
    *Moore’s Adm’rs v. Fitz Randolph and Others.
    March, 1835,
    Richmond.
    (Absent Ttjcker, P„ and Brooke, J.)
    Specific Performance — Election of Remedies — Judgment at Law for Damages Bar to Bill by Defendant. — M. covenants to sell land to R. for purchase money to be paid in instalments, and binds himself, not his heirs, upon payment of the instalments, to make R. a good and sufficient title in fee; the last instalment is not paid when due, and after it falls due, M. the vendor, dies; and R. the vendee, pays that instalment to M.’s administrators; the administrators tender R. a deed from part of M.’s heirs, the others being infants and non-residents, with special warranty, which R. refuses to accept; R. brings suit at law against the administrators, for the breach of their intestate’s covenant to convey and recovers judgment for the purchase money; and then M.’s administrators file a bill in equity against M.’s heirs and R. for specific execution of the covenant, and to enjoin proceedings on R.’s judgment at law: Held, after R. had elected to pursue his remedy at law for the breach of the covenant to convey, and recovered judgment, the administrators of the vendor are not entitled to such relief in equity.
    Same — Covenant Not Binding on Heirs — Quaere.— whether as the vendor covenanted to convey, for himself, not for his heirs also, and as he did not convey the purchaser might not, for that reason, abandon the purchase, and insist on having his money refunded to him?
    Same — Death of Vendor — Assurance of Title by Heirs— Quaere. — Also, whether in case of a sale of lands with covenant to convey, if the vendor dies before conveyance, and his heirs cannot give assurance of title, equivalent to conveyance with the usual covenants of assurance by the vendor himself, the heirs of the vendor can demand specific execution in equity? though the vendee may demand it of them.
    Same — Want of Mutuality — Restriction of Rule. — The rule, that equity refuses specific execution of contracts where the remedy is not mutual, applies to cases, in v/hidi there is not snch mutuality of remedy at the time the contract is made; not to cases in which the mutuality of remedy is taken away by a subsequent contingent event.
    By articles of agreement tinder seal, between Samuel Moore in his lifetime and Jonathan Fitz Randolph, Moore contracted to sell Fitz Randolph 100 acres of *land, for 350 dollars, 70 dollars to be paid in cash, and the residue in four equal annual instalments of 70 dollars each, with interest from the date of the contract, with the following covenant to convey the land: “And the said Samuel Moore doth promise and oblige himself, upon the payment of the said sums, to make to the said Jonathan a good and sufficient title in fee simple to the said 100 acres of land.” Before the whole of the purchase money was paid, but after the last instalment fell due, Moore died, without having made any conveyance of the land to Fitz Randolph; and Fitz Randolph paid the balance of the purchase money to Moore’s administrators. And then Fitz Randolph brought an action against Moore’s administrators, on the covenant to convey, in the circuit court of Harrison, declaring that he had performed all the covenants on his part stipulated to be performed, and alleging, as the breach on Moore’s part, that he had failed to convey the land. Moore’s administrators pleaded, 1. conditions performed, on which an issue was made up, and 2. that Moore died before payment of the purchase money was completed, leaving many heirs, some adults, some femes covert, and some infant grandchildren resident in another state, and that upon the payment of the purchase money being completed, his surviving children tendered Fitz Randolph a deed of conveyance with special warranty against themselves, which he refused to accept. To the second plea, Fitz Randolph demurred, and the court sustained the demurrer. And, upon the trial of the issue on the plea of conditions performed, there was a verdict and judgment for Fitz Randolph, for the purchase money with interest.
    Whereupon, Moore’s administrators exhibited a bill against Fitz Randolph and all the heirs of Moore, in the superiour court of chancery of Clarksburg, setting forth the facts, and alleging, particularly, that Moore had put Fitz Randolph in possession of the land, immediately *after the agreement for the sale thereof, was executed, and he had ever since and still held the possession; that Moore lived some time after the last instalment of the purchase money fell due, but that not being paid, he had not executed a conveyance of the land in his lifetime; and that, on the payment being made by Fitz Randolph to his administrators, they offered to procure a conveyance to him from the surviving children of their intestate, with a covenant of special warranty against themselves, and a covenant binding the estate to them descended from their father; but Fitz Randolph refused to receive the conveyance, unless his infant grandchildren, who resided in another state, should be parties thereto, and insisted that the administrators should procure their title, which they were unable to do in consequence of the infancy and non-residence of these heirs. And the bill prayed, that the heirs of Moore should be decreed to make a proper conveyance of the land to Fitz Randolph, and that he should be compelled to accept the same, and enjoined from executing his judgment at law against them, the administrators. The injunction was awarded.
    Fitz Randolph, in his answer, insisted, that though he might have resorted to a court of equity to claim specific execution of the agreement, he had a right also to elect his remedy at law for the breach of the covenant, and having elected to pursue his remedy at law, he was entitled to the benefit of it. He said further, that he had reason to believe that Moore’s title was defective; that he had a right to a conveyance from him with general warranty, which would have been a sufficient assurance of the title, as Moore was solvent? and he was not bound to accept a conveyance with general much less with special warranty from his heirs, who were dispersed, and some of them insolvent; that a conveyance from the surviving children of Moore, was tendered him, as alleged in the bill, after he had brought *his action at law, but he refused to accept it, because it was not such an assurance of the title as he had a right to require, and because he had elected to pursue his remedy at law for damages for breach of the contract.
    The chancellor, — being of opinion, upon the authority of Spindle’s adm’x v. Miller’s ex’ors, 6 Munf. 170, that, as Moore bound himself to make the conveyance to Fitz, Randolph, without binding his heirs also, Fitz Randolph was not bound to accept a conveyance from the heirs, but had a right to waive the contract, and recover back the purchase money, as he had done in his action at law, — therefore, dissolved the injunction. Moore’s administrators appealed to this court.
    Leigh, for the appellants.
    This case is clearly distinguishable from Spindle’s adm’x v. Miller’s ex’ors. The cases are alike, indeed, in the circumstance, that the vendor, in each, bound himself only, not his heirs, to make the conveyance. But there, the vendee was to pay the purchase money upon the day of the execution of the conveyance, so that the conveyance was a condition precedent to the payment; and the vendor having failed to make the conveyance, in his lifetime, the vendee, who was in no default, was held not to be bound to accept a conveyance from the vendor’s heirs which he had not contracted to accept. Here, the vendor bound himself to make the conveyance upon the payment of the purchase money being completed by the vendee; so that payment by the vendee was a condition precedent to conveyance by the vendor; and it was the vendee, who, having failed to make the payment in the vendor’s lifetime, and so to entitle himself to a conveyance, sought now to avail himself of his own default, by declining a specific execution by the heirs of the vendor, which he had never entitled himself to demand of the vendor in his lifetime. Besides, Spindle’s adm’x v. Miller’s ex’ors was an action of covenant at law, in *which the plaintiff was bound to shew performance of a condition precedent by the vendor, to entitle him to recovery against the defendant, and shewed no such performance: this is a bill for specific execution of the contract, which must be determined on equitable principles. It is well settled, that if a vendor contracts for the sale of real estate held in fee, and dies without making conveyance, the vendee will be entitled to specific performance against the vendor’s heirs, though the vendor covenanted for himself only, and not his heirs. Sugd. Baw Vend. ch. 4', (j 2, pp. 145, 6. It was formerly doubted, whether specific execution should be decreed against the vendor’s heir, during his infancy; but lord Thurlow held, that it might and ought to be done; and Mr. Sugden'very justly suggests, that “if this decision were not attended to, the most mischievous consequences must frequently ensue, inasmuch as the purchaser would be at liberty to rescind the contract;’ ’ Ibid. pp. 146, 7. This is precisely what Fitz Randolph, the purchaser in this case, insists he has a right to do. It is a most material consideration, that Moore, the vendor, was never bound by the terms of the contract, to make the conveyance, in his lifetime; whereas Fitz Randolph, the vendee, was bound to fulfil the contract on his part, during the vendor’s life, by paying the purchase money, and thereby entitling himself to a conveyance; for the vendor lived for some time after the last instalment of the purchase money fell due, and it was paid at last to his administrators. Moore committed no breach of his covenant in his lifetime. Fitz Randolph failed to perform his own. If, in such a case, a vendee may be exempted from a specific performance, then, in every case in which a purchaser contracts to pay the purchase money at a distant day, as a condition precedent to conveyance by the vendor, the death of the vendor (an event that may always happen before conveyance made) will absolve *the vendee from his specific contract; and more, he will be so absolved, in consequence of his own default in not completing the payment at the appointed day, or afterwards during the vendor’s life; since the vendor’s heirs cannot possibly give any assurance of title, exactly equivalent with the general warranty of their ancestor. If the court shall hold that the vendor’s heirs are not entitled to specific execution against the vendee, it must go the length of denying, that the vendee would have been entitled to a decree for specific execution against them; for the remedy by bill in equity for specific execution, must be mutual, and the case such that specific execution may be claimed by either party. But this is not a bill by the heirs of the vendor for specific execution ; it is a bill by his administrators against his heirs and the vendee, to compel the heirs to make a proper conveyance, and the vendee to accept it. The administrators and the heirs of the vendor have different, probably opposite, interests. It is an established principle of equity, that, in the case of a contract made for the sale of an estate, the vendor is considered as a trustee of the estate for the purchaser, and the purchaser as a trustee of the purchase money for the vendor; and the death of either vendor or vendee before conveyance, or even before the time for completing the contract, is immaterial. Sugd. Baw Vend, ch. 4, § 1, pp. 130, 131. If the vendor dies without having conveyed, and before payment of the purchase money, the vendor’s heirs are trustees of the estate for the purchaser, and he is a trustee of the purchase money for the vendor’s personal representatives. Equity cannot tolerate the pretension, that the vendor’s heirs, by refusing to make a proper conveyance, or that the purchaser, by refusing to accept such a conveyance and assurance of title as they are able to make, may vacate the contract, restore the estate to the heirs, and take away the purchase money from the personal representatives of the *vendor, and by consequence from his creditors; much more, that a purchaser may do this, to whose fault it was owing (as in this case it was) that the vendor did not complete the contract, by making the conveyance, in his lifetime. And in this case, too, the contract had been specifically executed in part; for it is alleged in the bill and not denied in the answer, and therefore, on the motion to dissolve, must be taken to be true (Scott & ux. v. Gibbon & Co., 5 Munf. 86), that the vendee had been put in possession of the land, and had held and still held it. ■Yet the chancellor dissolved the injunction, leaving the vendee in possession of the land, and free to execute his judgment for the purchase money. Surely, he ought, at the least, to have been laid under terms to restore the possession, and to account for profits, and the injunction should have beer continued until he complied.
    Johnson for the appellee.
    The vendee is certainly not entitled to retain the possession of the land, and to recover the purchase money too; neither has he set up any such pretension. That will be matter for consideration, at the hearing of the cause: it was wholly unnecessary, and indeed would have been improper, to consider it on the motion to dissolve the injunction. The vendor Moore bound himself to convey a good and sufficient title in fee simple; that is, he bound himself ,to assure the title by the usual covenants; and Fitz Randolph, the vendee, stipulated for such an assurance of title. If Fitz Randolph can now be compelled to take a conveyance from Moore’s heirs, with special warranty against themselves, it is obvious, that he Fitz Randolph will have no assurance of the title whatever, which can avail him in case of eviction ; and even if a covenant shall be added, binding the estate of the vendor descended to the heirs, it is difficult to imagine how such a covenant can be framed so as to bind the lands descended, in the hands of a purchaser from the heirs; *so that it would only be a personal covenant of the heirs; and, certainly, it would not be equivalent to proper covenants of assurance executed by Moore, which would bind his personal as well as real estate. The contract, then, cannot now be so executed as to give Fitz Randolph what he specifically contracted for. Justice can only be done to him, by permitting him to waive the contract, and to récover back the purchase money. If, indeed, Fitz Randolph, satisfied with the title, and contented to take a conveyance from the vendor’s heirs, had claimed specific execution of them, it would have been reasonable enough to decree specific execution, at his instance, against them: he would have been only waiving a part of the benefit he had stipulated for, and they would have had no right to complain. But it does not follow, that the heirs or the personal representatives of the vendor, may compel him to waive that benefit, and take what they propose as an equivalent for specific execution, which is manifestly not an equivalent for it, or indeed specific execution of the vendor’s contract at all. It is for the purchaser alone to determine, whether he will waive any part of the benefit of the contract: and here, the purchaser does not choose to waive the assurance of title he stipulated for, and that for a very sufficient cause, stated in his answer, that he has reason to believe that the vendor’s title was defective. Whether specific execution shall be decreed in equity, or not, is always a question addressed to the sound discretion of the court, and necessarily depends on the circumstances of the case. The administrators of the vendor offered to procure a conveyance from a part of his heirs, namely, his surviving children only, though he left grandchildren, who were infants and not residents, whose title it was nowise proposed to get in: this, was clearly, such a conveyance as the purchaser was not bound to accept. Meantime, he had elected to pursue his remedy at law, to recover damages for breach of *the vendor’s covenant, as he had an undoubted right to do; and it was not till the administrators had exhausted every effort of defence at law, and the purchaser had recovered judgment for the purchase money, that they resorted to equity for a specific execution, which, in the actual circumstances of the case, was impracticable. But if it were practicable, they had no right to expose the purchaser to the consequences of such delays; to place him in a situation, in which he could not improve the land, except at his own risk, since, in case of eviction, he would not be entitled to recover compensation of the vendor’s estate for his improvements. It is well settled, as a general principle, that, after a breach of a contract, a party may elect to proceed at law for reparation in damages, and he cannot afterwards be compelled to go for the thing in specie, unless he wants it, or unless some particular grounds of equity exist, on behalf of the party breaking the contract, excusing and relieving against such breach, and shewing that, according to the principles of equity, the contract ought nevertheless to be performed in specie. Long v. Colston, 1 Hen. & Munf. 110, 131. In this case, the contract not only ought not, but in truth cannot, be performed in specie.
    Leigh, in reply.
    If it be true, that Moore’s title was defective or doubtful, as Fitz Randolph alleges, that will be a substantive objection to specific execution. But there is no proof of that allegation, nor has there been any inquiry into the title. I do not contend, that Fitz Randolph ought to be compelled to take a conveyance from Moore’s heirs, unless the title be clear be-3rond all doubt or suspicion ; but if it be so, then no injustice can be done him by decreeing a specific execution. If the case of Long v. Colston shall be understood to bar every party to a contract, from a right to specific execution, so soon as he has committed a breach of contract, and the other party has elected to bring an action at law for *the breach, it will go very far to oust the courts of equity of their jurisdiction to enforce specific performance of contracts, by making the jurisdiction depend on the pleasure of one of the contracting parties. But the decision in that case, places the right of the party who has broken the contract, to demand specific execution notwithstanding the breach, on his equity to demand it, under circumstances excusing the breach; which is equally just in respect to every bill for specific execution. Now, here, the breach of the covenant to conve.y, on the part of the vendor, was excused by the breach committed by the purchaser, in failing to pay the purchase money at the day appointed, and during the vendor’s life: or rather, in fact, the vendor committed no breach in his lifetime, and it was the vendee who broke the covenant on his own part, and thereby prevented the vendor from making a conveyance during his life. All the inconveniences to which the vendee is subjected, have arisen from his own default. As to the delay to demand specific execution, the strength of that objection depends on the lapse of time before it was demanded, without regard to the pendency of the action at law; and the objection is refuted by the fact, that the purchaser had all along enjoyed the possession. Edwards v. Van Bibber, 1 Leigh 183, is a full answer to this objection, and indeed to most of the reasoning of the appellee’s counsel against a specific execution.
    
      
      He pronounced the decree in the court of chancery.
    
    
      
       Judgment at Law for Damages Bar to Bill by Defendant. — A vendor will not be permitted to break his covenant, suffer a suit on it at law, take his chance of defence there, and when judgment is recovered against him, begin a new race in equity for a specific execution. Moore v. Fitz Randolph, 6 Leigh 187, opinion of Judge Carr, citing with approval Long v. Colston, 1 Hen. & M. 110.
      See monographic note on “Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.
    
    
      
       Specific Performance — Want of Mutuality. — A contract to be specifically enforced must be mutually binding at the time it is entered into. The remedy must be alike attainable by both parties to the agreement. The principal case is cited to support this proposition in Wood v. Dickey, 90 Va. 164, 17 S. E. Rep. 819; Bumgardner v. Leavitt, 35 W. Va. 201, 13 S. E. Rep. 69; Hoover v. Calhoun, 16 Gratt. 112, and 
        notc. See the principal case cited in Mackey v. Mackey, 39 Gratt. 171.
      See monographic note on "Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.
    
   CARR, J.

It was strenuously urged by the appellants’ counsel, that we cannot sustain this decree, without establishing it as a general doctrine, that the power of equity to decree a specific performance of an agreement for the sale of real estate, at the instance of the vendor, must in all cases depend on the life of the vendor; and the conclusion was reached thus — If jrou say, that where the vendor dies before conveyance, his heirs cannot compel the vendee to a specific performance, because they *can be called on for a deed with special warranty only, while their ancestor was bound for a general warranty, you must go on and say, that neither can the vendee compel the heirs of the vendor to a specific performance, because it is a settled rule of equity, that in all such cases, the remedj' must be mutual; and thus, you come to the doctrine, that the contract of the ancestor does not bind the heir, to whom the land descends. For myself, I must say, that I can come to no such doctrine; for the cases clearly shew, that if a man owning- land contract for the sale of it, and die before a conveyance executed, his heir at law will be decreed to perform the agreement in specie, even though not named in the covenant. The cases cited by Sugden (p. 14S), fully support this. Thus, in Gell v. Vermedun, 2 Freem. 199, the defendant’s ancestor, to whom he was heir, articled in his lifetime, for the sale of certain lands, which by the articles he covenanted to convey, but did not covenant for him and his heirs; and the question was, whether the heir should be bound to perform this agreement? And held, that he should, inasmuch as his ancestor, after the sealing of the articles, was in the nature of a trustee for the plaintiff of those lands, which trust with the lands descended to the heir; and decreed accordingly: citing the case of Stevens v. Baily, Nels. 106, where tenant pur auter vie to him and his heirs, articled for a sale, and died; although this is such an estate as is not assets for the heir, yet he was here decreed to execute this agreement. Other cases are cited in the notes to this case, by the editor. I agree also, that a contract must be mutual, otherwise equity will not execute it; that is, both parties must by the agreement have a right to compel a specific performance, according to the advantage which it might be supposed they were to derive from it. Bromley v. Jeffries, 2 Vern. 415; Armiger v. Clark, Bunb. 111; Lawrence v. Butler, 1 Sch. & Lef. 13, are cases of refusal to execute contracts for want of ^mutuality. But if there be a mutuality of remedy at the time of the contract being entered into, that is sufficient; for, in such a case, it will be no objection to decreeing a specific performance, in favour of the plaintiff, that by a subsequent contingent event, it could not be enforced against him; see lord Hard-wicke’s opinion in Stapilton v. Stapilton, 1 Atk. 10. Thus, in the case before us, if by the contingent event of the death of Moore, before making the conveyance, it should be considered, that the specific execution could not be enforced against his vendee, because he could not get the title he contracted'for, it would not follow, that the vendee could not enforce such specific execution against the heirs of the vendor; for we know, that if A. has contracted to sell B. land, and to make him a perfect title, he must be able to shew such title, or he cannot enforce a specific execution; while, in the same case, B. may enforce a specific execution against A. if he is willing to take his defective title. I state this to shew, that the rule of mutuality does not apply to such cases as these.

Let it not be supposed from these remarks, that I mean to decide the question, whether a specific execution of a contract for land, can or cannot be enforced against the vendee, where the vendor is dead. I mean to give no opinion on the point; but have said thus much to shew, that while I did not dissent from the general positions taken by the counsel for the appellants, X could not agree with his conclusions in all their latitude. X shall now state the particular and special grounds (not touching these general doctrines) on which I think the injunction was properly dissolved.

When the vendee had completed his payr-ments, he had a clear right to demand his title. The bill tells us, that the administrators offered to procure a deed with special warranty from all the surviving children of the vendor, but he refused this, unless the title of the vendor’s infant grandchildren was also obtained. If upon *this refusal, the administrators had at once filed their bill, claiming the purchase money as their fund, making the vendee, and all the vendor’s heirs, parties-defendants, and praying a specific execution ; the question would have been fairly raised, whether this was a proper case for such decree; and the court of equity, having possession of the subject, would, until it was disposed of, have prevented the vendee from suing on his covenant, on the ground, that in a case proper for the action of both courts, that which first gets it, will hold it. But instead of this, the administrators contented themselves with the offer they had made. The vendee then had to choose his own path: he might sue in equity for a title, or at law for damages: he chose the latter; and proving to the satisfaction of the law tribunal, that the covenant of the vendor was broken, he recovered his purchase money with interest. And now, for the first time, the administrators think of filing their bill, and bringing the subject into equity. I think they have come too-late. We cannot in the teeth of the. judgment at law, deny that the covenant was broken; nor can we dispute the plaintiff’s right, if not first called into equity, of suing at law for damages. The ground on which equitj' first assumed the power of giving specific performance of contracts, was (we are told) to aid the defective remedy of the common law. A man bought a tract of land; it pleased his taste, and he wanted it for a residence; after he had paid his. money, the vendor changed his mind, refused a title, and the vendee could only sue at law for the money he had paid: equity said, this is not justice: if the vendee wants the land, he shall have it in specie. Having gone thus far, — the courts, on the ground of reciprocity, went a step further, and said, that the vendor also should have their aid, if the vendee refused to execute the contract. But they did not say, and could not say, that a vendor might break his covenant, suffer a suit on it at law, take *his chance of defence there, and when judgment was recovered' against him, begin a new race in equity for a specific execution. In Long v. Colston, Long, considering that Colston had broken his covenant, sued on it at law. Instead of defending himself there, Colston filed a bill offering a specific execution, and praying that the whole matter might be transferred into equity. The chancellor-entertained his bill, enjoined the proceeding at law, and finally gave him the relief he asked, on the broad ground, as judge Roane states, that in cases proper for specific execution, though the party grieved may have elected to proceed at law for damages, yet as he might have resorted to equity for a specific performance, and as in equity remedies ought to be reciprocal, the aggrieving party may compel him to abandon his common law remedy, and hold him down to a remedy for specific performance. This court reversed the decree, dissolved the injunction and dismissed the bill without prejudice. In the course of a very strong argument, judge Roane laid down this position (in which the other judges seemed to concur), “that after a breach, a plaintiff may elect to proceed at law, for reparation in damages, and that he cannot thereafter be compelled to go for the thing in specie, unless he wants it, or unless some particular grounds of equity exist, on behalf of the party breaking the contract, excusing and relieving against such breach, and shewing that, according to the principles of equity, the contract ought nevertheless to be performed in specie.” I can see no particular grounds of equity in this case, rendering it unconscientious in the vendee to hold the judgment he has recovered, nor oppressive to the other side, to refund the money, and keep the land; nothing rendering a specific execution more consonant to the principles of equity in this case, than in any other contract for land. As to the point, that Fitz Randolph retains possession of the land, and has received the profits, it will be with the court below, *when the cause goes back, to do what is right in that matter: this is an appeal from an interlocutory order, merely dissolving the injunction.

BROCKERBROUGH and CABELL, L, concurred.

Decree affirmed.  