
    *Cury Selden v. Benjamin James, Executor of R. Buchan.
    May, 1828.
    Sale of Laud —Interest on Psuxliase Money— Excuse for Not Paying-Case at Bar. — The vendee of land, on a credit, to whom a Deed is made, and possession given, is not excused from paying interest, on the purchase money, the payment of the principal having been delayed by a third party, who set np an adverse claim, (and commence a course of litigation, which continued for ten years, but which terminated in lavor of the vendee’s title.) the vendee having continued all that time in possession, and enjoyed the issues and profits.
    Same — Same- Same — Same.—The vendor only covenanted to sell and convey a perfect title, (which was so conveyed, as proved by the result of the trial,) not that there should be no claimants, who would sue for if, he therefore committed no breach of his covenant, and this is no ground to excuse the vendee from paying interest.
    Same-Same- Same — Same.- Tile trouble and expense of defending the suit, is what every one, who Is sued, is exposed to, and the vendee's costs cannot be set-off against the interest
    Same — Same—Same—Same.—To excuse the vendee from paying interest during the time that the adverse claim is in suit, it is not sufficient that he should be ready and willing to pay the principal; it ought also to appear clearly, that he did in fact keep the money useless and unproductive by him, and that he gave the vendee notice that it was so unproductive.
    Same — Same—Same- Same. — Although the adverse claim in this case was by the Commonwealth, who proceeded to escheat the land by Inquisition, (which was opposed by the vendee by a Mon-strans de Droit, who defeated the claim) the supposed seizin in Law into the hands of the Commonwealth by the oifice found, and the supposed liability of the vendee, to the Commonwealth, for the rents and profits, did not prevail over the actual seizin of the vendee, and as he actually enioyed the issues and profits during the whole time, and by t e result, became exempted from all liability for them to the Commonwealth, that supposed legal seizin of the Commonwealth, forms no excuse to the vendee for not paying the interest to the vendor.
    Benjamin James, surviving Executor of Robert Buchan, filed his Bill in the Chancery Court of Fredericksburg, against Cary Selden, setting forth, that the said Buchan, by his Will, dated 1803, directed that his land should be sold, and that his Executors might sell on credit, if they could sell it on better terms, and that the money arising from the sale should be remitted to his two brothers: that the Testator died seised and possessed of a tract of land in Stafford; that the Plaintiff and J. M. Daniel proved the Will, qualified as Executors, and entered into the possession *of the land: that they sold it at public auction, on the 20th March, 1804, on a credit of one and two years, to bear interest from the date, if not punctually paid, and Selden became the purchaser of 236 acres of it, at four pounds five shilling per acre, and immediately thereafter, paid $100 of the purchase money, entered into the possession of the land, and has retained possession of it ever since; that the Plaintiff and his Co-Executor executed a Peed to the said Selden, acknowledged it, and had it recorded: that Selden did not know of this at the time it was done, but being afterwards informed of it, approved of it, and claimed title to the land so conveyed: that shortly afterwards, an attempt was made, on behalf of the Commonwealth, to escheat the land, and an Inquisition of Escheat was returned to the District Court of Fredericksburg, and Selden filed a Monstrans de Droit, and Judgment was rendered in his favor by the District Court, which was affirmed by the Court of Appeals in 1816: that the Attorney General afterwards exhibited a Bill to the Chancery Court, claiming the purchase money in behalf of the Commonwealth, but the Bill was dismissed: that during these proceedings, Selden refused to pay the purchase money, or to give his bonds, but promised and agreed to pay the same when the case should be decided, and his title declared good: that after the decision in his favor, the Plaintiff applied to him to pajT the purchase money with interest, and to execute the agreement; but he refuses to pay the interest, although the title has been decided in his favor, and he has constantly had the possession, and enjoyed the profits of the land. He therefore prays, that the Defendant may be compelled to execute the contract, and pay the balance of the purchase money, with interest on the instalments, as they become due, and that on failure thereof, before a short day, the land may be sold.
    The Defendant, by his Answer, admitted the sale and purchase, as set out by the Bill: that before the sale, the Executors declared, that the lands were unin-cumbered, and *that a good and indefeasible title to them would be made: that he became the purchaser under the expectation that there would be no difficulty as to the title, and shortly after-wards entered into the possession of the land, and has retained it ever since: that he paid a part of the purchase money: that he knew nothing of the Deed till after it was executed and recorded: admits the proceedings on the part of the Commonwealth : he says, that pending those proceedings, he was advised it was not safe for him to pay the purchase money: that he was subjected, by the controversy, to considerable costs and expenses: that he was prevented, by the uncertainty of the title, from making such improvements in buildings, on the soil as he would have done, had the title been clear, as he believed it was, when he purchased: that he commenced building a barn and threshing machine, which he was obliged to abandon for the same cause; the materials rotted, and the labor was lost: that the Executors removed to distant parts in 1808, and although they left an agent, yet, if he had paid the money to him and had lost the laud, he could not have recovered, it back, without great trouble and costs: that he was at all times ready and willing to pay the purchase money after it became due, even pending the suit, upon being properly indemnified against the loss of the land : that he had every reason to believe, that if he had paid the money, the Executors would immediately remit the money to Scotland to the devisees, so that he would have been without indemnity: that there was no warranty in the Deed, nor any stipulation by the Executors to make any, and therefore, he thought himself not bound to pay the purchase money: that a few acres of the land conveyed to him are in the adverse possession of another person, and was so at the time of the sale.and conveyance: for these reasons, he is advised that he is not bound to pay interest on the purchase money pending the controversy: that at all events, he is not bound to pay the interest from the day of sale, in default of paying the principal punctually: that if he is decreed to pay any interest, he is entitled to a set-off for the costs and expenses incurred in defending the title; and that he ought only to pay for such part of the land as was in possession of the Testator, and to which he had a clear title.
    The Chancellor, being of opinion that the Defendant was not responsible for the laud in the adverse possession of another, nor for interest on the purchase money from the time of the sale, but that he is responsible for the interest from the respective periods when the instalments became due, decreed accordingly. The Defendant appealed.
    Stanard, for the Appellant.
    Daniel, and Eeigh, for the Appellee.
   May 28.

JUDGE CARR.

In the year X803, Robert Buchan made his Will, by which he directed (among other things) that his Executors should sell his lands, &c. and remit the proceeds of sale to his brothers, David and James, residents of Scotland, to be equally divided between them.

This Will was admitted to Record in February, 1804, and in May following, the Executors sold the land, at public outcry, to the Appellant Selden. On the 10th July, 1805, they executed a Deed for the land, which was recorded on the 9th December, 1805. On the 10th December, 1805, an Inquest was held by the Escbeator, and a Jury, and this land was escheated to the Commonwealth, for defect of heirs of Buchan. In May, 1806, Selden filed a Monstrans de Droit in the Fredericksburg District Court, claiming the land under the Will, the sale, and the Deed of the Executors, and praying Judgment. An issue was made up, a trial had, a special verdict found, and in October, 1806, a Judgment on the verdict entered in *favor of Selden: from this Judgment an appeal was taken, and in April, 1816, the Judgment was affirmed by this Court. Selden took possession of the land in 1804, immediately after his purchase, and has not been removed from it for a moment, by these proceedings. The Bill now before us is filed by the surviving Executor, to compel a payment of the purchase money remaining due with interest, and in default of payment, to have a Decree for the sale •of the land. The Answer admits the justice of the claim generally, but insists that under the particular circumstances, no interest ought to be paid. The Chancellor decreed that interest be paid from the dates when the different instalments became due, and ordered an account, and also a survey, the Answer having stated that a few acres within the bounds of the Deed, were at the time of the sale, and still continued in the adverse possession of another. The appeal is from this order.

The whole argument turned on the question of interest. In his Answer, Selden resists the payment of interest: 1st. Because he was assured by the Executors, that he should have an unincumbered, indefeasible title, without which he would not have purchased. 2dly. That for ten years after he took possession, the title was in litigation, the defence of which cost him much trouble and money, and he was advised that he could not safely pay the purchase money while the title was in suspense. 3dly. That he was always ready and willing, after the money became due, to have paid it, if he could have been indemnified for the loss of the land. To these reasons, the Counsel, in the argument here, added another, to wit, that before Selden had notice of the Deed, the inquisition had been found, the land escheated, and seized in law, (though not in fact,) into the hands of the Commonwealth, and if Selden continued in possession, he was an intruder, liable to the suit of the Commonwealth, and therefore could not be liable at the same time for interest on the purchase money.

*With respect to the two first ■ grounds, that the Appellant was to have an unincumbered and perfect title, and that he has been ten years in litigation about it, it does not seem to me that this furnishes any ground for withholding interest. The Executors have not broken their covenant: they sold the land to the Appellant, put him in possession, and made him a Deed. The Commonwealth then advanced a claim to the land, and commenced proceedings to recover it, but this was no breach of the covenant of the Executors. They undertook to sell and convey a perfect title to the land, but not that there should be no claimants who would suit for it. What they undertook they have made good, for their title has thus far proved a perfect •one. The trouble and expense of defending the suit, are what ail must encounter, who are sued, and raises no claim either in haw, or in Equity, against the Executors. The event has proved that there was no ground for the suit.

Thirdly. The Appellant was always ready and willing to pay the money, if he could have gotten indemnity. Without stopping to enquire whether he had a right to require such indemnity in an executed contract like this, it is obvious to remark that, according to the best settled rules, the statement that he was ready and willing to pay, is wholly insufficient to protect him from the payment of interest. He was then in possession of the land, receiving the issues and profits; he was also in possession of the money, the price of the land, and it must be a strong and clear case which could protect him, under these circumstances, from paying interest; a case, showing that he had a right to retain the money, that he did in fact keep it useless and unproductive by him, and that he gave the other party notice that it was thus unproductive. This is settled in many cases. Thus, in Powell v. Martyr, 8 Ves. 146, during the delay which took place in discussing the title, the purchaser had the money deposited in the hands of his Solicitor, to be paid so soon as the objections to the title were cleared, and he proved this, and also that his Solicitor "•‘'told the Solicitor on the other side, that the money was ready ; but the purchaser was in possession of the land, and because he did not give notice that the money was lying unproductive, Sir William Grant lays it down as settled, that he must pay interest. This was a case, too, where the delay proceeded from the vendor. See Sugden, 3Í9-20-21. There are many other cases. In the case before us, the vendors were in no default: they had put the vendee in possession, and made a Deed conveying him a perfect title; and though he states that he was ready and willing to pay, if he could get security for the title, he does not state that he gave the vendors notice of this; nor does he state, nor does it appear in evidence, that in fact the money was ever for a moment lying idle. H must then be taken that he was in the enjoyment both of the land and the money, and in all conscience he ought to pay interest, unless he be protected by the objection taken at the Bar, that by the finding of the Inquest, the land (in Law) was seized into the hands of the Commonwealth, and Selden became an intruder upon her possession, and liable to her for the rents and profits.

With respect to the Common Law doctrine of offices, the office of instruction, and the office of entitling, and whether the finding of the office of entitling carries the seizin and possession to the Commonwealth in all cases, or in those only where the possession is vacant; these points were discussed at the bar with learning and ability, but I shall not enter into an examination of them, as I think the point before us can be well settled by the Act of Assembly. The 7lh section of our Law of Escheats, 1 Eev. Co. 295, says, “And if the Inquisition be found for the Commonwealth, and there shall be any man that will make claim to the lands, he shall be heard without delay, on a traverse to the office, Monstrans de Droit, or Petition of Right; and the said lands, &c. shall be committed to him, if he show good evidence of his right and title to hold, until the right shall be found and discussed for the Commonwealth, or, for the *party, finding sufficient surety to prosecute his suit with effect, and to render and pay to the Commonwealth the yearly value of the lands, if the right be discussed for the Commonwealth.” When the office in the case at bar was found, Selden was in actual possession of the land, and he did make claim to it, as his Moustrans de Droit, Sled in the District Court, at their next Term, shows. Being in possession of the land, he Would of course continue to hold, until some attempt was made, under the office, to dispossess him. When such attempt was made, it would be time enough for him to avail himself of the terms on . which the Act permitted him to retain possession; or, if no attempt were made to turn him out, the District Court perhaps might have required the security mentioned by the Daw as a pre-requisite to' his filing the Monstrans de Droit, and contesting the title of the Commonwealth. If this requisition had been made, it would have been time enough then, for him to have given the proper security; but no attempt to oust him was made; no security was required of him; the case went on, and he sustained his claim, and proved that the Commonwealth had no pretence of title. Suppose he had been required, and had given the security directed by the Act; it would, in the event which has happened, have been of no effect, for the bond (as directed by the Daw,) must have been on condition “to prosecute his suit with effect, and pay the Commonwealth the yearly value of the land, if the right be discussed for the Commonwealth.” Now, he did prosecute his suit with effect, and the right, so far from being discussed for the Commonwealth, was discussed for him. Thus, if he had given a bond with surety, in any amount, he would completely have discharged it, by a compliance with the condition, and not a cent could have been recovered on it: and can it possibly be supposed that the Commonwealth, in the event which has happened, would, be better off than if bond with security had been given? That after the right had been discussed against her, she could have recovered *from Selden the yearly value of the lands?Surely not: and if not, the argument falls to the ground. He was never liable to the Commonwealth for the yearly profits; he received them, and held the money, and I am most clear that he ought, on every principle, to pay the interest; and that the Decree be affirmed.

JUDGES COADTER, and CABEDD, concurred, and the Decree was affirmed. 
      
      The President did not sit in this cause, being connected with the Appellant: nor did Judge Green, he having decided the cause in the Court below.
     