
    Lewisburg.
    Stephens v. Hutchison & als.
    
    1849. July Term.
    
    (Absent Cabell, P. and Brooke, J.)
    
      M and K sell a lot of ground to T for $ 200, on a credit, and retain the title. T sells to S for $ 250, who pays him $ 140. S sells to H, who was to pay T $ 100 and S 1180. T haying failed to pay M and K, they file a bill to subject the lot, and it is sold under the decree of the Court, for $ 368, of which, after satisfying M and K their debt and costs, and the expenses of sale, there remains $ 82 95. Held : H is equally bound, under the circumstances, to account with <S for the full amount of the purchase money which he contracted to pay to him for the lot, after the sale thereof, as he was before; and that the subject should be adjusted between them on the like principles as if the property had not been sold, but the lien of M and K discharged on the day appointed for the sale, either by S or H.
    
    On the 10th of May 1837, Mayberry and Kincheloe sold to George Thorpe two lots in the town of Parkersburg, for 200 dollars, payable on the 10th of May 1838. They did not make Thorpe a deed, hut gave him a paper by which they bound themselves to convey to him the lots upon the payment of the purchase money ; and he executed to them his bond for 200 dollars, payable on the 10th of May 1838, with interest from the 10th of May 1837. Thorpe sold the lots to William Stephens for 250 dollar’s, of which, Stephens paid him 140 dollars. And on the 10th of January 1838, Stephens sold the lots to G. W. Hutchison, who was to pay Thorpe 100 dollars, and executed to Stephens his bond for 180 dollars, payable twelve months after date.
    
      Thorpe having failed to pay to Mayberry and Kincheloe any part of the purchase money for the lots sold to him, they, in March 1839, filed their bill in the Circuit court of Wood county, against Thorpe, Stephens and Hutchison, to have the lots subjected to the payment of the amount due to them; and in pursuance of a decree made in April 1840, the lots were sold on the 4th of July following, for the sum of 368 dollars; of which, after satisfying the debt due to the plaintiffs, and their costs, and the expenses of sale, there was left the sum of 83 dollars 95 cents.
    In April 1842, Stephens was allowed to file a petition in the cause, praying that this sum of 82 dollars 95 cents might be paid to him, on the ground that Hutchison had not paid him the sum of 180 dollars, a part of the purchase money for the .lots, and that he was insolvent.
    Whilst this petition was pending, Hutchison obtained an injunction to a judgment which had been recovered against him by Stephens, for this sum of 180 dollars, on the ground that the lots had been sold to discharge the lien of Mayberry and Kincheloe, which with the costs amounted to as much as 280 dollars; the sum he was to pay Stephens for said lots.
    The causes came on together to be finally heard in 1844, when the Circuit court decreed that Hutchison should receive the sum of 82 dollars 95 cents, being the surplus on the sale of the lots. That Thorpe should pay to Stephens the sum of 140 dollars, with interest from the 31st of December 1838, that being the amount of purchase money which Stephens had paid to Thorpe: And that the injunction to the judgment recovered by Stephens against Hutchison should be perpetuated, with costs. From these decrees, Stephens applied to this Court for an appeal, which was allowed.
    
      Fisher, for the appellant.
    Jackson, for the appellee.
   Baldwin, J.

delivered the opinion of the Court.

The Court is of opinion, that the obligation of the defendant Hutchison to account with the defendant Stephens for the full amount of the purchase money which he contracted to pay to him for the lots in the proceedings mentioned, was, under the circumstances, equally the same after the sale of said lots under the interlocutory decree of April 184.0, that it was before; and that the subject ought to be adjusted between them upon the like principles as if the property had not been sold, but the lien of Mayberry and Kincheloe discharged on the day appointed for the sale, either by Stephens or Hutchison, it is immaterial which; for if by Stephens, then Hutchison would, of course, be bound to pay up the whole purchase money due from him, and if by Hutchison, still the latter would be properly chargeable with that purchase money, and credited with the amount of the said lien of Mayberry and Kincheloe. Such adjustment between Stephens and Hutchison is purely a matter of account, and the sale of the property under said decree, occasions no forfeiture from Stephens to Hutchison of any part of the purchase money due from the latter to the former. Hutchison ought therefore to be debited to Stephens with the sum of 280 dollars, with interest till the 4th of July 1840, the day of said sale; on 100 dollars, part thereof, from the 10th of January 1838; and on 180 dollars, the residue thereof, from the 10th of January 1839; making in the aggregate, the sum of 310 dollars 92 cents; against which, he ought to be credited with 200 dollars, the principal of the lien of Mayberry and Kincheloe, with interest thereon from the 1st of April 1837, till the 4th of July 1840 ; making in the aggregate, the sum of 237 dollars 60 cents; and leaving a balance in favour of Stephens against Hutchison, of 73 dollars 32 cents, with interest thereon from the 4th of July 1840, till paid; to which balance, Stephens having had a lien on the lots therefor, ought to be applied the surplus proceeds of sale in the hands of the receiver. And the costs recovered by Mayberry and Kincheloe, and paid out of the proceeds of said sale, ought not to be credited to Hutchison against Stephens, inasmuch as there was not only more than enough money in the hands of Hutchison due to Stephens, to pay off the lien of Mayberry and Kincheloe, but at the time of Hutchison's purchase from Stephens, it was arranged between them, that Hutchison should pay 100 dollars of the stipulated price to the- defendant Thorpe, who was expected therewith, and the sum of 140 dollars he had received from Stephens, to discharge the lien of Mayberry and Kincheloe; and the continued existence of that lien, and the necessity of enforcing it by suit, are attributable not to the default of Stephens, but of Thorpe and Hutchison. The said costs, however, ought to be reimbursed, to Hutchison by Thorpe, who was primarily bound to discharge said lien, it being the debt contracted by him for the property, and he having wholly failed therein, though he had received the said sum of 140 dollars from Stephens.

And as between Stephens and Thorpe, the Court is of opinion that Stephens having acquired the property by purchase from Thorpe, is bound to account with him for the balance of purchase money remaining unpaid to him, to wit, the sum of 110 dollars, with interest thereon from the time when the same fell due; and on the other hand, as by the adjustment between Stephens and Hutchison above indicated, the result is, that Stephens is subjected to the discharge, out of the purchase money due him from Hutchison, of the principal money and interest of Mayberry and Kincheloe’s said lien, amounting as above stated, on the 4th of July 1840, to 237 dollars 60 cents, the balance in favour of Stephens against Thorpe is to be ascertained by deducting the said sum of 110 dollars, with interest thereon till the 4th of July 1840, from the said sum of 237 dollars 60 cents, which balance, with interest thereon till paid, Stephens, is entitled to recover against Thorpe.

The Court is therefore of opinion, that the final decree of the Circuit court is erroneous, except so much thereof as perpetuates with costs, the injunction of Hutchison to the judgment recovered against him in the name of the assignee of Stephens; and it is decreed and ordered that the same, except as aforesaid, be reversed and annulled, and the residue thereof affirmed; and that the appellant recover against the appellee Hutchison, his costs by him expended in the prosecution of this appeal. And these causes are remanded to the Circuit court, to be proceeded in according to the principles above declared.  