
    Mays v. Swope.
    July Term, 1851,
    Lewisburg.
    (Absent Cabell, P.)
    Equity Practice — Sales of Land — Defect in Title.— Though the vendee of land has abandoned possession for a technical defect of title, yet upon a bill to enjoin the collection of the purchase money, if the vendor can make a good title at the time of the decree, the vendee is bound to take it.
    This was a bill filed by Edwin May in the Circuit court of Greenbrier county, against Jonathan Swope, to enjoin a judgment for 300 dollars, with interest and costs,recovered by Swope against Mays in that Court. The bill charged that this judgment was for part of the purchase money of a tract of land in the county of Monroe: That the complainant had discovered since the purchase of the land that Swope had no title to it, and complainant had therefore left the land of which he had taken possession under the contract. The injunction was granted.
    Swope answered, insisting he had a good title; but if it was defective he could and would at any time, if *the complainant had suggested the defect, have had it supplied.
    There seemed to be no doubt that the land had belonged to Adam. Swope, of Pennsylvania. That he by his will, which was duly admitted to probat in that State, had authorized his executors to sell the land; and that the executors had, by deed bearing date the Sth of December 1825, conveyed it to Jonathan Swope, who had been in undisputed possession of the land until he sold it to B. Perkins in 1840; which contract was rescinded, and he then remained in undisturbed possession until he sold to the complainant in September 1847. The ground of objection seems to have been that the will had not been admitted to probat in this State; and the executors had not qualified as such here.
    Whilst the cause was pending, the will was admitted to probat in the County court of Monroe, and Samuel A. Swope qualified as administrator with the will annexed; and he then pn the 17th of December 1849, conveyed the land to Jonathan Swope; and he and his wife, in April 1850, executed a deed by which they conveyed it to Mays; and the same was acknowledged before two justices of the peace so as to be ready for admission to record.
    The cause came on to be heard in May 1850, when the Court held, that as the defendant had since the filing of the bill procured a conveyance of the legal title to the land sold to the plaintiff, and had executed to him a deed therefor, the injunction should be dissolved, but without' damages, and with costs to the plaintiff. From this decree Mays applied to this Court for an appeal, which was allowed.
    Price, for the appellant,
    insisted, that Swope had no title to the land when he sold, and until the purchase was abandoned by Mays, and therefore it was not a *case in which he would be allowed time to perfect his title. He referred to Garnett v. Macon, 6 Call 308; 2 Story’s Equ. Jur., § 776, note 1.
    Caperton, for the appellee,
    insisted, that a Court of equity will enforce the contract of purchase if the vendor can make a title at the decree. He referred to Hepburn v. Dunlop, 1 Wheat. R. 179; Hepburn v. Auld, 5 Cranch’s R. 262; Taylor v. Hong-worth, 14 Peters 172; Sugd. on Vend., p. 430, 431.
    
      
      Sales of Land — When Ability to Convey Title Must Exist. — On this subject, see foot-note to Goddin v. Vaughn, 14 Gratt. 102. As authority for the proposition laid down in this foot-note, the principal case was cited in Rader v. Neal, 13 W. Va. 388; Dodson v. Hays, 29 W. Va. 259,2 S. E. Rep. 425. See also, footnote to Peers v. Barnett, 12 Gratt. 410.
      In Hurst v. Miller, 95 Va. 41, 27 S. E. Rep. 831, the principal case, Young v. McClung, 9 Gratt. 336, Peers v. Barnett, 12 Gratt. 410, and Daniel v. Leitch, 13 Gratt. 195, were cited as cases in which time was allowed the vendor to perfect his title. See also, cases collected in foot-note to Daniel v. Leitch, 13 Gratt. 195.
    
   By the Court.

The decree is affirmed.  