
    *Pollard v. Rogers.
    [June, 1791.]
    Descents~Case at Bar. — If, "before tile act of assembly altering" the course of descents. A. the eldest son of the testator, after the death of his youngest "brother, sell a tract of land held under a devise to himself and that brother, as tenants in common, the part of either who should die under age, being by the devise to be divided among the surviving children of the testator; and knew at the time of the sale, that the rest of the children claimed five-sixths of the moiety which belonged to the deceased tenant in common, upon the ground that he was supposed to have died during infancy, and does not disclose the claim to the purchaser before the deed is made, the latter, upon discovering the claim, is entitled to annul the bargain, provided he declares his intention to do so at once. But, if he goes on, after the discovery, to make further payments, and does other acts of ratification, he has no pretext for rescinding the contract.
    Same — Same.—If, however, the infancy be proved, or be doubtful, he will, in the first case, be entitled to relief as to the shares of so many of the children as the vendor has not procured releases from; and, in the latter, to indemnity, by retaining an equivalent proportion of the purchase money, until a release is obtained, or the doubt is removed; for he is not bound to accept of bond and security. And, if the release is not obtained within the prescribed time, an issue should be directed to ascertain the fact with regard to the infancy.
    Thomas Pollard, on, the 22d of November, 1786, filed a bill of injunction, against John Rogers and others, stating that, on the 12th of August, 1782, he purchased of Rogers 645 acres of land for ,¿1200, part of which he paid down, and gave two bonds for the residue. That, on the 12th and 13th of August, 1782, he took deeds of lease and release from Rogers and his wife for the land, with general warranty. That when he made the purchase and took the conveyances, he was ignorant that there was any dispute about the title. That he has since discovered, that the land was devised by William Rogers, to the said John Rogers and his brother Larkin Rogers, equally to be divided between them; but, if either of them died under age, his part to be divided among the surviving children of the testator. That some time after the purchase, he was threatened with a suit, by the other children, for their proportions of Larkin's moiety; but, hoping that the brothers and sisters would compromise *the matter among themselves ; or, if they should not, yet as John Rogers was certainly' entitled to one moiety of the whole tract in his own right, and to a sixth of the other, he proceeded to make payments to that amount, thinking that such payments would, in any event, be secured by the actual interest of Rogers in the land, although it would be a considerable loss to him, to take part of the premises only. That the other children of the testator were Frances the wife of John Downer, Elizabeth, the wife of Rice Conner, William Rogers, Sarah Rogers and Catharine Rogers; the last three being still infants. That the plaintiif offered to pay to the extent of the interest of the said Frances and Elizabeth, if Rogers woul^ procure a release from them and their husbands ; which he promised to do, but has not performed; and has brought suit and obtained judgment on the plaintiff’s bond for the last instalment of ^600, without crediting all the payments. The bill therefore prayed, that John Rogers and the other children, might litigate the question among themselves ; that John Rogers might, in the mean time, be‘enjoined from proceeding on his judgment; and that if he was unable to establish his title, that the contract might be dissolved, and so much of the purchase money as had been paid, might be refunded.
    The answer of John Rogers admits the devise, and sale of the land; but says that Earkin Rogers was born on the 2d of April, 1758, and moved, in the latter end of 1778, to some of the southern states, where he joined the American army, and was captured by the British ; by whom he was detained until about the 25th of May, 1779, when he died of full age, but intestate, unmarried, and without issue. That, upon his death, his moiety of the land descended on the defendant John Rogers, as his eldest brother and heir at law. That the plaintiff, at the time of the purchase, was acquainted with tfie will of the testator, the nature of the defendant’s title, and all the circumstances attending it; but made no objection, and took possession of the land, from which he has never been evicted. That Downer and wife, Conner *and wife, and William Rogers have released their claims since the plaintiff purchased; and Sarah Rogers, who is about twenty years of age, and Catharine Rogers, who is about eighteen years old, have manifested their willingness to do so, likewise, by executing the release. That the plaintiff has been credited for all the payments made.
    The answer is replied to; and several depositions taken.
    The witnesses do not agree as to the period of the birth and death of Larkin Rogers; and the executor of William Rogers says, he believes that he died under age. But it appears by the parish register, (which the plaintiff endeavoured to invalidate,) that he was born on the 2d of April, 1758; and a witness proves, that he was captured by the British; and that he has been informed by two persons, one of them a sergeant to the company to which Larkin Rogers belonged, that he died in captivity, on the 25th of May, 1779; and, from other corresponding accounts, believes it happened about that time. There is no proof that Pollard, when he purchased, had ever seen the will of the testator, or knew anything of the nature of the title, or of the claims of the other children. The releases are dated the 19th of January, 1787, and 26th of June, 1789.
    The court of chancery being of opinion, that John Rogers had not practised any fraud, and that the rights of-all the other children except Catharine, if any they had, were extinguished by the releases, dissolved the injunction, as to .£231. 4. 4. upon John Rogers’s entering into bond with security, in the penalty of £200, conditioned to be void, if the title of Catharine Rogers should be released within six months after she came of age. The residue of the injunction was made perpetual, without saying anjr thing- as to costs.
    
      
      Sate of Land — Purchase Honey — Abatement. — In Broyles v. Bee, 18 W. Va. 521, it is said: “The defendant had the right to insist, as in this cause it appears he did, upon an abatement of a part of the purchase money, on the ground that through fraudulent misrepresentations he was induced to enter into the contract. If he had proved the fraudulent misrepresentations, he might have been relieved from the performance of the contract entirely and might have recovered back his purchase money which he had paid; but he elected, as it was his right to do, to have the contract performed, as far as the plaintiffs could perform it, and claimed an abatement. Goddin v. Vaughn, 14 Gratt. 104; Pollard v. Rogers, 4 Call 239."’
    
   LYONS, Judge,

delivered the resolution of the court as follows:

The questions in this case are, 1. Whether the contract shall be vacated altogether? And, if not, 2. Whether Pollard should be allowed to retain so much of the purchase *money as will be equal to the loss he may incur, if the title, to any part of Larkin Rogers’s moiety of the land, should ultimately prove defective?

With regard to the first:

As John Rogers was acquainted with his own title, and knew of the claims of his brothers and sisters, he ought to have disr closed the circumstances to the purchaser, to whom it was interesting that he should be informed of them, in order that he might be able to judge whether he would run the risque, or not. But, as the seller thought.proper to conceal the facts, whatever might have been his motive for it, Pollard had a right, upon discovering them, to declare the bargain void: And, if he had done so immediately, not only would no court, if there had not been a conveyance, have compelled him, upon a bill filed by the vendor, to have completed the contract; but he would, notwithstanding there was a conveyance, have been entitled, upon a bill filed by himself, to relief against the sale altogether.

That, however, was not the course pursued by the appellant. On the contrary, speculating upon the chance of an accommodation of the dispute among the children, and upon the certainty of being secured to the amount of his payments, by the actual interest of John Rogers (whatever it might be) in the premises, he retained possession of the estate, and went on to make some payments, and stipulate for others, if the releases of Downer and Conner were procured, -without intimating the slightest intention to abandon the contract: Which was a waver of his right to annul the bargain; and amounted to a new agreement to proceed with the contract to the extent of the interest which the vendor might be able to assure to him.

This brings us to the second question:

The evidence, with regard to the day when Larkin Rogers died, is hearsay only; and therefore it is perfectly uncertain, whether he was of age at the time of his death, or not. But, after so many deliberate acts of ratification of the pontract on the part of the appellant, subsequent to the *period when he became acquainted with all the circumstances of the case, he is entitled to relief so far only, as the claims of the other children, to proportions of that moiety, have not been extinguished. But, to that extent, he should be relieved: for he ought not to be exposed to the danger of losing any part of the property, as the ratification went no farther than to oblige him to abide by the contract, but not to pay the whole price for less land than he bought. He ought therefore to be secured against the chance of loss, as to any part of it.

We are then to enquire, how far the claims have been extinguished; and whether the appellant has been secured against those which have not?

Releases have been executed by all the children; but the youngest of them is still under age: of course, as to her, it can have no effect, if she chooses to dissent, when she comes to maturity; and therefore the appellant ought to be indemnified against her claim. But the bond directed, by the chancellor, is not the proper indemnity; for a purchaser should not be compelled, while the property is in dispute, to part with his money, and run the risque of getting it back again, if the title should be evicted.

The court is therefore of opinion, that the appellant should be allowed to retain' as much of the purchase money as will be equivalent to the value of the interest of the youngest daughter, if she, at maturity, refuses to release; and it should be found, upon an issue to be directed, that her brother Larkin died an infant.

The decree is, consequently, reversed; and the following is to be the entry:

“It'appears to the court, that there is error in the said decree in dissolving the injunction for the whole balance due from the appellant to the appellee John Rogers, for the purchase money of the land in the bill mentioned, before the right and title of the defendant Catharine Rogers, who is yet an infant, is released, or assured, to the appellant; and in not decreeing to the appellant his costs. And this court, *being of opinion, that the appellant ought to be allowed to retain the sum of two hundred pounds, part of the consideration money remaining unpaid, until the title of the said Catharine is so assured, and also his costs out of the balance, it is ordered, that so much of the said decree as is contrary thereto,' be reversed and annulled ; that the injunction be dissolved, as to thirty-one pounds four shillings and four pence, or so much thereof as shall remain after the costs of the appellant are deducted; and, as to the said two hundred pounds, be continued, until the said Cath-arine Rogers shall, by sufficient conveyance, have released her right and title, to the land aforesaid, to the appellant; which conveyance is to be made at the costs and charges of the said John Rogers: and, if such conveyance shall not be made, within six months after the said- Catharine shall be, or, in case of her death, would have been, of full age, then that an issue be directed as to her title; and (if found for her) the value of her purpart, and the damages of the appellant for want of title thereto: and, after deducting such value and damages, with the costs of trial, and of all other proceedings thereon, that the injunction be dissolved for the balance of the said two hundred pounds with interest, if any shall appear to be due; that the bond by the decree of the high court of chancery directed to be entered into by the said John Rogers for the indemnity of the appellant, if taken, be cancelled and made void; that the said John Rogers pay to the appellant his costs expended, as well in the said high court of chancery, as in this court; that liberty be reserved to all parties, in this suit, to resort to the said high court of chancery for aid and direction, if necessary, for carrying the present decree into execution; and that the residue of the said decree be affirmed.”  