
    *White v. Dobson & al.
    January Term, 1867,
    Richmond.
    i. Contract for Sale of Land — Specific Performance— When Purchaser May Pile Bill for. — When a vendor of land has notified the purchaser that he will not fulfill the contract, the purchaser may file a hill for a specific execution of it without making: a tender to the vendor of the securities provided for therein.
    a. Same — Same—Defective Title. — There being two parcels of land embraced in the contract, each at a specific price, if the vendor can make a good title to hut one parcel the vendee is entitled to have a conveyance of that parcel, if he will pay the stipulated price of that parcel, and accept it in full satisfaction of the contract.
    3. Same — Same—Rents, etc. — Interest.—The vendee is entitled to have, if he elects it, an account of the rents, issues and profits of the land, and to have them set off against the purchase money; or if he elects to waive an account, he shall not pay interest on the purchase money.
    This was a suit for the specific performance of a contract for the sale of two tracts of land in the county of Gloucester, brought by Samuel C. White, of York county, against William Dobson and Joel Hayes. The subpoena was issued and served on the 4th of March, 1859. The plaintiff in his bill stated that on the 20th of January, 1859, he had entered into an agreement with Wm. Dobson, under the hands and seals of the parties, by which Dobson had sold to the plaintiff two tracts of land in the county of Gloucester, upon terms which he sets out. That the plaintiff had at all times been willing and ready to carry the agreement into execution, and had repeatedly applied to Dobson for that purpose; but that Dobson, without any sufficient reason therefor, refuses to 'x'comply with said agreement on his part, and declares that he will not execute the same. He makes Dobson and Joel Hayes, who he understands has a lien on the land, parties defendants, and prays for a specific performance ; and for general relief.
    Dobson answered the bill. He says it is untrue as stated in the bill that he refused, at the time the process was issued in the cause, to carry out the contract. On the contrary, he says that before the process in the cause was issued he notified the plaintiff that he was ready to execute the contract as far as he could do so on his part; and the plaintiff was fully aware of the fact. That the plaintiff has wholly failed to do and perform his obligations, under the said contract; and having so failed, the defendant insisted that he was absolved from it.
    The contract which was exhibited with the bill, states that Dobson had sold to White one undivided half of a tract of two hundred and five acres, describing the land, at $1,742.50, payable in one, two and three years, to be secured by mortgage on the land, with interest from the date of the contract, free from all lawful claims upon it; and also another tract of six acres, at the price of $550, payable on the 1st of January, 1860. And they bound themselves to each other in the sum of $500 for the faithful performance of the contract.
    The plaintiff introduced evidence to prove that in February, the parties and John T. Dobson, the owner of the other half of the larger tract, with a surveyor, came to the house of the witness to divide the land, when Wm. Dobson said to White that he (Dobson) would pay the forfeit rather than White should have the land. He also introduced another witness who stated that at the request of White, the witness did, about the 8th of February, deliver to Dobson a letter from White, in which he stated that he wished to settle the contract ami- ; cably, and was *ready on his part to ' comply with it; and informing Dob- ¡ son if he did not comply, White would be under the disagreeable necessity of instituting a suit to enforce the contract. And that Dobson upon reading the notice declared to the witness, that he would not comply with the contract; and that White might bring a suit to enforce it as soon as he pleased.
    The defendant introduced a witness, who stated that on the 28th of February Dobson informed him that, on mature consideration, he had made up his mind to comply with the contract between himself and White, for the sale of the two tracts of land; and as White and himself had had some difference about it he wished the witness to go with him to see White. That the next morning, the first of March, they went together to White’s house in York county. When they arrived there they were told by a son of White, that he had gone to Wil-liamsburg, but he was expected to be at home by dinner time. That they remained until late in the evening, when witness, at the request of Dobson, wrote a note to White, which was signed by Dobson, stating that he had been there to see him but could not; he therefore took this method of informing him that he was willing and ready to comply with the contract; and requesting White to come over to Dobson’s house the next day, or as early as possible, to execute his bonds for the purchase money ; and that he, Dobson, would at the same time execute the deeds for the land. This note was directed to Samuel C. White, and left with his son, at the residence of Samuel C. White; and the son said he would deliver it to his father as soon as he returned home.
    The cause came on to be heard at the August term of the court for 1860, when the court dismissed the bill, with costs. And thereupon White applied to this court for an appeal, which was allowed.
    *Lyons, for the appellant.
    Seawell, for the appellee.
    
      
      See foot-note to Griffin v. Cunningham, 19 Gratt. 571.
    
   JOYNFS, J.,

delivered the opinion of the court:

The court is of opinion that there is no sufficient evidence that the appellant, before the filing of his bill in this case, received notice, as allegéd in the answer of the ap-pellee William Dobson, of the willingness of the said ajjpellee to fulfill on his part, the contract in the bill mentioned. And as the said appellee had notified the appellant of his intention not to .fulfill the said contract, the court is further of opinion that the appellant was entitled to file his bill for a specific execution of the said contract without making a tender to the said appel-lee of the securities provided for therein; and that therefore the decree of the Circuit court dismissing "the bill of the appellant is erroneous. Therefore it is adjudged and ordered, that the said decree be reversed and annulled, and that the appellee William Dobson pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here.

And this court proceeding to render such decree as the said Circuit court ought to have rendered, it is further adjudged and ordered, that it be referred to o.ne of the commissioners of the court to inquire and report whether a good title in fee simple can be made to the appellant to the two parcels of land in the said contract mentioned, or to either of them, with the character and amount of any liens or in-cumbrances that may exist on the same or either of them, and also to take an account, if the appellant shall desire it, of the rents, issues and profits of the said parcels of land,' respectively,' since the date of the said contract, with any matters specially stated deemed pertinent by himself or required by any party to be so stated.

And if, upon the coming in of said report, it shall be ^ascertained that a good title as aforesaid can be made to the said two parcels of land, or that a good title as aforesaid, can be made to either one of the said parcels, and not to the other, then the court is further of opinion, that the said Circuit court should make a decree requiring the said appellee William Dobson, by a day to be fixed by said decree, to convey to the appellant, by deed wi-th general warranty duly executed and authenticated for recordation, and duly stamped according to the act of congress, the said two parcels of land, or that one to which a good title can be made, in case a good title cannot be made to both, provided that, in the latter case, the appellant shall elect to take a decree for that parcel alone, in full satisfaction of the contract, upon payment by the appellant to the said appellee William Dobson, of the money stipulated by the said contract to be paid for the land so to be conveyed, with interest thereon' according to the terms of- said contract, after deducting therefrom what shall be found to be due from the said appellee for the rents, issues and profits of the land so to be conveyed; which shall be applied to the reduction of the purchase money at the end of each year: or if the appellant shall elect to waive an account of rents, issues and profits, then upon-payment by the appellant to the said appellee of the principal money stipulated by the said contract to be paid for the land so to be - conveyed, without interest; in which decree the said Circuit court should make provision in such manner as may seem best, 'for the- satisfaction of any liens or incumbrances that may be found to exist upon the land so to be conveyed. And that in case the said appellant shall, upon the tender of such deed, pay the money so to be paid by him, or in case no title can be made as aforesaid, then, in either of said cases, the said Circuit court should decree the costs in said court to be paid by the the said appellee William Dobson. *And the court is further of opinion, that in case the appellant should, upon the tender of the conveyance aforesaid, fail to pay the money to be paid by him, the said Circuit court should dismiss the bill of the appellant, and should decree that he pay to the said appellee William.Dobson the costs of the suit in said Circuit court, together with the costs and expenses attending the execution of the said conveyance, including the value of the stamps thereon.

And the cause is remanded to the said Circuit court for further proceedings to be had therein, according to the principles of the foregoing opinion and decree.

Decree reversed.  