
    *Castleman & M’Cormick v. Veitch and Others.
    December, 1825.
    Equity Jurisdiction — Division of Land. — Where a division of land is sought, a Court of Equity has jurisdiction. .
    Same — Deficiency in Quantity of Land Sold.-A claim for a deficiency in the quantity of land sold, gives jurisdiction to a Court of Equity.
    Chancery Practice — General Demurrer — Effect. — Where a bill in Chancery sets forth various claims, and the defendant files a general demurrer, the demurrer will be over-ruled, if any of the claims be proper for the jurisdiction of a Court of Equity.
    Sale of Land — Eviction—Decree Disaffirming Purchaser’s Title. — Queere, whether an interlocutory decree of a Court of Equity, disaffirming the title of a purchaser of land, will be such an eviction as will give him a right of action against his vendor, nnder a covenant for title, and a covenant to warrant?
    Castleman & M’Cormick, filed a bill in the Chancery Court of Winchester, against John W. Page, Richard Veitch, Thomas Strode and D.-Tee. The bill states, that in 1810, the complainants purchased of Veitch 350 acres of land. The land thus sold by Veitch had been previously purchased by him of Strode; by whom, and Hugh W. Wormeley, the, title was made to the said Veitch. The title to the said land had been previously vested in the said Strode, as trustee for his sister Mary, on her intermarriage with the said Wormeley. This sale was effected under a provision in the said marriage settlement, “that the said Thomas Strode might, whensoever in his opinion the same could be advantageously done, sell and convey the land aforesaid, and invest the proceeds of such sale in other lands, to the same uses,” specified in the deed of settlement. Under this power/' the vendor of the complainants, purchased. Mary Wormeley, however,, by .her next friend, filed her bill in the Circuit Court of the_ United States for the district, of Virginia, against Wormeley, Veitch, the complainants and others, in which a decre.e was pronounced, setting aside the said sale as a breach of trust in Strode, and disaffirm-ing the title of the complainants, derived from Veitch, who purchased of Strode. They . are .how compelled to look for indemnification to Veitch, arid those under whom he claimed. They have *fully paid the purchase money; and have a júst dema.nd for retribution, both from Veitch, their vendor, and from Strode. By the original contract, the complainants have a 'right to resor't 'to Strode in the first instance, in case of eviction or loss of the whole or- any part of the property aforesaid; conveyed to them by the said Veitch. The de,ed 'from Veitch to the complainants contains: 1st, a covenant that Veitch had a good title when he conveyed; 2d, a covenant to warrant, binding liimself and his heirs; 3d, an engagement to permit the.' complainarits to" avail themselves of' Strode’s warranty; 4th, an agreement that the complainants might proceed against him pari passu with Strode. . 'Thus it appears, that the complainants have a right, under the contract, to .proceed against Veitch, for compensation for the lands they have lost.
    . As to Strode. The complainants have a right, under his warranty to Veitch, to indemnification from him; and they have,' moreover, a specific lien upon the property conveyed by deed from Strode to Lee, as trustee, for the benefit of Mary Wormeley. This deed conveys certain land in Kentucky to the said Lee, as trustee aforesaid, in lieu of the land which he had sold to Veitch, under the power in the marriage settlement, and which Veitch had sold to the complainants. The land conveyed be-, ing an undivided part of a tract, the complainants say that they cannot have it laid off, so as to enable the, trustee to sell, without the authority of the Court of Chancery. They alledge a deficiency in the quantity of land sold by Veitch to them. Veitch resides in Alexandria, .without the jurisdiction of the Court; but' a large sum of money is due to him from Page.
    The bill prays, that the value of the premises conveyed by Veitch to the complainants, and the title to which has. proved defective, may be ascertained, and decreed to be paid to the complainants in the first instance by Strode; and, if not paid by him, tnat Veitch may be decreed to pay it: that, if necessary, the property held by Lee, as *trustee, may be sold by him, to effect the purpose of indemnity, as far as it "will go; and that Page may be restrained from paying the sum in his hands, due to the said Veitch, until the further order of the Court, &c.
    An order of publication was made against Veitch, as an absent defendant. ■ •
    Strode' demurred to the' bill;, on the ground,' that its object was to recover indemnity for the land sold to the complainants by Veitch, of which they pretend that they have been evicted; when it appears, by their own shewing, that they have not been evicted of any. part thereof, and also, by the express terms of. their contract, that they were not authorised to proceed against the defendants, until they were actually evicted: that it appears further, from the proceedings in the Federal Court, that there has been, no final, decree of the said Court, evicting the cornplainants; but so far from it, that there is a lien reserved to them, on the said land, which has not been removed, and may never be removed, but may secure the title and possession of the said land to the complainants.'
    Page answered, acknowledging that a certain sum was due from him to Veitch, 'but not as much as the bill had alledged.
    The cause came on upon the demurrer, which the Chancellor sustained, and dismissed the complainants’ bill. Frorh this decree, Castléman and M’Cormick appealed.
    Johnson, for the appellant.
    Leigh/for the appellee.
    December 16.
    
      
      Equity Jurisdiction — Compensation for Deficiency in Land. — It has always been admitted that ,a court of equity bas jurisdiction where the claim is for an abatement or for compensation for a deficiency in land. Crislip v. Cain, 19 W. Va. 520, citing Oastleman v. Veitch. 3 Band. 598. to the point. To the same effect the principal case is cited and quoted from’in Kelly v. Riley, 22 W. Va. 249, 250. See further, monographic note on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.
    
    
      
      Chancery Practice — General Demurrer — Effect.—In Gay v. Skeen, 36 W. Va. 588, 15 S. E. Rep. 65, 66, it is said, “when a bill in equity sets forth various claims and the defendant files a general demurrer, the demurrer will be overruled if any of the claims be proper for the jurisdiction and cognizance of the court in that form of proceeding; but when there is a demurrer to the whole bill, and also to each of the severable claims set out therein, and a part of those claims so demurred to are of such a character as to authorize no relief in such a suit, the court should sustain the demurrer in part, and should dismiss so much of the bill as seeks relief in reference to matters adjudged bad, and overrule the demurrer as to the residue, and give a rule against the defendant to answer the bill as to such residue. 1 Bart. Ch. Pr. 346, 347; Powder Co. v. Powder Works, 98U. S. 126; Castleman v. Veitch, ¿3 Band. (Va.), 598.”
    
    
      
      Absent Judges Gbeen and Cask; the latter having- decided the cause as Chancellor.
    
   JUDGE CABELL:

The claims' of' the appellants against Strode, are twofold'; first, to make him personally liable, under the warranty in his deed of the 16th .of September, 1810, for the land sold by him to Veitch, and by Veitch to them; and secondly, *to have the Kentucky lands, which were conveyed in trust by Strode to Lee, by the deed of the 23d day of April, 1813, divided, and a portion thereof laid off as a fund, to which the appellants might resort as a security for any defect of title in the lands aforesaid. It will be, seen from the last mentioned deed, that in consideration of the appellants having released to Strode a mortgage which he had previously executed on certain property, for securing the title of the land sold by him to Veitch, and by Veitch to the appellants, Strode had substituted a portion of the Kentucky laqds; on which the appellants were to have a lien, in lieu of the' property embraced in the former mortgage. It will be farther seen, that the Kentucky lands were to be divided forthwith, and the portion laid off, on which the appellants were to'have their lien. The bill states, that this land has not yet been divided; and assigns this as one of the causes for calling Strode into Court.

Now although it may be, that Castléman and M’Cormick have riot exhibited in their bill, such a case as would entitle them to a present recovery against Strode, on the warranty' in the deed of the 16th of September, 1810, yet it is perfectly clear, that they were entitled to an immediate division of the Kentucky land, in pursuance of, and for the' purposes declared in, the deed of April, 1813. I am therefore of opinion, that the demurrer was improperly sustained, even as to Strode.

As to Veitch, the case is still clearer. As to him also, the appellants had two grounds of claim; one for a deficiency in the quantity of the land sold; the other, for the defective title. Now, even admitting that the appellants’ bill did. not . exhibit a case sufficient to support their claim, on the ground of defect of title; yet no one can doubt that the claim, as stated in the bill, for deficiency of quantity, will give the Court jurisdiction of the case.

The decree must therefore be reversed, the demurrer over-ruled, and the cause remanded for farther proceedings.

*1 give no opinion as to the effect of the decree of the Federal Court, referred to in the bill; nor on the construction of the deeds from Veitch to the appellants. They are questions in which he is deeply interested; and it will be time enough to decide them when he shall be before the Court.

The other Judges concurred, and the decree was reversed.  