contract between them and Rogers, according to the true construction thereof, so far as it related to the sale of Miss Young’s moiety, was at an end: théy had no longer any right to demand of Rogers the purchase money for that moiety, nor he to require them to procure and convey the title thereof to him. That, though they covenanted with Rogers, that, in case the title of Miss Young’s moiety could not be procured, he might either in their names or his own, institute any legal proceedings against Blythe, yet such proceedings were to be for his own benefit and advantage; consequently he was to incur anj' responsibility which those proceedings should impose on the plaintiffs; he had no right to institute such proceedings in their names, for his own benefit, and to throw the responsibility on them. That they covenanted, that Rogers might institute such proceedings against Blythe only, not against Miss Young also; they had no right to demand of her specific execution of Blythe’s contract as to her moiety, nor had she any right to demand specific execution thereof from them ; she was only entitled to demand her moiety of the lands in question, and the profits of her property, from Rogers, who held the property, and had received the profits. That, consequently, the proceedings which Rogers instituted and prosecuted in their names, were wholly unauthorized. That, by sinking the fact of his purchase of the property from them, and the terms of the purchase, he had contrived to subject them, instead of himself, to Miss Young’s demand; and, by calling on her, in their names, for specific execution of Blythe’s contract, had, in effect, made a purchase of her moiety from her, which they never made. And that Rogers now insisted, that, though he had enjoyed the whole profits of the whole *property since May 1815, when he received possession, yet he Was only bound by his contract with Brockenb-ough and Taylor, to pay them the principal sum of 6750 dollars for Miss Young’s moiety, and they were bound to pay Miss Young that sum and all the interest which had accrued thereon, and which the chancellor had directed them to pay her; whereas, they insisted, if Miss Young was entitled to demand interest from the purchasers (which, under the peculiar circumstances of the case, they denied) Rogers was the person bound to pay it. Therefore, they prayed the court to suspend and inhibit, by injunction, all proceedings on the decree in the other suit, prosecuted in their names by Rogers, against Blythe’s representatives and Miss Young; and to declare and decree, that, as Rogers was the real plaintiff in that cause, and was the only person justly bound to pay the purchase money to Miss Young for her moiety, and whatever interest was justly due thereon, he and not Brockenbrough and Taylor, should pay the same to her; and general relief.
    The injunction was awarded.
    Miss Young answered, that she had consented to ratify Blythe’s contract of September 1813, for the sale of her moiety of the lands, only upon condition, that the purchase money thereof should be paid to her, with interest from the time stipulated by the contract; and that she would part with her property on no other terms.
    Blythe’s representatives, in their answer, insisted, that they had a right to the money which had been paid Stribling for Blythe’s moiety, whatever might be the result of the controversy as to the other part of the subject.
    Rogers, in his answer, insisted, that he had a right, by the terms of the contract of May 1815, between him and Brockenbrough and Taylor, to prosecute the suit, in their names, against Blythe’s representatives and Miss Young, for a specific execution of Blythe’s contract of September 1813, according to the terms of that contract. That whatever duty a specific execution thereof "Would impose on *Brocken-brough and Taylor, they were bound to perform it: if Miss Young was entitled to interest on the purchase money oí her moiety, they were bound to pay it; for, by their contract with Blythe, they had stipulated to pay the interest as well as the principal of the purchase money for Miss Young’s moiety, when the title thereof should be conveyed to them, after her attainment to full age. And that he, Rogers, by his contract of May 1815, was only bound to pay Brockenbrough and Taylor, the principal sum of 6750 dollars, when they should procure and convey to him Miss Young’s moiety. He admitted, that he had been in possession of the whole of the lands, enjoying the whole profits, from May 1815, the date of his purchase; but he insisted, that he was not bound on that account, any more than by his contract, to pay interest; for the uncertainty of the title had rendered it impossible to improve the property without gross imprudence, and so had in a great measure disappointed him of the profits.
    The chancellor, upon the motion of Blythe’s representatives a->d Miss Young, dissolved the injunction, which had been awarded to Brockenbrough and Taylor in this suit, to suspend and inhibit the execution of the decree in the other suit. And from this decree Brockenbrough and Taylor appealed to this court.
    The cause was argued here, by Wickham and Leigh for the appellants, by Johnson for the appellee Rogers, and by Slanard for Blythe’s representatives and Miss Young.
    I. The counsel for the appellants examined the contract between them and Rogers of Ma3r 1815, and insisted, that the just construction and effect of that contract, was, that Brockenbrough and Taylor should sell Rogers the moiety they had bought of Blythe, of which they had acquired the legal title, for 12,750 dollars ; and that they should endeavour to get in the title to Miss Young’s moiety, within the ensuing year; if they should succeed in getting the title of *that moiety within the year, they should sell and convey that also to Rogers, for 6750 dollars ; if they should fail to get in Miss Young’s title within the year, their contract with Rogers, in respect of her moiety, should be at an end; and he should pay them the stipulated price for Blythe’s moiety, 12,750 dollars, only. If they should fail to get in Miss Young’s title within the year, and if, in consequence of such failure, their contract to sell Rogers her moiety should be at an end, they, indeed, authorized Rogers to institute proceedings against Blythe, in their names, but for his own benefit, not for their’s; and, as he was to have all the benefit, they were not to incur any reciprocal duty or obligation which might result from the benefit that Rogers should derive from such proceedings. They had a right to call upon Blythe, for a specific execution of his contract to procure a conveyance of Miss Young’s moiety, or to give them good and sufficient security that a conveyance thereof should be made when Miss Young attained to full age, or for damages for his breach of the contract in that particular; and this was the right which they authorized Rogers to assert against Blythe, in their names. But they had no claim whatever against Miss Young; and, therefore, did not pretend to authorize Rogers to assert any claim, in their names, against her. They had no right to call upon Miss Young for a specific execution of Blythe’s contract to sell them her land; and, by consequence, she had no right to call upon them for a specific execution of their contract with Blythe to purchase it; for there should be no specific execution, where the remedies are not mutual; Watts v. Kinney, ante, 272. Rogers, by exhibiting the bill against Miss Young, asking of her specific execution of Blythe’s contract for the sale of her property, in truth, proposed and made a bargain with her, for himself. And, as he exhibited the bill in the names of Brockenbrough and Taylor, without their knowledge, and without any manner of authority from them, Miss Young had no right to hold them to a specific execution of their contract with Blythe for the purchase of her moiety, because ^Rogers, in their names, thought proper to propose specific execution. That bill of Rogers ought to be considered as Roger’s bill, to all intents and purposes; not Brockenbrough and Taylor’s, to any purpose whatever. As they had no claim against Miss Young, and 'she had none against them, Rogers could not give her a claim against them, by asserting a claim in their names against her. The only right she had, was, to demand her property from the person who held it, and the profits of it from him who had received them. She had no claim to purchase money for her property, and interest upon it; because she had never sold it. But if Rogers thought proper, in order to keep the property, and to exempt himself from an account for profits, to propose to take the land upon the terms of Blythe’s contract with Brockenbrough and Taylor, as he did by his bill (for it was his bill), and she thought proper to assent to those terms, Rogers, and he alone, was bound to paj' her the purchase money. If Rogers had exhibited his bill against Blythe’s representatives and Miss Young, in his own name, instead of Brockenbrough and Taylor’s; or, if in the bill he exhibited in their names, he had disclosed the fact and the terms of his purchase from Brocken-brough and Taylor ; and, in either case, had asked specific execution, for his own benefit; the chancellor should, in that suit, have imposed on him all the duties which resulted from a decree of specific execution at the instance of the purchaser, and ought to have imposed no duty whatever on Brocken-brough and Taylor: and therefore, when the truth was disclosed in this suit, he ought to have so corrected the decree in the other suit, as to exonerate them from the performance of any duty, and to impose on Rogers, who alone ought to bear it, the whole duty to be performed.
    The counsel for Rogers argued, that the just construction and effect of the contract between him and Brockenbrough and Taylor, was, — that they sold him the whole of the lands in question; the moiety which had belonged to Blythe, and of which they had acquired the legal title, for *12,750 dollars, and that which belonged to Miss Young, and which Blythe sold them, and bound himself to have conveyed to them, for 6750 dollars: that Brockenbrough and Taylor were to get in the title of Miss Young’s moiety if they could, and then to convej' it to Rogers for the stipulated price; if they could not get it in, within the year, they authorized Rogers to institute proceedings in their names against Blythe, for his own benefit; and if by such proceedings he could get in the title of Miss Young’s moiety, no matter when he should succeed in getting it in, he was to pay them 6750 dollars for it: that the authority to institute proceedings in their names, against Blythe, was an authority to exhibit a bill against him for a specific execution of his contract with them for the sale and conveyance of Miss Young’s moietj'; and as Miss Young was a proper and necessary party to such a bill, it was an authority to exhibit a bill, in their names, against her as well as Blythe: that the limitation of a j'ear from the date of the contract, was the limitation of the term at which Brockenbrough and Taylor’s duty to make endeavours to get in Miss Young’s title, was to cease, and Rogers’s right to institute proceedings to get it in, to commence; not the appointment of a time, at which, if Miss Young’s title was not .previously procured, the contract with respect to the sale of her moiety by Brockenbrough and Taylor, was to be at an end; and that, therefore, the suit which Rogers had brought, in the names of Brockenbrough and Taylor against Blj'the’s representatives and Miss Young, was authorized by their contract with him; he had a right to demand specific execution of Blj'the’s representatives and Miss Young, in their names; they were bound to perform the duty which the vendors had a right to demand of them as purchasers asking specific execution, according to their own contract? and Rogers was onlj' bound to perform what he had covenanted to perform as a purchaser from them, namely, to pay them the principal sum of 6750 dollars, according to his contract with them.
    II. The counsel for the appellants, and for Rogers, contended, that, though Brockenbrough and Taylor had held the possession from September 1813 to May, 1815, and Rogers had held the possession ever since, j'et Miss Young was not entitled as against them, because Blythe would not have been entitled to interest on the purchase money of her moiety They thought, that the english doctrines on this subject, however equitable there, could not be applied in this country, without producing the greatest hardship and injustice; since here, the rents of real estate, rarely if ever, equalled the interest of the purchase money ; the rents of unimproved lands were almost nothing; and any uncertainty in the title, was a bar to all permanent improvements, without which no protit could be derived from them. The present case was very peculiarly circumstanced. Blythe, being tenant in common with Miss Young, contracted to sell and convey, not only his own moiety, but a good title in her moiety also, or to give good and sufficient security that it should be conveyed, when she should attain to full age. He did neither. It was impossible for the purchasers to improve the property, with any safety to themselves, so long as they had no conveyance of Miss Young’s moiety, nor any security that a conveyance would ever be made. Yet it was agreed on all hands, that ' the value of the property', its capacity to y'ield profits, depended, chiefly, on improving it as a watering place: this was stated in the petition to the legislature presented by Miss Young’s friends in 1815-16, and assigned as the reason why authority' should be given to her guardian to sell her interest in it. The purchasers were thus prevented from persisting in the improvements necessary to render the property profitable, and so deprived of the chief benefit of their purchase, during the ten years of Miss Young’s minority. Their duty' to pay interest on the purchase money could only arise from the full enjoyment of the profits. Indeed, Miss Young ought not to be considered as having been, at anytime, out of possession of her moiety of the land; for the purchasers being entitled xby purchase from Blythe to his undivided moiety, were tenants in common with Miss Young; their possession was that of tenants in common, and no wise adverse to her’s ; and as to her moiety, they ought not to be regarded as vendees in possession. But if any body ought to be charged with interest on the purchase of Miss Young’s moiety', it was Blythe. For he contracted to sell Miss Young’s moiety, and to convey the title, or to give good security for the conveyance of it; and bv his breach of his contract in that respect, he, in effect, put it out of the power of the vendees to improve the property to the degree of which it was susceptible, and to enjoy the full profits of it. At any rate, Blythe’s estate should be responsible to the purchasers, for so much as the amount of the interest may have exceeded the actual profits.
    The counsel for Blythe’s representatives and Miss Young, adverting to the contracts between Blythe and Brockenbrough and Taylor of September 1813, said, it was obvious, that Blythe sold the whole of the lands, Miss Young’s moiety as well as his own ; that the purchase money of her moiety was to be paid in instalments with interest; and that Blythe’s covenant was, that until he should convey Miss Young’s moiety, or give security that it should be conveyed when she should attain to full age, the purchasers should retain the purchase money. If he had given the security, he would have been entitled to demand the instalments, as they fell due; as he did not do so, they had a right to retain the purchase money; which was their security, and security exactly adequate. Meantime, he put the vendees in full possession of the whole lands. It could hardly be doubted, that if on Miss Young’s attainment to full age, Blythe had purchased her title of her, and tendered it to the vendees, he would have a right to claim specific execution of them; and her ratification of Blythe’s contract, upon condition that she should receive the benefit of it, and the conveyance of her interest directly to the vendees, came to the same thing as if she had conveyed to Blythe, to enable *him to perform the contract, and he had tendered a conveyance to the vendees, and claimed specific execution. That Blythe, and, by consequence, Miss Young ratifying his contract, was entitled to interest on the purchase money of her moiety, resulted from the express terms of the contract of September 1813, and from the best settled principles of law. Powell v. Martyr, 8 Ves. 146; Fludyer v. Cocker, 12 Vcs. 25; Hughes v. Kearney, 1 Scho. & L,ef. 132, 4; Burnell v. Brown, 1 Jac. & Walk. 168; Selden v. James, 6 Rand.. 465. Therefore, as between Brockenbrough and Taylor, and Blythe’s representatives and Miss Young, the chancellor’s decree in the first suit was perfectly right. The vendor had no concern in the controversy between his vendees, Brockenbrough and Taylor, and their vendee Rogers; and a decree just with respect to them, ought not to be suspended till their controversy with Rogers should be determined. And, in fact, there was no decree directing Brockenbrough and Taylor to pay any money; the decree was, that if they should not pay the money, the lands should be sold; so that the decree, in its direct operation, affected only Rogers, who held the subject, and they had no right to complain of it.
    III. Johnson objected, that it did not appear that the vendors, especially Miss Young, had any good title in the lands, which a purchaser should be bound to accept; and as to the parcel called Greenwoods, the title appeared defective or doubtful.
    Stanard answered, that there never had been anj' objection made to the title, by the pleadings or otherwise.
    IV. It was objected to the decree in the first suit, that it authorized and directed the sale of the whole of the lands, to pay the purchase money of Miss Young’s moiety thereof: that her own moiety only ought to be held subject to her claim.
    *It was answered, that Blythe’s contract was one and intire, to sell the whole of the lands; and that he had a lien on the whole of them for the purchase money of each and every part.
    
      
      Appellate Practice — Objection in Lower Court— Waiver. — in Handly v. Snodgrass, 9 Leigh 493, it is said: “Courts have sometimes said that the counsel shall not be permitted to raise in the appellate court, for the first time, a point which, if made in the court below, might have been obviated. 18 Johns. Rep. 559. we follow this principle frequently, in rejecting objections to accounts where there has been no exception, and in other cases. Brockenbrough v. Blythe, 3 Leigh 619. And though it is not followed in all cases, yet I am of opinion that in cases of this description the principle is peculiarly appropriate.”
    
    
      
      Speclfic Performance. — See monographic note on "Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.
    
   CARR, J.

In the examination of this case, as between Blythe and his vendees, Brockenbrough and Taylor, I shall put out of view their contract with Rogers, and shall consider it, as if they had continued to hold the lands, and had exhibited the bill in the first suit, and prosecuted it to a decree: I shall so consider the case, in order to simplify it, and because it can do no injustice to Brockenbrough and Taylor; since their contract with Rogers could no wise vary Blythe’s rights; and, as to him, they must be considered as having exhibited the bill that was filed in their names, and as having prosecuted that suit. From the date of Blythe’s sale, in September 1813, he took no step to perform his contract in respect of Miss Young’s moiety; made no conveyance thereof to the vendees, with warranty ; gave no security that her title should be conveyed when she should attain her full age. The subpoena against him was sued out in .July 1815. The bill was filed in 1819. it made Blythe’s representatives and Miss Young parties defendants: it contained an earnest call for a specific execution of Blythe’s contract, as to Miss Young’s moiety; and it was only incase Blythe should be unable to execute it specifically, that it asked damages for his breach of contract. Miss Young came of age in 1823, and put in her answer in 1824; in which, while she denied her obligation to do so, she consented to convey her title, upon receiving the purchase money with interest, which by the contract of September 1813, was to be paid to Blythe; and she filed a conveyance in court, to be delivered to the vendees, . upon their paying the purchase money with interest. The chancellor’s interlocutory decree in that suit, pronounced in July 1825, was a decree for specific execution.

*The principal objection to that decree, was, that interest was thereby given to Blythe (or, which is the same thing in effect to Miss Young), from the dates from which the instalments were to bear interest by the contract of September 1813, though Blythe had made no conveyance of Miss Young’s'moiety with warranty, nor given security that the title should be conveyed, nor procured Miss Young’s title till 1824, but had in these particulars, broken his contract, to the serious injury of the vendees. It is true that Blythe’s contract binds him to make a deed to the vend-ees, with general warranty, for Miss Young’s part of the land: but it names no time for doing this. It .was well known, that the title was in her, and that she was an infant: it could not be the meaning of the parties, that Blythe should make the deed before he got the title; this was not the security the parties contemplated; that was, to hold the purchase money until the deed should be made, or until Blythe should give sufficient security for a good title, when Miss Young attained her age. The vendees took possession of the property under the contract, and have never been disturbed in it. They say, indeed, that they have suffered damages, by being prevented by the uncertainty of the title, from making the various improvements necessary for a watering place, and reaping the golden harvest, which would have followed: but we have no evidence upon this point; afid these speculative damages are the most difficult of all things to be estimated. Perhaps, they might have made thousands; perhaps, they might have sunk every thing. But this is certain, thejr have had possession of more than 900 acres of land; some of it among the most fertile I have ever seen. The record tells us, this land adjoined the Sweet Springs, along established watering place; which, we may fairly presume, would furnish a read3r mar-, ket for the products of the soil. Be all this as it may, the vendees have not brought an action for damages: they have filed their bill for a specific execution, praying that the title, if it can possibly be had, may be decreed to them; and it *is only in case they cannot get this, that damages are asked for. This suit they prosecute in such a lingering way, as n'ot to bring ii to hearing till 1824; waiting (it would seem) till Miss Young (whom, without legal or equitable claim upon her, they had made a party) should come of age. She attained her age in the latter part of 1823, and before the hearing, her answer is filed agreeing to ratify the contract, and tendering a deed, to be delivered, on receiving her purchase money and interest. To this deed there is no exception taken, no reference asked as to title: and the question is, was the chancellor wrong, under these circumstances, to decree interest on the purchase money? It is most clear, that against Miss Young, he could make no decree, except such as she assented to; and the plaintiffs knowing this, and still making her a party, and praying for her title, must be considered, as consenting to take it, on such terms as she should prescribe. But independently of all this, it is the settled rule, that a vendee, in possession of both land and purchase money, coming for a specific execution, shall pay interest, even though the vendor has been in default, unless he has not only kept the purchase money idle, but has given the vendee notice that it was so. I think the rule a sound one, and applicable to this case. There was no error then in decreeing interest.

But it was objected, that the decree directs the sale of the whole of the land, unless the purchase money should be paid within a given time. This objection would seem to come with a bad grace from vend-ees, who have insisted on the specific execution of the contract. Thejr could only expect to get the title which they have prayed for on paying for it. The purchase money was a lien upon the whole land.

Thus I am of opinion, that, as this case appeared upon the record in the first suit before the chancellor, his decree was right.

But, before the institution of that suit, other circumstances had occurred, other transactions had taken place; *and these have been made the subject of the new bill filed by Brocken-brough and Taylor, seeking to suspend the decree in the first suit, and, so far as it affects them, to set it aside. And we are now to consider the case in this new aspect. 11

In this bill of Brockenbrough and Taylor, — after setting forth their contract with Rogers of May 1815, and the proceedings and decree in the first suit, and alleging that that suit was brought and prosecuted by Rogers, in their names, without their knowledge or consent, — they charge Rogers with misconduct in several respects: 1. in bringing the suit in their names alone, concealing from the court every trace of his contract with them, his possession of the property, and enjoyment of all its profits, making himself no party, and so stating the case, as to make them appear still the owners and possessors of the property: 2. in making Miss Young a party, against whom they pretended no claim whatever: and 3. in procuring a decree for her title, and putting upon them the burden of paying the purchase money of her moiety with interest, whereas Rogers was the person bound to pay both, and the person against whom the court would have decreed such payment, if he had made himself a party and fairly stated the whole case. Therefore, they prayed, that the decree in the first suit should be set aside, so far as it affected them, and that the execution thereof should be suspended and inhibited by injunction. The injunction was awarded; but the chancellor afterwards dissolved it; and it is from this order of dissolution in this cause, that the appeal was taken to this court. Was the injunction properly dissolved?

It was said that Blythe’s representatives and Miss Young, who are in pursuit of the money justly due to them, ought not to be delayed by the disputes between the plaintiffs and Rogers. But it must be remembered, that those parties have ample security, and are getting interest on their money. We must remember, too, that 1 :the constant aim of a court of equiij', is, to do complete justice, by deciding *upon and settling the rights of all persons interested in the subject of the suit to make the performance of the order perfectly safe to those who are compelled to obey it, and to prevent future litigation:” Mitf. Plead. 144. And we may well say with this court, in Lane v. Tidball, Gilm. 133, that, “compared with these objects, a little delay is deemed of no account, in a court of equity.”

It was said also, that the original decree did not touch Brockenbrough and Tajfior, and that therefore the dissolution could not hurt them. I cannot assent to this position : I think the decree does touch them, and very nearly too. The decree, to be sure, does not say, in so many words, that they shall pay the purchase mouej : but it says, that upon their paying the purchase money with interest, the title deeds shall be delivered to them, and that, unless thqy pay it by a certain day, their lands (as the chancellor supposed them) shall be sold. Is not this, in substance, a decree against them for the money? Suppose the marshal sold these lands for half the purchase money due; upon the confirmation of his report, would not an execution issue at once against Brockenbrough and Taylor? I doubt, whether even an order of the court would be necessary, but if so, it would be an order merely in execution of the decree.

But I place this point upon broader ground : I think Rogers was clearly wrong in bringing this suit in the name of Brockenbrough and Taylor solely, and concealing from the court his purchase of the land, and possession under it. I think this omission has operated injuriously to them ; and that they had a right, by such a bill as they have filed, to have it reheard and corrected; and this without waiting till an execution had issued against them. I have already stated that the great object of equity is, to settle the rights of all persons interested, and ■ ¡ ■ i ■ > ■ l - l cut up future litigation. Another ground of rehearing laid down in the books, is, where any facts materially affecting the case have been kept hack. Suppose Rogers had made himself a joint plaintiff with Brockenbrough and Taylor, or made himself plaintiff, and them *and the other parties defendants; had stated his own contract, and his possession under it; and had prayed a specific execution: what ought to have been the decree of the court? Clearly, I think, that Rogers should pay the 6750 dollars of purchase money due, with interest; that upon such payment, Miss Young’s conveyance should be delivered to him; that upon his failure to make such payment by a given day, the land should be sold to raise the purchase money; and that, if that did not bring the amount, Rogers and Brockenbrough and Taylor should be personally liable to the vendors. Can it be doubted, that such a decree against Rogers would be correct? I cannot imagine the ground of such a doubt. He had bought of Brockenbrough and Taylor, the moiety of the land to which they had the legal right; and as to the other halt, he had bought their rights, their contract; and on the terms of paying the same sum, which they were to pay on getting a title: he had enjoyed possession under the contract, and now came into equity for the litle: must he not pay the purchase money with interest. When he was asking the execution of one part of the contract, must he not execute the other part, which he had taken upon himself? This seems to me the clearest equity in the world. All the remarks which I made on this part of the subject, as between Blythe and Brockenbrough and Taylor, apply emphatically to Rogers— because, instead of pursuing Blythe for damages, he has gone out of his way, and out of the power given him by Brockenbrough and Taylor, in making Miss Young a party, and praying for her title; as there was no obligation whatever on her, she had a right to make her own terms; and, surely, Rogers had no right to throw any part of this burden off his own shoulders.

It was objected, that there was not a perfect title to the lands. The answer given was a very satisfactory one; that there was not the slightest objection to the title in the bill, or any of the pleadings; that the parties had not put it in issue, and could not now raise the objection. When *Miss Young and the representatives of Blythe filed their answers, setting out their titles, and tendering their deeds-; if Rogers had doubted on the subject, he might have asked a reference of the title; and before the master, it might have been shewn, that the defects now imagined, did not exist; the evidence might have been furnished there in a moment, which not being required, may not appear in this record. The chancellor expressly predicates his decree upon the fact, that no exception was taken to the deeds filed. Nay more, Rogers in his answer to Brockenbrough and Taylor’s bill (an answer filed after a full disclosure of the title) makes no objection to the title, nor to any thing else, except the payment of interest on the purchase money. That, in truth, is the only point in difference between him and Brockenbrough and Taylor. Surely, we ought to suffer parties to judge for themselves, and say with what titles the3r will be satisfied.

I am therefore of opinion, that the order dissolving the injunction was erroneous, and that it ought to be reversed, the injunction reinstated, and the cause remanded, to be proceeded in according to the principles now declared.

CABEUU, J.

I am of the same opinion. If we were now deciding this case as on an appeal from the interlocutory decree of July 1825, in the first suit of Brockenbrough and Taylor against Blythe’s representatives and Miss Young; or, in other words, if we are to be intirely uninfluenced by a regard to the contract between Brocken-brough and Taylor and Rogers; it would be perfectly clear, that that decree must be affirmed. For it would be nothing more than the common case of a vendee of land coining into a court of equity for specific execution of the contract; praying a conveyance of the land, on the terms of paying the purchase money. In that aspect of the case, Brockenbrough and Taylor cannot complain: they get the title which they ask, and with which they are satisfied, and they are directed to pay no more than the balance of the purchase money which *is confessedly due, with interest from the time indicated by their contract. And, if we could suppose Brocken-brough and Taylor to be out of the case, and that in the original suit, Rogers, as the sub-vendee of Brockenbrough and Taylor, was the nominal plaintiff on the record, as he was the real plaintiff in fact, the decree of July 1825 would be equally free from objection; for he would stand in their shoes, and could object to no decree which would be proper as to them.

Has anjr thing been exhibited in the injunction case, calculated to shew, that the -decree of July 1825 is in any respect wrong, so far as it may affect Rogers? I think not. It does not appear from his answer to the bill, that he has any objection whatever to the decree, either as to the title of the land, or as to the balance of the principal due from him, for the purchase money. He seems to be perfectly satisfied with the decree, provided he is not made to pay interest on that balance. An exemption from interest, is claimed, on the ground, that the land owed its principal value to its mineral waters, which could not be rendered valuable without expensive improvements; and that these-improvements could not be safely made so long as the title was in a state of uncertainty. But this objection seems to be the effect of an after thought. It certainly had no influence with Brocken-brough and Taylor, during their occupation of the land ; for they say, they expended large sums in improvements. Nor does Rogers pretend, that it had any influence with him, between the j'ears 1815 and 1818. He does however say, that after that, he in a measure abandoned the land, in consequence of the uncertainty of tlie title. If this be so, why did he not communicate the fact to Blythe’s representatives, and file a bill for the rescission of the contract, instead of a bill for specific execution? If he had then filed a bill for 'rescinding the contract, there is very little doubt but that Blythe’s representatives would have acceded to his wishes. He must submit to-the consequences of his own acts. He made no complaint; he made no offer to rescind the contract; he retained possession of the land, preferred *a bill for specific execution of the contract, and has now got all that he asked by that bill; a title with which he is satisfied. Under such circumstances, it would be without precedent and contrary to equity, that he should not pay the purchase money with interest.

But Rogers was not a party on the record in the first suit; and, consequently, the decree, so far as it relates to the payment of the purchase money, does not operate on him, the real plaintiff, but on Brocken-brough and Taylor, the nominal parties. When, therefore, it appeared from the bill in the second suit, that Rogers was the real party in interest, the chancellor ought to have reheard the original suit, so as to make the decree for the purchase money and interest fall exclusively on him; unless, indeed, he should be unable to pay it.

TUCKER, P.

I am clearly of opinion, that interest upon the purchase money of Miss Young’s undivided moiety of the estate ought to be paid. To this conclusion I am equally led, in whatever aspect I view the transaction between the parties. If we look upon her acquiescence in the contract upon the terms of receiving the principal and interest, as of the nature of a new contract, then it is obvious, that she must be entitled to receive that interest, upon which she insists as an indispensable part of the consideration of her conveyance. Whether Blythe ought to be charged with it to the exoneration of the appellants and of Rogers, will best appear by the examination I propose of the conduct and obligations of Blythe. Whether Rogers or tne appellants ought to bear the burden, will appear hereafter.

Booking upon Miss Young’s acquiescence in the contract, not as a new contract, but as confirming and carrying the contract of Bl3Tthe into execution, how does the case stand? Taking the contract of September 1813, as one made by Blythe’s authorized agent (for though Stribling’s authority was questioned, yet all parties have united in waiving that question) what was Blythe’s engagement as to that portion *of the estate which belonged to Miss Young? “For her undivided two-fourths,” it is provided “that Blythe should make to Brockenbrough and Taylor a good and sufficient deed with general warranty.” And for the security of the purchasers, it is also provided, “that none of the deferred pa3’ments” [which, without doubt, was regarded as the price or consideration of her interest] “shall be demanded, until he shall either make a deed, or give good security that a good title will be made when Miss Young shall come of age.” Here then, the fact that he had not title to Miss Young’s portion is disclosed: the fact that she was an infant is avowed, and the means of security for the purchasers is provided. These means are, either the retention of the purchase money, the execution of a deed with general warranty, or the giving of good security that a good title would be made when Miss Young should come of age. Here are cleariy three distinct modes of .indemnity, of which Blythe, by the frame ■of the instrument, clearly had the option. He was not bound by its terms to do which they pleased. He was intirely at liberty to do which he pleased. If he chose to give security, or to execute a deed with warranty, he would then have been entitled to receive the purchase money: but if he chose to waive the receipt of the purchase money, he was at liberty to do so, and then it was unnecessary to give the security or to execute the deed. It could not be ! a reasonable interpretation of the contract, that he should leave the money in their hands, and give the security also. The money was the best security, and the amount was precisely that which they would have recovered back, had he gone on to receive it. For, having only engaged for the title of a third person, the measure of damages, if he failed to get it in, would be the purchase money of the land.

Blythe, then, did not break his contract by failing to give security or to execute a deed with warranty. Has he failed to comply with it since? I think not. Miss Young arrived at age in 1823. Until that date, he was not bound to procure *her title, though he united in the effort to effect that object by jjetition to the legislature. Within a very reasonable time after her maturity, his representatives did procure her acquiescence, and she •executed a conveyance accordingly. There has been a more than customary punctuality and precision in the fulfilment of his engagements, and Rogers, the vendee of the appellants, is now in full enjoyment of the whole title. I say nothing of the minor objections to the obscurity of pa.rt of the title, since if Rogers had had any doubt about it, the matter should have been distinctly brought before the court by a reference of the title, or otherwise. The failure to do this, must be taken as a proof of Rogers’s consciousness, that there was no material difficulty or defect.

In the short view of the transactions which I have taken, it appears, then, that Blythe and his representatives have been in no default. He has procured the title of Miss Young, within a reasonable time. How that title was procured, how her acquiescence was obtained, is matter of no concern to the vendees. He did not represent himself as the owner. He fairly represented a minor as the owner, and engaged for her executing a title when the legal impediment of infancy should be removed. That engagement has been complied with.

Then, how does the question stand as to interest? The record presents the case of a vendor, who has delivered possession of the premises to the purchaser, which he has continued to enjoy without molestation ; ■of a vendor, who has also faithfully complied with his engagement, that a good title should be made upon the happening of a particular event; until which event, he has left the purchase money in the hands of the vendee, as his security; and that vendee has thus, for more than eighteen years, by himself or his vendee, received the rents and profits, and held the purchase money also. Is there any principle of law or equity, which can justify us in saying he shall keep both? Shall the purchaser for so long a period receive the profits, while *he is enjoying the interest of the purchase money? — for it would be wilful blindness to the ordinary course of transactions, to suppose, that this money has lain idle. If raised at all, it has been put to interest beyond question ; if not raised, the interest has been saved to the party, which amounts to the same thing: for, in either event, he would have enjoyed the vendor’s estate for eighteen years for nothing. The injustice of such a proceeding has long since given rise to the rule, that, as to interest and profits, the vendor is to be considered the owner of the money and entitled to the interest, while the vendee is regarded as the owner of the land and entitled to the profits. 'But he cannot have both. The principle is too familiar to require more than a reference to the cases which were cited at the bar. They establish, beyond question, the general rule, that where the purchaser is let into the possession, and the perception of the rents and profits of the purchased estates, he must pay interest for his purchase money; and if the rule be not universal, the party who claims an exemption from its operation, must bring himself within some established exception. This has been attempted, in the argument of the case; but it has moreover been contended that the english rule is too rigorous for our country.

That rents and profits ordinarily bear but a small proportion to the interests of purchase money, cannot be denied. This is very strikingly the case in Virginia. Hence, where there has been a sale and delivery of possession, and the contract has been disaffirmed, there can be no propriety in the application of the rule. Accordingly it never has been so applied. But where a man purchases land, he has made up his mind to give his money, which would produce a good interest, for land, which will produce much less. Thus, in the present case: had the title been made, and the money paid, the purchaser must have been content with the scanty rents, while the seller would have been receiving full interest. How, since a court of equity looks upon the sale, as complete so soon as the parties have contracted, it is, quoad This matter, the same thing as if a. conveyance had been actually made; provided the vendee has had actual possession, and uninterrupted enjoyment, and there are no particular circumstances to take the case out of the general rule. From the moment of the contract, the buyer is the owner of the land, and must rest satisfied with his rents; and the seller is the owner of the money, and is entitled to his interest.

But it is said in this case, there were obj jections to the title which prevented the vendees from proceeding to improve the | property, so as to render it profitable. To this there are many answers: 1: The difficulty in the title was one contemplated at the very inception of the transaction, and yet it was not provided that interest should not be paid. 2. If there were objections to the title, Blythe, I have shewn, was in no default. ,3. The vendees have always had ample indemnity in their power; for they have not only retained the purchase money of the portion of which the title was doubtful, but they have also attached the whole purchase money of the residue, for the purpose of securing' themselves. Had the title ultimately failed, they would have had, at this day, the 6750 dollars in Stribling’s hands, with the accumulated interest of eighteen years, to indemnify them for their improvements; or, if the whole contract had been rescinded, so that this sum would have become their’s again, then the land would have become Blythe’s, and that would have become liable. I cannot, therefore, but consider this as a pretext on the part of Rogers, who seems to have made no progress in improving; and as to Brock-enbrough and Taylor, they were obviously not arrested in their measures, as in less than two years thejr had laid out 4500 dollars. Upon the whole, I am satisfied, that Blythe’s representatives, or (which amounts to the same thing) Miss Young is entitled to interest as decreed by the chancellor.

We come next to inquire who must pay it. Shall the burden fall on Brockenbrough and Taylor or on Rogers?

*By their contract with Rogers of May 1815, Brockenbrough and Taylor recited their contract with Blythe, and thus distinctly announced, that their title was imperfect as to Miss Young’s moiety; with respect to which, it was also provided, that they were to use their best endeavours to procure the legal title, to be conveyed to Rogers; and if the legal title could be obtained, Rogers was then to pay them 6750 dollars; but, if a legal, title could not be procured by them within one year from the date of that agreement, Rogers was then to be at liberty, in their name or his own, to institute any legal proceedings against the said Blythe, for his own benefit and advantage; it being understood, that in the event of their not procuring the legal title to more than Blythe’s moiety, Rogers was to pay for that moiety only. It was also provided, that, as it might be necessary to attach the money in Slr.ibling’s hands to secure performance of the contract by Blythe, or obtain damages for non-performance thereof, it was agreed, that any proceedings might be had for that object, and that they should be for the benefit of the party entitled thereto, according to the purport and intent of that agreement.

By these articles, then, as I understand them, Brockenbrough and Taylor were bound to use their best endeavours for one year, to procure the legal title of Miss Young’s moiety, to be conveyed to Rogers; and if they succeeded, they were to receive 6750 dollars: if they did not, then they passed over to Rogers their rights as against Blythe, to be pursued by him in their names, if he pleased, but at his own risque, and for his own account; and in this event, they were to receive nothing for Miss Young’s moiety. If no title could be procured eventually, Rogers would have been entitled to any damages he could recover in their names, and they wpuld neither have participated in those damages, nor received any equivalent for them. Or, if he proceeded for the title and recovered , it, he would recover it “for his own benefit and advantage,” and for his own account; and, of course, upon his own responsibility for *the performance of the contract on the part of Brockenbrough and Taylor with Bl3'the. For it is observable, that although in the event of their procuring the title to be made to him, he was to pay them the 6750 dollars, since they would have to pay it to Blythe; yet, after the year expired, when he was authorized to sue on the contract for his own benefit and advantage, there is no obligation on him to pay them one cent. He is left to the responsibilities of the contract, which he was authorized to enforce, and charged with its obligations which he was bound to fulfil.

Such, I think, is the clear interpretation of this contract. In compliance with it, Brockenbrough and Taylor, within the year, issued the attachment against Strib-ling. I attribute the act to them, because it was their duty to do it by the contract; and the compliance with that duty may be presumed, as the act was a proper one, as the suit is in their names, and there is no testimony going to fix the act on another. They also in further fulfilment of their contract to endeavour to get the legal title for Rogers, made an effort to procure an act of assembli’’ authorizing a sale of Miss Young’s title. This was the only practicable mode of getting that title, within the year; and when they failed in this, and the year had elapsed, their rights and obligations were both at an end. From that moment, Rogers stood in their shoes, with full title to the benefit of their contract with Blythe, and of course bound by all its provisions. He acted accordingly. In 1819, he procured counsel, and instead of instituting a new suit, grafted his bill upon the proceedings already instituted against Blythe and Stribling. From that moment, the suit was his. It stood, indeed, in the names of Brockenbrough and Taylor, but not improperly, as Rogers had a right to use their names. It was for his own benefit and advantage, and under his exclusive management and control. They were not entitled to meddle with it, because they had contracted to permit him to sue in their names “for his own benefit;” and he, and not they, was the proper judge of what was so. On *the other hand, they were not bound to concern themselves with it, because they had passed over their rights to him pro bono atque malo, — for better, for worse: and had excluded themselves from any right of interference. Whether, therefore, as it respects Blythe’s representatives, this was the suit of Rogers, or of Brockenbrough and Taylor, it was as between those parties, unques-tionabl3r the suit of Rogers from the time the bill was filed.

Upon the whole, I am of opinion, that from the expiration of the year after the date of their contract with Sogers, Brocken-brough and Taylor were cut loose from the transaction, except so far as they might have been liable to Blythe. The chancellor, however, has not decreed against them personally, but only against the land; and I think he has rightly considered the contract as intire, and the whole liable for the purchase money yet due with interest.

But although this view of the case would absolve the appellants from any liability except to Blythe’s representatives, in case the whole lands, and Rogers himself, should prove inadequate to the discharge of the purchase money’; yet it is by no means a consequence of this opinion, that the chancellor erred in dissolving the injunction, obtained by the appellants to the decree in favor of Blythe’s representatives and Miss Young. This is, in truth, the only question before this court. There is no reason afforded by that bill for longer postponing their recovery of the equivalent for their estates, now for eighteen years in the uninterrupted enjoyment of their ven-dees, and of the claimant under them. I am clearly of opinion, that the injunction was properly dissolved. Whether the original decree was erroneous or not, we are not entitled to inquire, as it has not been appealed from, and as it is clear, that it was a matter of no concernment to the appellants, if I am right in my view of their rights and responsibilities. That decree, though rendered in a cause in which they were nominal plaintiffs, was not personally against them. It decrees, indeed, a sale of the lands, in the event of the purchase money not being paid x'by them: for Rogers was unknown in the case. But it does not decree, that they shall pay it; and no execution can be taken out against them. Had it done so, then their bill would have been perfectly proper. At present, it acts, in effect, upon Rogers only, by directing a sale of his land. It is proper that it should do so, and he must pay the purchase money, or submit to a sale; for the decree is rendered in a cause emphatically his own, and over which the appellants had no control; and while they, on the one hand, are not entitled to appeal from the decree, because it does not affect them, and because they have no right to meddle with the cause which was prosecuted in their names by their own assent, he on the other hand, has acquiesced in the decree, by asking no appeal. Therefore, I am of opinion, that the order dissolving the injunction should be affirmed.

The decree entered by the court, declared, that the interlocutory decree of July 1825 in the first suit, was correct, so far as it decreed the payment of the purchase money to Miss Young, with interest on the instal-ments thereof from the dates when they were payable, or from which they were to bear interest, by the contract of September 1813, between the appellants and Blythe, and so far also as it subjected the whole of the land to sale, for payment of the purchase money and interest thereon remaining due; and there was no just grounds for a further delay of the sale. That, according to the just construction of the contract of May 1815, between the appellants and Rogers, and considering the possession of the lands taken and held by him, — Rogers, after the lapse of a year from the date of that contract, and the failure of the appellants to get in Miss Young’s title within the year, was entitled to all their rights under their contract with Blythe, and liable (as between him and them) to all their responsibilities under it, and to all responsibilities that might arise out _ of any remedy he might select to enforce it. That the suit in -which the decree of July 1825 was made, was one that Rogers had a *right to prosecute, and did in fact prosecute, for his own benefit; with which suit the appellants did not, and could not, interfere. That Rogers (as between him and the appellants) was liable to all the responsibilities arising out of the first suit so prosecuted, and was bound to exonerate the appellants from them all. That the purchase money and interest due, ought to be sought for, out of the lands, and from Rogers, before resort should be had to the appellants. That the injunction awarded to the appellants in the second suit, ought to be continued, until resort to them should become necessary, so as to protect them from personal responsibility, but no further ; it being the opinion of this court, that the decree of July 1825 in the first suit, ought in no other respect to be longer suspended, unless Rogers should, within a reasonable time, to be appointed by the court of chancery, pay the purchase money and interest thereon due; in which case, the court ought to decree, that the appellants shall convey to Rogers the title conveyed to them by Miss Young. But that this decree while it expressed the clear opinion of the court, as to the construction of the contract between the appellants and Rogers of May 1815, and on the points now in controversy between them, was not intended to preclude Rogers from any defence, of which it might be in his power to avail himself, by adducing new evidence, or in any proper way giving a new aspect to the case. Therefore, the chancellor’s order dissolving the injunction in the second suit, so far as it conflicted with the principles here declared, was reversed, and the cause was remanded &c. And the court decreed the appellants their costs against Rogers.  