hav

and the most valuable, was consumed by fire. No demand
wis made by the purchaser for a conveyance, until after
this event; and when it was made, it was made upon Nel-
that he refused to make a conveyance,
son, who says
ing no authority to do so; but informed the appellant that
Diggs, the administrator, and his wife, late the widow of
Augustine Smith, and such of the children as were of
age, would convey as soon as the first payment was made.
Thereupon, the appellant, in June, 1819, filed his bill seck-
ing to vacate the contract, and to have the bonds surren-
dered, upon the ground that the vendor, at the time of the
sale, had no title; and that in consequence of the infancy
of some of the heirs of A. Smith, at the time of the sale,
no complete title could be made; and that the impediment
still existed as to some of the heirs. The family of A
Smith, (who died intestate,) entitled to this property,
were his widow, who intermarried with Diggs, who ad-
ministered on his estate, and five children, one only of
whom was of age when the sale was made.
All were
made defendants in this cause, by an amended bill.
son of A Smith, who was of age at the time of the sale,
answered that the sale was made with his privity and con-
sent; and that he was willing to convey his interest to
the purchaser. All the other children answering after they
came of age, agree to confirm the sale, and to convey to
the purchaser. Two of these did not attain their age until
after July, 1821. No written contract was entered into,
shewing the terms of the agreement. Nelson filed the
power of attorney from Diggs, authorising him to sell the
property.

The

1826.

October.

Vail

บ.

Nelson, &c.

It might be inferred from the advertisement, stating that a deed of trust was to be given by the purchaser, that a good title was to be immediately made to him. The complainant alleges that such were the terms of the sale; and that it was publicly proclaimed, and understood by him. and the by-standers generally, that a title would be made to the purchaser, upon the terms of the sale being compli

October.

Vail

V.

Nelson, &c.

1826. ed with; and that, accordingly, upon the execution of the bonds, he demanded a conveyance from Nelson; when, to his astonishment, Nelson told him he was not authorised to make a deed. Two witnesses, Gibbs the crier, and Wynne, state, "that it was understood at the sale, and stated in the advertisement, that when the terms of the sale were complied with, a title would be made." On the other hand, Nelson denies that there was any such stipulation. The advertisement is produced, with a memoran dum of the sale, endorsed at the time of the sale, by Gibbs the crier, and proved by him. It is proved, that the advertisement was read by the crier, before the biddings; and there is no stipulation in the advertisement as to the time when the title should be conveyed. Nelson denies that any application was made by the complainant for a title, until after the burning of the house in 1819. It is proved, that the purchaser had said that he knew that the title was in part in infants, and could not be conveyed until they came of age; and he entered into the possession, and retained possession of the property for nearly four years, never claiming a conveyance until after the house was burned.

Upon these facts, it is impossible to resist the conclusion, that the purchaser knew perfectly the state of the title, when he purchased, and that no title could be made until the infants came of age; and that he neither demanded nor expected a title to be made until then.

The Chancellor thought that the contract ought to be executed, and decreed accordingly.

How far time is material in a Court of Equity, upon the question of enforcing the execution of a contract, depends upon the particular circumstances of each case, and the conduct of the parties. The authorities upon this subject are collected in Sugden's Law of Vendors and Purchasers; and in the judgment of Chief Justice Marshall in Garnett v. Macon.

October.

In general, the contract will not be enforced by a Court 1826. of Equity, if the party asking the execution of the contract has been in default, and the other party will thereby

Vail

V.

suffer a serious loss, if compelled to carry the contract into Nelson.
effect. But, if the purchaser knew, when he made his
contract, that there was a defect in the title, and that it
would take a considerable time to remove it, or acquires
this knowledge after his purchase, and acquiesces in the
delay, or proceeds, with knowledge of the defect, in the
execution of the contract; he cannot complain. Pincke v.
Curtis, 4 Bro. Ch. Cas. 329.

In this case, the purchaser knew that no conveyance
could be immediately made; and that there was no possible
means of removing the impediment, but the efflux of time;
yet, with this knowledge, he made the purchase, and pro-
ceeded to carry it into effect as far as under existing cir-
cumstances it could be done. And, indeed, there was no
time stipulated for making the conveyance. The fair in-
ference from the whole circumstances of the case, is, that
the agreement was that the conveyance by the children
should be procured, when they came of age; and if so, then
the contract can now be executed literally, according to the
intention of the parties.

The principle of the decree of the Court of Chancery is therefore right. But it is erroneous in this, that it dissolves the injunction unconditionally, and directs the defendants to convey to the plaintiff; whereas, the order for dissolving the injunction should have been upon the condition, that the defendants executed a deed to the plaintiff, with general warranty, and filed it, duly authenticated for record, with the clerk of the Court, for the use of the plaintiff. The reservation in the decree is proper.*

This reservation was, that the defendants should have liberty to apply to the Court for an order directing the sale of the premises, for the payment of the purchase money, if they should be advised so to do.

The decree should therefore be reversed, and a decree entered according to the foregoing principles; the appellees to recover their costs, being the parties substantially prevailing.

The other Judges concurred.*

The vendor of real estate is not responsible for any defects of title, unless be
has bound himself by some covenant or warranty to protect the vendee, or
unless he has been guilty of some fraud or concealment.
When the Commonwealth sells the lands of a public debtor, and the purcha
ser is afterwards evicted by title paramount, the purchaser has no redress
against the Commonwealth; as the law only authorises a sale of all the estate
and interest of the debtor. The rule caveat emptor applies in such cases.

The executors of William M'Clanachan, deceased, presented a petition to the Auditor for the sum of $400, with interest thereon from the 10th of May, 1802. This claim was founded on a purchase made by M'Clanachan of a tract of land, sold by the Commonwealth as the property of William O. Winston; but of which land M Clanachan's representatives had been evicted, and for which they claim of the Commonwealth the purchase money with interest as aforesaid. The Auditor rejected the petition, and the executors obtained an appeal from the Chancellor of the Richmond District.

The

The circumstances of the case are stated in the following opinion, so far as they are necessary to this report. material question was, whether the Commonwealth was bound to make a good title to lands sold by her, for a public debt; or in other words, whether she was bound to

October.

make compensation to the purchaser, in case of an eviction 1826. by title paramount?

a

wealth

V.

M'Clana

The Chancellor decreed that the Auditor should issue Commonwarrant on the Treasurer for payment to the petitioners of $400 with interest from the 10th day of May, until paid; chan's ex'rs. and the Attorney General, on behalf of the Commonwealth, appealed.

Attorney General, for the appellant, insisted that the rule caveat emptor applied in all cases of the sale of real property, and that unless there was something peculiar in the case of the Commonwealth, the general rule must prevail. Sugd. 346. That the Commonwealth is not bound to warrant the title to a purchaser, is proved by 2 Rev. Code, 52, sec. 12. If it be said that the land sold shall be the debtor's land, the obvious meaning of that expression is, that the land seized in execution shall be sold as the debtor's.

· Leigh, for the appellees.

The sheriff conveyed, not Winston's title, but the land itself. The rule caveat emptor does not apply to this case, because the Commonwealth professes, by her deed, to sell the lands of the debtor; and if it should turn out that the land sold was not the debtor's, it follows that the Commonwealth has conveyed, and the purchaser bought, a subject which does not exist.

October 31. Judge CARR delivered the opinion of the Court. *

By the laws of Virginia, the land of public defaulters, (against whom the State has obtained judgment,) is subjected to be taken in execution, and sold by the sheriff.

* Judge COALTER, absent.