
    *Hopkins’s Adm’r v. Cockerell & als.
    April Term, 1845,
    Richmond.
    (Absent Cabell, P„ and Bbooke, J.)
    i. Sale of Land — No Conveyance of Title — Effect of Statute of Limitations on Lien of Vendor. — In 1796, II. living in Pennsylvania, sold to B. his right and title to a tract of land in Virginia; and covenanted to convey that right when B. should p,ay the purchase money; for which B. executed his bonds to H. In 1797, N. purchased B.’s bargain, and agreed by parol with H. to take B.’s place; and in the same year paid II. 300 dollars in part of the purchase money. N. died in 1815, not having received a conveyance or paid the balance of the purchase money; and his executors, under a power in his will, sold the land. In 1832, a suit was brought by an assignee of one of the devisees of H. to obtain his portion of the purchase money remaining unpaid on the last sale, to which H. was made a party defendant, and answered the bill; add then filed a cross bill, setting up his claim to a lien upon the land for the balance of the purchase money. To this cross bill the representative of if. in 1834 pleaded the statute of limitations. Held. The statute is no bar to the claim of if.
    
      2. Same — Same—Effect of Lapse of Time on Lien of Vendor. — Under the circumstances of this case, held. The lapse of time is no bar to H.’s recovery upon his lien, as against the representative of if. and the assignee of the devisee of if.
    James Hopkins, an inhabitant of the county of Lancaster, in the State of Pennsylvania, had, previous to the 2d of September 1796, become the purchaser of two tracts of land adjoining each other, in the county of Hampshire, in the State of Virginia ; the one a tract of 460 acres, which had been granted on the 17th of March 1775, by Lord Fairfax .to a certain Hugh Dougherty, for the heirs of Constantine Dougherty; and which was conveyed, on the 24th of August 1796, to James Hopkins by a certain Michael Dougherty, the father and devisee of Constantine Dougherty; the other a tract of 166 acres, claimed under Lord Fairfax, but not then granted, which, on the 22d of July 1796, was conveyed to said James Hopkins by Robert Ralston, the assignee of Thomas Barclay, a bankrupt. The *tract of 166 acres was claimed by Hopkins for his sole use and benefit; but of the tract of 460 acres he was bound to account with Michael Dough-erty for one half the proceeds of sale.
    Holding these claims to the two tracts of land aforesaid, James Hopkins, on the 2d of September 1796, entered into a contract with John Burbridge for the sale of his interest therein, at the price of 400 dollars for the larger, and 600 dollars for the smaller tract, payable one third on the 1st of December 1796, and the balance in two equal annual instalments thereafter. At the time when the first payment was to be made, and the other two secured, said Hopkins was to convey to Burbridge his right and title in the said two tracts of land, without warranty. This contract was evidenced by two papers under seal, by which Hopkins bound himself to convey to Bur-bridge, Hopkins’s right and title to the two tracts, without warranty. And at the same time Burbridge executed to Hopkins his obligations to pay the purchase money in Lancaster, Pennsylvania.
    When this sale was made, Dr. John Snyder of Hampshire county was in possession of the tract of 166 acres; and a certain Peter Harsell claimed title to about 306 acres, part of the 460 acre tract. Soon afterwards, Dr. Snyder purchased of Burbridge his contract for the two tracts of land, and apprised Hopkins thereof; and informed him that the purchase mone3 then due was ready to-be paid; and on the 15th of February 1797, he paid to Hopkins through Jeremiah Clay-pole 300 dollars, in part of the purchase money: though the receipt is dated by mistake the 15th of January.
    From the time of the purchase of the land by Snyder, a correspondence was carried on between him and Hopkins in relation to it; and on the 12th of November 1797, Hopkins enclosed to Snyder at his request, the papers evidencing his title to both tracts.
    The letter enclosing the papers not having been answered by Dr. *Snyder, Hopkins addressed to him two others, one on the 9th of February 1798, asking an acknowledgment of the receipt of the papers sent, the other on the 22d December 1798, complaining of Dr. Snyder’s inattention to his engagements, and intimating that unless the claim was settled by the 1st of the next February he should institute a suit for its recovery.
    On the 4th of July 1799, Dr. Snyder wrote to Hopkins, acknowledging the receipt of Hopkins’s letter of the 22d December, and saying : “I must again mention to you, that your money is at your service as soon as you secure me in the title, and put me in possession.” And he concluded his letter with the remark: “With respect to a suit-in the Federal Court, I can assure you I am no democrat, and do not suspect the Judges of corruption.”
    To this letter Hopkins replied on the 24th of July 1799, and expressed his surprise that he should be required to secure the title, and reminded Snyder of his contract, by which he was to take the title such as, Hopkins held it; and as to the lawsuit he said : “As I believe you have too much understanding to think there are any pretensions to withhold the money due by contract; and as a loss is gained by a lawsuit attended with success, if the same object is attainable amicably, I shall not take any steps in the business before the beginning of September, to give an opportunity to you to put an end to the matter by complying with the contract.”
    With the letter of .the 24th of July 1799, the correspondence between Dr. Snyder and Hopkins ceased; and the threatened suit was never brought; but on the 22d of March 1800, Dr. Snyder instituted, a suit in chancery in the County Court of Hampshire, in the name of-James Hopkins against Michael Dougherty,' Peter ■Harse-11 and.others, for the purpose of recovering possession from Harsell, of so much of the 460 acres as he held, and of perfecting Hopkins’s title to the whole tract. This cause lingered on the docket of the County *Court until 1832, when it was removed to the Circuit Superior Court of haw and Chancery for the county of Hampshire, and coming' on to be heard in that Court,..the bill was dismissed. ■ ■
    No patent having issued to Hopkins, or those under whom he claimed, for the 166 acres of land, Dr. Snyder procured a patent to be issued to Hopkins therefor, dated the 30th of January 1811.
    In the spring of 1815, Dr. Snyder died, leaving a will dated in April, and recorded in June; in which he directed all his estate, real and personal, to be sold, and the proceeds to be divided among his six children-. After authorizing his executors to convey the lands in Virginia, he says: “It is expected they will have due regard to completing the title to' two tracts of said lands, for which I have Hopkins’s title bonds, and a deed from the Commonwealth to Hopkins for one of said tracts.” He appointed William Fox and John Inskeep his- executors, who took probat of the will, and entered upon the duties of their office. They assumed the management of the stiit in the County Court of Hampshire, against Har-sell and others, and on the 23d of December 1816, their counsel in the cause, William Naylor, at their request, wrote a letter to James Hopkins informing him of the pend-ency of this suit;.of, the interest of Dr. Snyder’s estate in it; the difficulties in. thje way of its , prosecution; and the desire of the executors to bring it to a close. Amongst other things, he says: “They” (the executors) “haverequested me to write to you upon the subject. ■ They find receipts among his (the testator’s) papers for moneys paid you on account of the land; but know not explicitly how much is yet to pay, or will be due to you on completing the-title to said land.” Again: “It does not appear that there is aJny dispute about the tract of 166 acres; a conveyance of that tract from you to the executors of Dr. Snyder, who are directed to sell the land,' is all that is necessary as to that. You will *please to write particularly as to that. It is the wish of the executors that that may be done at any rate, immediately upon paying up the proportion of the purchase money, if it is not yet paid.”
    The -letter of Mr. Naylor was answered by Hopkins; he- preferring a claim fora considerable- sum due him for the land; and alleging that he was not responsible for the title. 'Upon the receipt of this letter, the executors sent on to Hopkins the sum of 500 dollars; much'less, however,.than he claimed; but he refused to receive it, because he did not like the banks on which were the notes 'tendered ’’to him.
    Under the au-thotity of the Will of Dr. Snj-der, his executors, in the fall of 1815, proceeded to sell his real estate; and sold to Okey Johnson a large tract of .land on Patterson’s creek, in. the county of .Hampshire, embracing-'the .166 acre tract, which had been bought by Snyder from Hopkins, for 12,000 dollars. In 1819, Johnson having paid part of the purchase money, and there being yet unpaid upwards of 5000 dollars, which he was unwilling to pay until he received a title for the land, he came to an arrangement with the executors, received a conveyance for all the ' lands to which they had a good title, took from them a bond in the penalty of 1800 dollars, with condition to make him a good title to the tract of 166 acres on or before the 1st of April 1821, and executed a deed of trust to secure to them the balance of the purchase- money, viz: 5544 dollars 93 cents, of which 1944 dollars 93 cents was then due, and the residue was to fall due in two equal instalments of 1800 dollars, on the 1st of April 1820, and the 1st of April 1821.
    Johnson paid all the purchase money, except the last instalment of 1800 dollars; but not having received the title for the 166 acres of land according to the provisions of the executors’ bond, he refused to pay the last instalment, and retained it to indemnify. him for the title.
    *The detention of thé purchase money by Johnson led to a further correspondence between Hopkins and two of the sons of Dr. Snyder. This correspondence commenced in February 1827, and continued to April 1830. It was carried on in a friendly spirit; propositions of compromise were made,' and acceded to with apparently slight modifications on the other part; but thgse propositions ultimately, failed, apparently'because Johnson refused to pay the purchase money; and it was found difficult to satisfy Hopkins’s claim from other sources.
    In the mean time, as early as July 1818, Charles and William, two of the sons of Dr. John Snyder deceased, had conveyed' their interest in their father’s estate to their brother John Snyder; and on the 29th of July 1818, John Snyder, for the purpose of indemnifying Samuel Cockerell as his surety in certain bonds, conveyed to Samuel JKercheval, jr sundry property, real and personal, and amongst other things, his interest-under his father’s-will, .and under his purchase from his two brothers, in the purchase money -due from Okey Johnson' for the lands in Hampshire ;• an interest equal to two fifth.s of the whole.
    Cockerell having - been subjected to the payment of the bonds for which he was bound as surety, instituted a suit in the Circuit Superior Court of Daw and Chancery for the county of Hampshire, for the purpose of having two fifths of the money yet "retained by Johnson applied towards his indemnity." The bill was filed in February 1832, to which Okey Johnson, Jeremiah Inskeep, surviving executor "of John Inskeep,. who was' surviving executor of John Snyder deceased, and the children of said John Snyder who were the devisees under his will, were made parties.
    Jeremiah Inskeep the executor, answered the bill, and after stating ' that Johnson had retained the last instalment of the purchase money on the ground of imperfection in the title of that part of the • land purchased *of Hopkins, he said that he had- no knowledge of any debts due from Dr. Snyder’s estate, “except such as might perhaps be due to the said James Hopkins on the said land.”
    Okey Johnson answered, setting forth his purchase; alleging that all the purchase money had been paid except 1800 dollars, withheld on account of the defect in the title of the tract of 166 acres bought of James Hopkins, in whom the legal title was outstanding; and insisted that as the title to that piece of land had not been made in pursuance of the title bond of the executors, he was entitled to relief from that part of the purchase; which he prayed accordingly.
    In September 1833, the plaintiff amended his bill, making James Hopkins a party to the suit; who, in April 1834, filed his answer, setting forth his claims substantially, as they have been hereinbefore stated; and insisting that the whole of the purchase money, with the deduction only of 300 dollars, paid in February 1797, was yet due to him, with interest; upon the pajrment of which, he was willing to convey his right and title to the two tracts of land sold by him to Burbridge, and by Burbridge to Dr. Snyder.
    Hopkins afterwards died, and the suit was revived against John B. White, his administrator, and also against his heirs.
    In April 1834, after Hopkins had filed his answer, he filed a cross bill against the plaintiff and his codefendants, setting out his claim substantially, as stated in his answer; and asking a decree for the balance of the purchase money, with interest, to be paid out of the moneys in the hands of Okey Johnson ; and for general relief.
    Okey Johnson answered, referring to his answer to the original bill. Cockerell answered, not admitting the plaintiff’s claim; objecting that the proper remedy was at law; that the claim was-stale; and relying on the ^statute of limitations. Jeremiah Inskeep, the executor, also answered, referring to his former answer, and professing ignorance of the plaintiff’s claim.
    On Hopkins’s death the cross bill was revived in the name of his administrator White, who filed an amended bill, making the heirs of Hopkins parties; and then Inskeep, the executor, by leave of the Court, pleaded the statute of limitations; and it was agreed between the parties, that evidence to repel it might be given in like manner, asp if the matter to be given in evidence had been relied upon bj replication.
    Both causes, being prepared as to all the parties, . came on to be heard together in September 1836, when the defendant, Okey Johnson, was directed to pay to White, the administrator of Hopkins, as receiver of the Court, 1800 dollars, with interest, the balance of the purchase money in his hands ; and time was taken to consider of the merits.
    On the 24th of September 1837, the causes were again heard together, and the Court decreed that Samuel Kercheval, jr., as commissioner on behalf of the heirs of James Hopkins deceased, and on behalf of Jeremiah Inskeep, the executor, should convey to Okey Johnson the tract of 166 acres in the bill mentioned; that Johnson should be quieted in the possession thereof; that each party in the original cause should pay his own costs; and that the monej' in the hands of the receiver, paid by Johnson, should be applied first to the payment of the plaintiff Cockerell’s costs; and the balance thereof should be distributed among the parties claiming under Dr. Snyder, according to their respective interests therein ; and that the cross bill should be dismissed at the plaintiff’s costs.
    From this decree, the administrator of Hopkins applied for and obtained an appeal to this Court.
    Johnson and Cooke, for the appellant.
    Morson, for the appellee.
    
      
      Sale of Land — Retention of Title by Vendor — Effect of Statute of Limitations on Lien of Vendor. — No time bars the right, under the statute of limitations, of a vendor to recover purchase money for land, if he has not parted with the legal title. Evans v. Johnson, 39 W. Va. 399, 308,19 S. E. Rep. 633, 626i citing the principal case and Hanna v. Wilson,;3 Gratt. 243, 46 Am. Dec. 190. See principal case also cited in Yancey v. Mauck, 15 Gratt. 308.
      Contract for Sale of Land — Specific Execution. — In Yancey v. Mauck, 15 Gratt. 308, It is said: “In Clark v. Hall, 7 Paige’s R. 382, it was held, that where there is an unexecuted contract for sale, the vendor may file a bill to have specific execution, and then have the land sold for his debt To the same effect were the cases.in this court, of Hatcher v. Hatcher (1 Rand:.'53), and Lewis v. Caperton, -vM, supra (8 Gratt. 148), and Knisely v. Williams, 3 Gratt. 265; Hanna v. Wilson, 3 Gratt. 243; Hopkins v. Qockerell,2 Gratt. 88; Beirne’s Ex’ors v. Campbell, 4 Gratt. 125; Stuart’s Ex’ors v. Abbott, 9 Gratt. 255.”
    
   -“BALDWIN, J.,

delivered the opinion of the Court:

The Court is of opinion that Dr. John Snyder, by his contract with Burbridge, and the consent of Hopkins, placed himself in the shoes of Burbridge, in regard to the purchase by the latter from Hopkins of the two tracts of land, one of 460 acres, and the other of 166 acres, in the proceedings mentioned; and became entitled to conveyances thereof from Hopkins, and bound to him for payment of the purchase money therefor; that the only payment made on account of said purchase money was the sum of 300 dollars, paid through Jeremiah Claypole, on the 15th of February 1797, and evidenced by Hopkins’s receipt to Snyder, dated by mistake the 15th of January, instead of the 15th of February 1797; that for the balance of said purchase money, with interest thereon, Hopkins was entitled to equitable liens upon the said tracts of land ; and that his demand is not barred by the statute of limitations; nor, under the circumstances of the case, and proofs in the cause, liable to the presumption of payment’ arising from lapse of time, nor to any other well founded objection. The Court is further of opinion that Okey Johnson, the purchaser from Snyder’s executors of a tract of land embracing the said 166 acres, having, under the authority of the said Circuit Court, paid to its receiver the balance of purchase money in his hands, which he had retained, because of the failure of Snyder’s executors to make him a good title for said tract of 166 acres, is exonerated from any further responsibility on account of his said purchase, and ought to receive a conveyance of the legal title to said tract of 166 acres. And said Snyder’s estate being liable to Hopkins’s administrator for the balance of principal money and interest due on account of the purchase money, which said Snyder, contracted to pay for the said tracts of 460 and 166 acres, and the money paid by said Okey Johnson to the receiver as aforesaid being ^'equitable assets, and more than sufficient to discharge that balance, so much of it as is necessary should be applied to that purpose, without regard to the circumstance that part of said balance embraces purchase money of the 460, as well as of the 166 acres. The Court is therefore of opinion that there is no error in so much of the decree of the said Circuit Court, as directs a conveyance to the said Okey Johnson of the title to said tract of 166 acres, and as quiets him in the possession thereof: but that the same is erroneous in directing payment to Cockerell, the plaintiff in the original suit, of his costs out of the money paid to the receiver as aforesaid, and distribution of the residue thereof amongst the representatives of said Snyder and those claiming under them; instead of decreeing- such payment and distribution only in regard to what should remain after satisfaction of .the balance of principal money and interest due to the appellant as aforesaid; and in failing to decree such satisfaction to the appellant, and in dismissing his cross bill. It is therefore decreed and ordered, that so much of said decree of the said Circuit Court as conflicts with the principles above declared be reversed and annulled, and that the residue thereof be affirmed, with costs to the appellant against Cockerell and Snyder’s representatives, and the cause is remanded 'for further proceedings, &c.  