
    Taliaferro v. Minor.
    [Friday, October 18, 1799.]
    Sale i/ Land — Infants—Paper Honey — Depreciation/— Private act of Assembly for sale of lands, part of which belonged to infants, and the sale being for ready money, the payment was postponed with consent of the trustees appointed by the act to make sale of the lands, during which, the paper money depreciated, but payment was afterwards actually made in paper money and a conveyance made by the trustees to the purchasers, who were the adult co-parceners; the sale and conveyance are good; and the purchasers shall not be affected by the depreciation.
    This was an appeal from a decree of the High Court of Chancery. The bill stated, that John Thornton died seised of lands which descended on his daughters Mary, (the wife of Woodford,) Betty (the wife of Taliaferro,) his grandson Thornton Washington, and his granddaughter Mildred the wife of Minor. That, in May, 1778, an act of Assemblj' passed, [9 Stat. Darg. 573,] vesting the lands in trustees; and, authorising them to sell the same and invest the money in other lands for the benefit of the parties entitled; those designed for Thornton and Mildred, who were both then minors, and the latter unmarried, were to be purchased with the approbation of their parents or guardians. That, in January, 1779, the whole of the said lands were sold for 41,5831. 5s. 4d. (then equal in value to 5,1971. 18s. 2d. specie,) and Taliaferro and Woodford became the purchasers ; but, paid no money on the day of sale. That, had the lands been sold on credit, they would have produced more; and, therefore, no indulgence in the payment should have been given the purchasers. That the money, however, was not received until greatly depreciated, to wit: 10,6391. 6s. Id. in June, 1790, and 5,4411. 3s. in December, 1781; which ruined the shares of 525 *Thornton and Mildred ; whilst Wood-ford and Taliaferro received the whole benefit of the estate. That the trust remained unexecuted, and the trustees (when called on for settlement and payment of the money, no land being purchased,) offered to pay certificates for paper money funded ; and, that Taliaferro and Woodford refused to pay according to the real value. The bill, therefore, prayed an account of the trust; that Taliaferro and Woodford might pay the actual value, or the sale be annulled; and, that the plaintiffs might have general relief.
    The answer of James Taylor, one of the trustees, stated, that the trustees sold the land; but, as there had been no survey, the amount could not be ascertained, until that was made; and, therefore, the payment was postponed. That' the father of Mildred was solicited to purchase one of the tracts of land for her, but refused, as lands of double the value beyond the mountains could be purchased. That Thornton Washington also desired that none might, be bought for him; which they suppose was done on the advice of his father and guardian. That on the day appointed for making deeds and paying the money, Taliaferro and Woodford brought a great many slaves which they had previously advertised for sale, for the purpose of raising the money; when it was discovered that most of the people, who came to buy, had brought emissions of money, which had lately been .called in by Congress; and, therefore, the trustees objected to receive such: But, doubting whether they were justifiable in doing so, a consultation was held among all the parties (the fathers of the plaintiffs Thornton and Mildred being present,) and it was agreed to postpone the payment; which was to be forthcoming, when demanded, and to carry interest. That the fathers of.'the infants never pointed out anjr purchase (except one' b3T Mildred’s father, which as the quality was not known to that trustee, who lived at a great distance from the land, he proposed to abide by the opinion of her grandfather, who lived near 526 it; but, no further *steps were taken in it;) though they had promised to do so. That the father of Mildred was absent in Kentucky for 12 months, (during which, no purchase could have been made for her). That the trustees could not procure purchases, although they endeavoured to do it, as people were averse to sell for paper money. That Taliaferro and Woodford threatening to tender the mone3q it was received; which being insufficient to make purchases, part was deposited in the loan office, under the act for funding paper money, and the other part paid to Mildred’s grandfather one of the trustees, in order to be invested in land warrants, but the investiture was not made. That the trustees received no benefit from the loss, which was owing to the situation of the times, and not to any fault in the trustees. That in making the deeds, land equal to -one-fourth of the purchase money was conveyed to both Mrs. Woodford and Mrs. Taliaferro; and, the residue was conveyed to Taliaferro and Woodford in their own rights respectively.
    The other trustees refer to this answer, and say the lands were considered at- the time of sale as having been sold at a very great price.
    Taliaferro’s answer states, that he bought at a high price; that Mildred’s father was urged to bpy, and refused, saying that better lands could be procured beyond the Blue Ridge. That the purchasers met at Fredericksburg, on the day appointed by the trustees for making payment, each carrying 40001. cash ; and, slaves to sell for ready money, to make up the balance. That the-sale was disappointed, by the trustees telling them they might retain the money; which would be as well in their hands as those of the trustees, until purchases could be procured; that besides this, the purchasers had some apprehensions about the emissions of money. That their propositions were disliked b3r the purchasers, who objected at first; but, on Mildred’s father, as well as the plaintiff Thornton’s father saying it was their desire that it should be retained, the purchasers paying in-527 terest, *it was agreed to on those, terms. That the purchasers after-wards sold their slaves and paid the money. And in other respects it agrees with Taylor’s answer.
    The heirs of Woodford answer as far as they know, and to the same effect with Taliaferro.
    There are some depositions as to the value of the lands, and whether they sold for sufficient prices; the current of which prove that they sold for about their value: though one or two persons declined bidding, because they understood that it- was a sale for cash. The crier and another witness, said it was proclaimed at the sale that there would be a surve3T, to ascertain the amount, of the money to be paid for the lands, which were sold by the acre.
    The father of the plaintiff Mildred says, that the tract of land spoken of in the answer of James Taylor was offered, if the money could be raised in ten days; but as. he knew the purchasers had it not by them, and must sell slaves to raise it, and that Woodford was from home, he declined all thoughts thereof. That he afterwards mentioned the land warrants as the only probable means of preventing further loss. That, he once offered to take his daughter’s proportion, if paid immediately, but the same was not done. Another witness proves, that Taliaferro offered to sell one of the' tracts he had purchased, to Mildred’s father, saying it would suit his daughter; but that the father refused.
    In other respects, the testimony agrees pretty much with the answers.
    The High Court of Chancery decreed,’ “that Taliaferro and the heirs of Woodford should convey to the complainants their purparties of the said lands, to be held in the same manner as if the act of Assembly had not been made;” and should account for the profits. From which decree, the defendants appealed to this Court.
    *The petition to the House of Delegates for the private act of Assembly, was preferred by Woodford, Taliaferro, Dewis, (the father of Mildred,) and Washington, the father of the plaintiff Thornton.
    Wickham, for the appellant.
    There was no necessity for a survey previous to the sale; and it was almost impracticable to have it made before, consist-r ent with the idea of a sale at a reasonable
    
      period: Which, in practice, is always at the beginning of a year; and that time is most convenient to sellers and purchasers; because, the first loses nothing on a growing crop, and the latter has an opportunity of preparing for a crop. The purchasers had no advantage from the manner of the sale, which, in fact, was a ready money sale; because the trustees might have demanded the money at any time, on completing the survey and tendering a conveyance. So, that it was as much a ready money sale as any sale of lands is; because it rarely, perhaps never happens, that the conveyance is made and the money received on the day of sale; but a few days always elapse before the business is completed. It was impossible to foresee the subsequent depreciation; for, because it had depreciated, it did not follow in the opinion of men, that it would continue to depreciate. If that idea had prevailed, it would have sunk altogether, and gone entirely out of circulation. If the money had been paid, it would have depreciated in the hands of the trustees as much as it did in the hands of the purchasers, with this difference, that in the latter case there was interest accruing on it, whereas in the former there would have been none. There was no obligation to postpone the sale, until there were probable grounds that other lands might be bought for the infants because everybody knows, that in this country, lands'may alway, be bought for money. Besides, it was impossible for them to know what purchases to look out for, until the amount of the sale should be known. It is a strange position to say, that the purchasers 529 were bound to look out for ^purchases; for, they were not the proper persons, and indeed, had nothing to do with it. The purchasers have complied substantially with the terms of the sale ; and, therefore, should have the benefit of their contract. It is not true, that the trustees were bound to refuse a conveyance. Eor, the question is not, what a Court of Equity would do now, but what a Court of Equit}’ would have done then. Now, there can be no question but a Court of Equity at that time would have compelled a conveyance on payment of the money; and it would have been strange if they had refused; because the law made it penal to refuse the money, and had declared it a legal tender. Besides, the contract being for paper money, it was impossible to refuse a specific performance, when paper money was tendered according to the contract. The trustees, therefore, were not only justifiable in receiving the money and making a conveyance, but absolutely compellable thereto; and, if they had refused and any accident had happened to the debt, they must have, borne the loss themselves. If this transaction be unravelled, none of that day can stand; for, it was not a transaction with infants, but with the trustees, who were of full age. There was no breach of trust in the trustees, and, therefore, they are not liable in any shape. If it be said, that the whole purchase money was not paid, it will make no difference; because, the purchasers were entitled to the other half themselves; and, consequently, were not bound to pajr it, in order that they might receive it back again. So, that the whole transaction was complete, notwithstanding only half the money was actually paid.
    Marshall, contra.
    The trustees were bound to pursue the power; and, if they departed from it, it was a breach of trust which cannot be justified. The Legislature must have meant that they should sell for ready money, as the then currency had already depreciated greatly, and was daily depreciating still more. Of course, the 530 trustees, *by allowing the credit, departed from the power; and, therefore, their act was not obligatory. At least, it will not avail purchasers with notice, especially where the interests of infant children are to be destroyed by it. The trustees ought to have surveyed before they sold, which would have avoided the difficulty ; because, they might then have received the money oil the day of sale. It is singular too, that to some bidders it should have appeared a sale for ready money, and to others that it should have been known to be otherwise. This was not putting bidders on an equal footing: and must, consequently, have injured the sales.
    This being a power created by the Legislature, and not by the decedent, ought to have been the more rigidly observed, as it was not a confidence reposed by the owners in the trustees. Although, the trustees had an indefinite latitude as to the sale itself, they had not as to the manner; but, were bound to a providential regard for the interest of the infants. Now, it is evident that a purchase, for the infants, could not be made upon as good terms, when the money was standing out, as if it had been in hand and, accordingly, Lewis could not make a contract, because he was uncertain whether the money could be received in time. There was no probability of the trustees sustaining an injury, by not receiving the money and they ought not to have gone on to complete the sale and make conveyances to the purchasers. The latter, therefore, cannot derive any benefit from it; because, having purchased with notice, they became trustees themselves. But, one argument against the purchasers is particularly strong, that is to say, that the whole purchase money was not actually paid, nor any express appropriation of that which was retained by the purchasers; for, the deeds appear to have been made to the purchasers and not to their wives. Of course, the matter remains in fieri, and the contract has not been completed, but is still open as to that part. Therefore, with 531 *regard to this part of the cause, there can be no doubt, but that the complainants were entitled to relief.
    Randolph, in reply.
    If this transaction is unravelled, all paper money cases must be broken up and opened again. The appellants had the legal title, and therefore did not come into Court to ask a favor, so as to put it in the power of the Chancellor to impose terms. It was, in fact, a sale for ready money; but, if it had not been, that would have made no difference : Eor, the act of Assembly had not prescribed it; and, a sale upon credit may be as fair as a sale for ready money. The act supposes a conveyance, before the payment of the purchase money. But the money was, in fact, offered before the deeds; which, in equity, was equal to actual paj’ment. It is no objection, that the money had depreciated; for, the Court has allowed of payments in paper money, by executors to themselves, for debts due to the estates of their testators. In short, it was one of those transactions which sprang1 out of the times, and which cannot be disturbed, without laying open more wounds than it heals.
    
      
      Trustees — Sale of Trust Property — Infants.—Tbe principal case Is cited witb approval in Hughes v. Caldwell, 11 Leigh 353, for the proposition that, if a sale be made by trustees when it ought to have been made, and if it be fairly made and for the full price, a court of equity will not interfere with it, even at the instance of infants, though the trustees may not strictly have pursued their authority.
      Chancery Practice — Decree between Co-defendants.— Where the equities between the defendants do not arise out of the pleadings and proofs between plaintiff and d efendants, there can be no decree between co-defendants. Glenn v. Clark, 21 Gratt. 39, citing Blair v. Thompson, 11 Gratt. 441; Taliaferro v. Minor, 1 Gall 524.
    
   LYONS, Judge,

delivered the resolution of the Court, to the following effect:

It was objected, that the trustees sold upon credit, and not for ready money: but this, at best, is doubtful; and we think, under the circumstances of the case, ought not to have been insisted on: for, they acted with the general approbation of the parties concerned; had no interest in the transaction themselves; and appear to have only wished to give satisfaction to those who had.

No question would have arisen in the case, if the parties having an interest in the subject, had not become purchasers. But, if the sale was fair, and the purchase honest, why should that circumstance affect the case? Especially, as their bidding, by creating a competition, must have enhanced the sale, and increased the price.

*The purchasers were not to blame, that the money was not received sooner; they were ready to have made payment, but it was postponed by consent, on their agreeing to pay interest.

The sale ivas made, when paper money was current, and it was current, also, when the money was paid: So that what they had agreed to give, the3>1 actually paid; and thus strictly performed their contract.

The purchasers in this case asked no favor, so as to give the Court of Equity power of imposing terms, as was done in the case of White v. Atkinson, 2 Wash. [94,] for in that case, there was no payment of the purchase money. But, if the money had been actual^ paid, there can be no doubt, that a conveyance would have been decreed.

The doctrine, that the purchasers in the present case were bound to see to the application of the purchase money, cannot be maintained; and, upon the whole, the Court is of opinion, that the decree of the High Court of Chancery is erroneous and ought to be reversed.  