
    Richmond.
    Asher v. Pendleton & als.
    
    1850. January Term.
    
    
      ^ an(j p unite in the purchase of land upon a credit, and it is agreed between them, that if P fails to pay all or any portion of his share of the purchase money, so that A has to pay it, A shall have the whole land, and repay to P any part that he has paid. Held : This is a forfeiture against which a Court of equity will relieve. »
    By deed bearing date the 24th day of December 1829, and duly admitted to record in the clerk’s office of the County court of Culpeper, John S. Pendleton conveyed to Fayette Mauzy and Martin Slaughter, certain real and personal property, in trust, to be sold for the payment of his debts, in the order therein specified. Mrs. Pendleton did not join in this deed; hut upon an understanding with the trustees, that she was to be compensated for the value of her dower interest in the lands, she joined in the deeds to the purchasers, except as to a tract of thirty-eight acres of land and a mill thereon, which was sold by the trustees to Waller R. Asher. After this land and the mill had been sold by the trustees to Asher, hut before the contract of sale was reduced to writing, Asher consented that Pendleton should be joined with him in his purchase, and the memorandum of the agreement was between the trustees of the one part, and Asher and Pendleton of the other _ part. The agreement bears date the 10th of September 1830, and sets out the sale by the trustees to Asher and Pendleton, of the land and mill, and the renting to Asher a certain field, for the year 1831; for which property, Asher and Pendleton agree to give 1600 dollars, payable in three equal annual payments from and after the 1st of the next November, the payments to fall due on the 1st day of November in each year. And they agree to give their joint and several bonds, with good personal security, and a deed of trust to secure the purchase money. And in the same instrument, it was agreed between Asher and Pendleton, that Asher should pay 100 dollars for the field which he rented. And it was further agreed between them, “ that in case the said Asher had to pay all or any part of Pendleton’s portion of the purchase money, then he the said Asher, may if he chooses, demand a conveyance from the said Pendleton, of his interest in said mill and land attached, which he the said Pendleton agrees to make when he the said Asher shall have paid all the purchase money above mentioned, to the said Mauzy and Slaughter, and in case any part shall have been paid by the said Pendleton, shall have repaid the same to him with interest.”
    When the first payment for the land and mill became due, the acting trustee Slaughter, without applying to Pendleton, who he supposed to be unable to pay the money, demanded payment of Asher, who paid the whole amount; though Pendleton had informed the trustee that he expected to pay his proportion of the first instalment of the purchase money, by appropriating thereto the amount to which Mrs. Pendleton would be entitled from the trustees for her dower interest in the lauds which they had sold, and in the conveyances for which, she had united.
    
      It appears that Asher was in possession of the mill from the time of the purchase, and managed it for the joint benefit, of himself and Pendleton; but when he had been required to pay the whole of the first instalment the purchase money, he refused any longer to recognize Pendleton as a joint owner; and insisted that under their agreement, he was entitled to the whole property.
    Upon the refusal of Asher to permit Pendleton to share in the profits of the mill, Pendleton and his wife (she suing by her next friend) filed their bill in the Circuit court of Culpeper county against Asher and the trustees, in which, after setting out the deed and agreement as aforesaid, it was alleged that it had been agreed between Pendleton and the trustees and Mrs. Pendleton, that she should have Pendleton’s interest in the land and mill, in consideration of her relinquishment of her right of dower in the other lands sold; or that Pendleton’s part of the purchase money should not be demanded until Mrs. Pendleton’s dower interest had been valued, and the amount so due to her should be first applied to the payment of said purchase money. They charged that Asher was fully informed of this arrangement; and they also charged that the profits of the mill, to which she was entitled, would have paid all that was due from her. That Asher had procured from one of the trustees a receipt for 500 dollars, purporting to be on account of the mill purchased, without the knowledge or consent of the plaintiffs, and without having been required by the trustees to pay on account of the said transaction, any thing more than his own part of the said first instalment; and that he then claimed to be the sole owner of the mill.
    The prayer of the bill was, that the moiety of the land and mill might be decreed to be settled by the trustees to the separate use of Mrs. Pendleton; that 
      Asher might be compelled to render an account of the profits ; and for general relief.
    The trustees answered, admitting that they had always considered themselves bound to pay to Mrs. Pendleton a reasonable compensation for the relinquishment of her dower in the real estate sold by them; and they exhibited with their answer, a statement of the proceeds of the sales, amounting to 4135 dollars 19 cents.
    
      Asher in his answer, said, that he had purchased the land and mill from the trustees, and that Pendleton was admitted as a joint purchaser, upon his representation that one half of the purchare money for the sale of the mill and land would be enough with other sales made by the trustees, to pay his debts mentioned in the deed of trust, and that Asher to whom he was indebted, should have the other half to pay that debt, amounting to 700 dollars; and that under these circumstances, Asher consented to the contract. He denied that at the time, or since, or at any other time, it was stipulated with his consent or knowledge, that any claim for dower, or for any compensation for dower or relinquishment thereof, was to be settled for Mrs. Pendleton in any manner on said mill, or that he ever agreed that Pendleton's interest in the mill should be settled to her use. And to any such contract, if proved or attempted to be proved, he pleaded the statute of frauds and perjuries.
    He further said, that when the first instalment of the purchase money fell due, Martin Slaughter one of the trustees, called upon him for payment; and knowing that Pendleton was hopelessly insolvent, and that standing a suit would but increase the amount to be paid, he had paid up the whole amount of the first instalment; and he therefore insisted upon his right, under the contract, to the whole mill, as Pendleton, although he knew when the instalment was due, failed to pay any part of it. And he insisted that he had nothing to do with any controversy between Mrs. Pendleton and the trustees about her dówer right; and that the bill was multifarious and ought to be dismissed.
    The cause came on to be heard in November 1833, when the Court held that Asher and Pendleton became by the contract, joint owners of the land and mill; and that the stipulation in the contract for the forfeiture of Pendleton’s interest upon the default of payment by him, was one which a Court of equity would not enforce ; and a decree was made directing a commissioner to settle various accounts between the parties. The Court also held, that Mrs. Pendleton was entitled to compensation for relinquishing her right of dower in the lands sold by the trustees, and to have the same settled to her separate use out of the interest of John S. Pendleton in the said mill and land ; and a commissioner was directed to ascertain what, under all the circumstances, would be a reasonable allowance to be made to her for uniting in the conveyances by the trustees.
    The commissioner made a report, which was excepted to and was recommitted, and at length a statement was made according to the directions of the Court, which including an account for payments for the purchase money of the mill and land, and of the profits thereof, and also the private account between Asher and John S. Pendleton, ascertained that Pendleton was indebted to Asher on the 15th of June 1839, in the sum of 396 dollars 82 cents. And the cause coming on to be finally heard on that day, the Court confirmed the report, and decreed that upon the plaintiff’s paying to the defendant Asher, the sum of 396 dollars 82 cents, with interest thereon from that day until paid, the plaintiff be let into possession of the said mill, and an equal participation of the profits thereof, as a tenant in common with the defendant. And leave was reserved to the parties to apply at a future day for further directions in regard to the costs of the cause, and other matters involved in the same. From this decree Asher applied to this Court for an appeal, which was allowed.
    
      Lyons, for the appellant.
    
      Robinson and Patton, for the appellees.
   By the Court.

The decree is affirmed.  