
    *Higginbotham v. Brown.
    June Term. 1872.
    Wytheville.
    a. Specific Performance—When Appeal Allowed.—In a ísuit by B against II for specific performance of a contract for the sale of one hundred and fifty acres of land, part of a. large tract of two thousand six hundred and eighty-four acres, sold by W to G, under whom both B and H claimed, the court holding that B was entitled to recover, directed a surveyor named, to go on the land and lay off the one hundred and fifty acres, by metes and bounds and report to the court. Before the survey is made J obtains an appeal from the decree. Held: The appeal should not have been allowed until the report was made, and therefore dismissed.
    3. Liability for Purchase Money. —H having paid a part of the purchase money due from G to W, the one hundred and fifty acres is liable for Its due proportion thereof.
    In July 1868, Joseph C. Brown instituted a suit in equity in the Circuit court of Tazewell county, against Samuel W. Higginbotham and others, to obtain a conveyance of a tract of one hundred and fifty acres of land, once lying in the county of Tazewell, but at the time of the suit instituted, in the county of Buchanan. The bill alleged, that on the 9th of November 1854, John Cecil executed his title bond to Wm. Mullins for one hundred and fifty acres of land lying on the Haurel fork of Dismal, then in the county of Tazewell, now in the county of Buchanan, being a part of the Warder land; and he bound himself in the penalty of three hundred dollars to make to Mullins a deed with general warranty when the purchase money was fully paid. That Cecil had purchased from the agent of Warder a large tract of twenty-six or twenty-seven hundred acres in the Warder survey, including this one hundred and fifty acres. That Cecil delivered to Mullins possession of *this one hundred and fifty acres sold to him. That on the 12th of December 1854, Mullins assigned the bond to Shadrack Ratliff, for value received; and on the 26th of October 1857, Ratliff assigned it for value to the plaintiff. That Mullins gave his bond to Cecil for $150 for the full amount of the purchase money of the one hundred and fifty acres of land ; and that Ratliff paid to Cecil the amount due upon the bond and took it in. That Mullins delivered possession of the land to Ratliff, who delivered'like possession to the plaintiff, who has had possession ever since.
    The bill further states that Cecil not having received a conveyance of the land from the Warders, failed to make a deed to the plaintiff. That he died in 1863, leaving the defendants his heirs at law; and that Henry D. Aston, the attorney in fact of the WTarders, had made a deed for the whole tract of twenty-six or twenty-seven hundred acres to the defendants, heirs of John Cecil. He exhibits his title bond with the assignments upon it, and prays for a conveyance to him of the one hundred and fifty acres of land, and for general relief.
    Higginbotham answered the bill. He says the plaintiff is mistaken in supposing that the defendants inherited the land from John Cecil. It is true Cecil died in 1863, but he left neither real nor personal estate. He had become largely involved as surety some years before the war, and having to pay these debts, he was reduced to a very destitute condition.
    He further says, that Cecil was his father-in-law and was indebted to him $630.27 due October 2d, 1856, and three other small notes which he sets out. That a year or more before his death, Cecil told respondent that at some previous time he purchased from the Warders two thousand six hundred and eighty-four acres of land, lying upon the waters of Sandy, at ten cents an acre, and held their bond for the title; that he had paid a part of the purchase money, but owed a balance, the amount of *which he did not know. That he would transfer to respondent the bond, and by paying the Warders the balance of the purchase money, he would procure a title to the land, and might have the same towards what he (Cecil) owed him. Respondent believing he could not be worsted, acceded to the proposition and took the bond. After the war he paid to Aston, the attorney in fact of the Warders, the balance of the purchase money due upon the land, amounting principal and interest to $243, and obtained from Aston, as attorney in fact for the Warders, a conveyance of the land to himself.
    He further says, at the time of his obtaining the transfer of the title bond, and at the time of securing the conveyance and paying the purchase money to the Warders, he had no notice of any claim on the part of the complainant or of any other person, and knew nothing of the transactions alleged in the bill. He is, therefore, a purchaser for valuable consideration without notice, and in this character claims protection against the claims of the plaintiff. Respondent knows nothing of any possession on the’ part of the complainant. After paying the purchase money and obtaining the legal title, he found a person or two upon the land, whom he regarded as squatters ; but they set up no adverse claim, and agreed to hold the land under respondent.
    The title bond under which the plaintiff claims, says, Cecil has this day sold Wm. Mullins one hundred and fifty acres of land lying on Haurel fork of Dismal, beginning at a black gum, John Brown’s corner, and running up Baurel for quantity, being part of the Warder land. And he binds himself in the penalty of $300, to convey with general warranty, when the purchase money is fully paid, November 9th, 1854.
    The note, bonds and deed mentioned in the defendant’s answer, are also filed. The deed is in consideration of $268.40, in hand paid, the receipt whereof is thereby acknowledged.
    *There were but two depositions filed in the cause, one of them of Aston, the attorney in fact of the Warders, who said that he held two promissory notes of Cecil’s for the land. He held the notes several years before any payment was made. Some time before the death of John Cecil, his son, Samuel, paid witness $175, and said it was money sent by his father who wanted it credited on his notes, which was done. Some time after the death of John Cecil, witness received a note from Joseph Straus asking him, if the balance of the purchase money was paid, he would make the title to S. W. Higginbotham; which witness consented to do, and did do, thinking it all right as he was one of the heirs of John Cecil.
    Ratliff, the other witness, proved the purchase by himself from Mullins; and that he paid to John Cecil in his lifetime, one hundred and fifty dollars, the amount Mullins was to pay Cecil for the land. And that Cecil stated to his son, S. W. Cecil, that that money must go to-morrow to Esquire Aston as a part of the purchase money for that land. The witness said further, that he took possession of the said land at the time Mullins assigned to him the bond, and built a house thereon, and held possession about three years, and then sold to J. C. Brown; and that Brown has held peaceable possession ever since.
    , The cause came on to be heard upon the 11th day of November 1869, when the court held that the plaintiff, Brown, was entitled to a decree for the one hundred and fifty acres of land in the bill and title bond mentioned ; and decreed that the defendant, Higginbotham, should convey the same to the plaintiff according to said title bond by metes and bounds, to be ascertained by a survey to be made by S. B- Graham, who is hereby directed to make and report such survey to the court.
    On the 25th of May 1870, the court made another order in the cause, viz: Samuel B- Graham, the commissioner, ^heretofore appointed to make the survey in this cause, not having been able to do so, on motion of complainant by his attorney, it was ordered that Rufus Brittain be appointed surveyor in the place of S. B- Graham, and that he be required to perform the duties required of the said Graham, and report to the court by the next term.
    After this last order was made, Higginbotham applied to a judge of this court for an appeal from the decree of November 11th, 1869; which was allowed.
    B. J. Johnston and J. T. Campbell, for the appellant.
    J. W. & J. P. Sheffey, for the appellee.
   MONCURE, P.

delivered the opinion of the court.

The appellant claims to be a bona fide purchaser, for value and without notice, of the entire survey of 2,684 acres of land, of which the 150 acres claimed by the appellee, Joseph C. Brown, forms a part, and that, therefore, the said appellee has no right to have specific execution of the title bond for the said 150 acres, according to the claim asserted in the bill. There is no proof in the cause of any purchase made by the appellant, Samuel W. Higginbotham, of the equitable estate of John Cecil, in the said survey of 2,684 acres, bought by him of the Warders, as claimed in the answer of said Higginbotham. The appellant, therefore, wholly failed to sustain his defence of bona fide purchase for value and without notice. He has, however, it seems, paid the balance of the purchase money due by John Cecil to the Warders for the land, and obtained a conveyance of the legal title, from them by their attorney in fact. He is, therefore, entitled to stand in their shoes, and to hold the entire survey, including the 150 acres of land, for his indemnity and reimbursement in regard to the balance of the purchase money paid by him as aforesaid. Subject to that right, *the appellee, Joseph C. Brown, has a valid claim against the said survey of land on the title bond for the said 150 acres, and is entitled to have specific execution of the said title bond, provided the said 150 acres of land can be ascertained and laid off according to the description and direction contained in the said bond and the endorsements thereon. The court below, by an interlocutory decree made on the 11th day of November 1869, decreed that the complainant is entitled to a decree for the 150 acres of land in the bill and title bond mentioned, and that the said Samuel W. Higginbotham convey said 150 acres of land to complainant, according to said title bond, by metes and bounds, to be ascertained by survey to be made by S. R. Graham, who was thereby directed to make and report such survey to the court, and the cause was continued. At a subsequent term of the court, the said Graham not having been able to make the said survey, on motion of the complainant, it was ordered that Rufus Brittain be appointed surveyor in the place of said Graham, and that he perform the duties required of said Graham and report to the court at the next term; and the cause was again continued. After-wards, and before any report was made by said Brittain under the said order, this appeal was applied for and allowed to the said interlocutory decree of the 11th of November 1869.

The court is of opinion that it was most proper that the case should be proceeded in farther in the court below before an appeal was allowed therein. It can be better ascertained after the said survey is made and reported to the court, with any facts elicited thereby or evidence connected therewith, whether the said decree is proper or not; and if not, what decree ought to be made in the case as it may then exist, which decree it will be competent for the court then to make. The court is, therefore, of opinion that the said appeal was prematurely *and improvidently allowed, and it is decreed and ordered that the same be dismissed, and that the appellant pay to the said appellee, Brown, his costs by him about his defence in this behalf expended. And the cause is remanded to the court below for further proceedings to be had therein.

Appeal dismissed.  