Mr; Justice CATRON
delivered the opinion of the court.
This is an injunction bill, to restrain the defendant from taking out a writ of possession and an execution for costs, on a recovery, of seven hundred acres of land, by Upshaw, in an action of ejectment against the complainants in the Circuit Court of Ohio. They ask a perpetual' injunction of the execution, and a specific decree for title.
The complainants, and those under whom they claim, purchased from Philip Buckner, paid a full price, and took deeds dated in 1798 and 1799.
Buckner purchased.from Lyne Shackleford in November, 1797, when the latter had no title to, or interest in the land; Upshaw, ■ the respondent, being the owner. It had been granted to Beverly Roy by the commonwealth of Virginia, in 1789, and sold by Roy to Shackleford. In April, 1797, Shackleford sold to Upshaw, and directed the title to be made to him: ' On the 20th of July, 1797, Roy conveyed to.Upshaw; and in November afterwards, Shackleford sold a second time to Buckner.
To remedy this defect of title and want of good faith, in April, 1801, Shackleford entered into a'covenant with Upshaw, by which the sale to Buckner, of November, 1797, was confirmed; and in May, 1803, Shackleford and Upshaw entered into another covenant, again confirming the contract between Shackleford and Buck- • ner; and which is more specific in its terms than the first, of 1801.
By these contracts alone Upshaw was bound : and on them the bilJJs founded, and a specific decree asked. They must be taken together: so the complainants treat them in their bill; nór can the court do otherwise.
Upshaw, having stipulated to-make title to Buckner, on receiving ¡S420; the puróhase-money,-took an assignment of the cove
nant between Buckner and Shackleford; on which it appears by the covenant of 1803, ¿6420 was remaining unpaid.
It is insisted that a bill for a specific performance of the-contracts, could not be maintained until the purchase-money was tendered to Upshaw, the vendor; and of this opinion was the. Circuit Court; and principally on this ground, taken in connection with other circumstances', dismissed the bill.
We are of opinion that if such. S'rule exists in any case, it has no application to the one before us. The complainants purchased from Buckner when he had no interest in the land; and at that time they-acquired no equity against Upshaw: yet of this fact they had no knowledge, and rested confident that they were occupying and improving the land under a good title. Nor did they have any knowledge of the' contracts between Shackleford and Upshaw, after their purchase from-Buckner, for many years; probably not until" about the time the recovery was had against them in the action of ejectment in 1.831. It Was not Buckner’s interest to give the information; and Shackleford took no further trouble on himself in the matter after 1803; he arid Upshaw residing in the' remote parts of Virginia, five hundred miles from the complainants.
Upshaw admits, in'his answer, that he did not know Buckner had sold the land; or that it was in the possession of the complainants, until about the time he brought his first action of ejectment, in October, 1818: that he. sued for the land, because he had failed to obtain the'.purchase-money from Buckner. The suit failed, because the patent from the commonwealth of Virginia was void; the country having been ceded (north of the Ohio river) by Virginia to the United States, before the land was granted.
In 1826, Upshaw, on the prodúction of the patent to Roy and his deed, obtained a. patent from the United States, in confirmation of the Virginia grant. On this he brought another suit against the complainants; and- in 1S31, recovered the land. ■ This is the judgment the bill seeks to enjoin.
During all this time, Upshaw was a stranger to the complainants : he set up no claim against them for the purchase-money due from Buckner to him: he sought the land, and disavowed that Biickner’s contract with the complainants bound him. And
so he continues to do. His principal defence in the answer to the bill is,
“
That having no contract, or privity of contract-, with the purchasers from Buckner, he conceives they can have no right to come into a court of equity to enforce a specific performance of the contract with'Buckner.”
It is manifest that at no time were these complainants afforded the opportunity to pay the purchase-money due from Buckner to Upshaw.
We therefore hold, that complainants were in no default prejudicial to their, original equities, for failing to discharge, or offering to discharge, the bond of Buckner.
Nor could the complainants be justly charged with sleeping on their rights, had the true state of the facts been known to them. Until 1826, Upshaw was in no situation to comply with his part of the contract; that is, to make title. A court of chancery would have enjoined the payment of thé purchase-money before’the patent issued from the United States — and set aside the contract, if the vendor could not have made title.
Neither can this be treated as a stale claim, for another reason. The complainants went into possession under Buckner’s deeds, dwelt upon, and in good faith improved the land; and are now seeking to protect their possessions and homes, in affirmance of their deeds.
We also hold that there was privity of contract between Upshaw and the complainants. When he sanctioned Shackleford’s contract with Buckner, he became- a party to it: Buckner had assigned all its benefits to the complainants, and they must be treated as rightful assignees.; with the modifications imposed by the contracts of 1801 and 1803, between Upshaw and Shackleford.
The equitable title being in the complainants by- a contract complete in all its parts, they are entitled to a. specific decree of course, on principles too familiar to require authorities to support them. On this part of the case the court has had neither doubt or difficulty in arriving at a conclusion' favourable to a specific decree.
The complainants being entitled to relief, the next question is, on what terms ? For as -they ask the active aid of the court to coerce performance of the respondent’s contracts, they can only have such aid on the terms that they do him equity. A rule
without an-exception, within our recollection. Having dealt for an equitable title, complainants took it subject to all the equities existing between their immediate vendor, Buckner, and his vendor, Upshaw It follows, they must perform the covenants favourable to the defendant found in the contracts on which they seek relief. . Therefore, before Upshaw can be compelled to convey the.land, he is entitled to receive the purchase-money; unless his right is cut off by the. contract, or has been forfeited by his subsequent conduct.
The first objection is, that in the contract between Shackleford and Buckner, there is a power given to the latter to sell; until which time Shackleford agreed to wait for a portion of the money: that is, as to £170; provided the resale was made by the 1st of January, 1799: before which time, the sale was made to some of, the complainants.
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Mr; Justice CATRON
delivered the opinion of the court.
This is an injunction bill, to restrain the defendant from taking out a writ of possession and an execution for costs, on a recovery, of seven hundred acres of land, by Upshaw, in an action of ejectment against the complainants in the Circuit Court of Ohio. They ask a perpetual' injunction of the execution, and a specific decree for title.
The complainants, and those under whom they claim, purchased from Philip Buckner, paid a full price, and took deeds dated in 1798 and 1799.
Buckner purchased.from Lyne Shackleford in November, 1797, when the latter had no title to, or interest in the land; Upshaw, ■ the respondent, being the owner. It had been granted to Beverly Roy by the commonwealth of Virginia, in 1789, and sold by Roy to Shackleford. In April, 1797, Shackleford sold to Upshaw, and directed the title to be made to him: ' On the 20th of July, 1797, Roy conveyed to.Upshaw; and in November afterwards, Shackleford sold a second time to Buckner.
To remedy this defect of title and want of good faith, in April, 1801, Shackleford entered into a'covenant with Upshaw, by which the sale to Buckner, of November, 1797, was confirmed; and in May, 1803, Shackleford and Upshaw entered into another covenant, again confirming the contract between Shackleford and Buck- • ner; and which is more specific in its terms than the first, of 1801.
By these contracts alone Upshaw was bound : and on them the bilJJs founded, and a specific decree asked. They must be taken together: so the complainants treat them in their bill; nór can the court do otherwise.
Upshaw, having stipulated to-make title to Buckner, on receiving ¡S420; the puróhase-money,-took an assignment of the cove
nant between Buckner and Shackleford; on which it appears by the covenant of 1803, ¿6420 was remaining unpaid.
It is insisted that a bill for a specific performance of the-contracts, could not be maintained until the purchase-money was tendered to Upshaw, the vendor; and of this opinion was the. Circuit Court; and principally on this ground, taken in connection with other circumstances', dismissed the bill.
We are of opinion that if such. S'rule exists in any case, it has no application to the one before us. The complainants purchased from Buckner when he had no interest in the land; and at that time they-acquired no equity against Upshaw: yet of this fact they had no knowledge, and rested confident that they were occupying and improving the land under a good title. Nor did they have any knowledge of the' contracts between Shackleford and Upshaw, after their purchase from-Buckner, for many years; probably not until" about the time the recovery was had against them in the action of ejectment in 1.831. It Was not Buckner’s interest to give the information; and Shackleford took no further trouble on himself in the matter after 1803; he arid Upshaw residing in the' remote parts of Virginia, five hundred miles from the complainants.
Upshaw admits, in'his answer, that he did not know Buckner had sold the land; or that it was in the possession of the complainants, until about the time he brought his first action of ejectment, in October, 1818: that he. sued for the land, because he had failed to obtain the'.purchase-money from Buckner. The suit failed, because the patent from the commonwealth of Virginia was void; the country having been ceded (north of the Ohio river) by Virginia to the United States, before the land was granted.
In 1826, Upshaw, on the prodúction of the patent to Roy and his deed, obtained a. patent from the United States, in confirmation of the Virginia grant. On this he brought another suit against the complainants; and- in 1S31, recovered the land. ■ This is the judgment the bill seeks to enjoin.
During all this time, Upshaw was a stranger to the complainants : he set up no claim against them for the purchase-money due from Buckner to him: he sought the land, and disavowed that Biickner’s contract with the complainants bound him. And
so he continues to do. His principal defence in the answer to the bill is,
“
That having no contract, or privity of contract-, with the purchasers from Buckner, he conceives they can have no right to come into a court of equity to enforce a specific performance of the contract with'Buckner.”
It is manifest that at no time were these complainants afforded the opportunity to pay the purchase-money due from Buckner to Upshaw.
We therefore hold, that complainants were in no default prejudicial to their, original equities, for failing to discharge, or offering to discharge, the bond of Buckner.
Nor could the complainants be justly charged with sleeping on their rights, had the true state of the facts been known to them. Until 1826, Upshaw was in no situation to comply with his part of the contract; that is, to make title. A court of chancery would have enjoined the payment of thé purchase-money before’the patent issued from the United States — and set aside the contract, if the vendor could not have made title.
Neither can this be treated as a stale claim, for another reason. The complainants went into possession under Buckner’s deeds, dwelt upon, and in good faith improved the land; and are now seeking to protect their possessions and homes, in affirmance of their deeds.
We also hold that there was privity of contract between Upshaw and the complainants. When he sanctioned Shackleford’s contract with Buckner, he became- a party to it: Buckner had assigned all its benefits to the complainants, and they must be treated as rightful assignees.; with the modifications imposed by the contracts of 1801 and 1803, between Upshaw and Shackleford.
The equitable title being in the complainants by- a contract complete in all its parts, they are entitled to a. specific decree of course, on principles too familiar to require authorities to support them. On this part of the case the court has had neither doubt or difficulty in arriving at a conclusion' favourable to a specific decree.
The complainants being entitled to relief, the next question is, on what terms ? For as -they ask the active aid of the court to coerce performance of the respondent’s contracts, they can only have such aid on the terms that they do him equity. A rule
without an-exception, within our recollection. Having dealt for an equitable title, complainants took it subject to all the equities existing between their immediate vendor, Buckner, and his vendor, Upshaw It follows, they must perform the covenants favourable to the defendant found in the contracts on which they seek relief. . Therefore, before Upshaw can be compelled to convey the.land, he is entitled to receive the purchase-money; unless his right is cut off by the. contract, or has been forfeited by his subsequent conduct.
The first objection is, that in the contract between Shackleford and Buckner, there is a power given to the latter to sell; until which time Shackleford agreed to wait for a portion of the money: that is, as to £170; provided the resale was made by the 1st of January, 1799: before which time, the sale was made to some of, the complainants. It is true in the nature of buying and selling, that where a power of resale is given to the. vendee, he has conferred on him the corresponding power to. receive payment. But this could not affect Upshaw’s title : ■ Buckner took no interest by his contract with Shackleford; nor did the complainants acquire any by their purchase from Buckner. Their equities originated with Upshaw’s sanction, given áfter the power had expired. He might sanction the contract of Shackleford with Buckner, or not, at his election; and, of-course, modify it to suit his own interest. Having the transaction in his power, he saw proper ta become a party to the contract on the terms that he retained a lien on the land for the £‘420: First, by the covenant of 1801, he bound himself to Shackleford, to proceed against the land if he failed to receive payment from Buckner: and, Secondly, by that of 1803, he bound himself to convey to Buckner on being paid the • £420. The bill being founded on these contracts, Upsháw is entitled to be paid the purchase-money, irrespective of the stipulation that Buckner was authorized to resell, by his contract with Shackleford.
In the covenants 6f 1801, and 1803, Upshaw admits that Shackle ford sold to Buckner with his consent, and it is insisted for complainants that Upshaw must be held to have authorized Shackle-ford to sell before the contract of 1797 was made. All the evidence we find in the record of Upshaw’s sanction, is found in the contracts of 1801, and 1803; bylthese he was not bound to convey until he received payment for the land; we think in this modi
fied form is Upshaw bound, and that he never intended simply to sanction Shackleford’s sale to Buckner.
Next it is contended, respondent was negligent in not collecting a bond upon Coats, on which £250 was due. Upshaw’s covenants have no reference to this security. It was delivered over to Shackleford by Buckner for collection; credit was to be given for the money, if collected, on Buckner’s bond. The claim was diligently, pursued, but Coats proved insolvent: so that there is nothing in this objection.
Again, it is contended, and with much force, that Upshaw was' grossly negligent in failing to collect the £420 from Buckner. He received Buckner’s covenant in 1803. In 1804,-it was sent by John H. Upshaw from Virginia to Kentucky for collection; the agent was fully authorized to receive the money and to make title to the land on its payment,; which Buckner evaded, and the contract was put into the hands of another agent, O’Bannon, who-collected $200 from Buckner: and in 1814, Buckner, was sued in Upshaw’s name as assignee,, and the suit failed because an assignee could not sue upon such an instrument. During this time, Upshaw had no valid title to the land* although there can be no doubt he thought the Virginia patent valid; still he could not have coerced payment from Buckner until 1826, when the patent from the United States was obtained; had the latter resisted payment on .this ground. Under all the circumstanc.es we think Upshaw did not forfeit his right to demand the purchase-money from the complainants.
Shackleford sold to Buckner two tracts of land ;• one of a thousand acres, and this in controversy of seven hundred, acres, for the gross sum of £1020; and obtained £600 on Anderson’s bond in part payment. It is insisted that this sum must be applied in discharge of the Complainants, as seven hundred is to one thousand ; and that they are only bound for the residue.
The complainants are compelled to rely on Upshaw’s contracts . of 1801 and 1803, to maintain their claim to relief, and to affirm them in all their parts. By these, contracts it appears the seven hundred acre tract was
>
estimated at £420, and that no part of the purchase-money for this tract had then been paid by Buckner: he' was concluded from asserting the contrary, and só '-are the-complainants.
The next question is, from what time are the complainants ■bound to pay interest on the unpaid purchase-money. They insist from the time Upshaw obtained his patent from the United states, in 1826. Respondent insists he is entitled to interest from the time the debt fell due against Buckner, or the 1st of January, 1799. Until the complainants were notified that, as purchasers of Upshaw’s title, they were responsible to him for the purchase-money, and recdgnised as his debtors, they had no opportunity to make payment: as to them, the debt was payable on demand, express or implied. Respondent admits in the answer that he neither pursued the land, or the purchasers under Buckner, until he failed to obtain payment from the latter. ■ His first assertion of claim, was by the suit in ejectment in 1818; after which the purchasers cannot be heard to say, they remained ignorant of the defects in their own title, or of Upshaw’s rights; it was imposed upon them to trace up the outstanding equities favourable, and unfavourable. Had they done so, the contracts of 1S01, and ' 1803, would have been discovered, and the state of the title explained: this complainants did in 1831; and it could have been done quite as conveniently in 1818. We therefore deem the suit equivalent to a demand.
That Upshaw had no legal title in 1818, is no excuse: The complainants entered upon, occupied, and enjoyed the fruits of the land, under his title; and could, no more be allowed to disavow it while they remained in possession, than' could a tenant for years, be permitted to disavow his landlord’s title. So in effect, this court held in Galloway
v.
Finley, 12 Peters, 264. But being remote purchasers of Upshaw’s title ; not from him, but another; gnd only bound-to pay the purchase-money by the rules adopted by courts of chancery; by the same rules, the complainants are entitled to an .abatement of interest in part, accruing on Buckner’s contract: and as the right, to receive interest depends ori the time when.Upshaw notified them that they were held responsible for Buckner’s failure to pay ; and the action of ejectment, of October, 181.8, being equivalent to a demand of payment, legal interest accrued from that date.
This we deem a well-founded principle, where a personal demand existed upon real security, and is brought forward at a late
day. Interest may be allowed at the discretion of the court, only from the time of filing the bill, in such cases. The rule is estab-' lished in the Court of Chancery in England, and can be properly applied in this case. Pickering
v.
Lord Stamford, 2 Ves. jr. 272, 582. And under similar Circumstances it equally applies where mesne profits are claimed. Acherly
v.
Roe, 5 Ves. 565.
We order that the $200 paid to O’Ban non be deducted from the
£420-,
leaving $1200’ due: on this sum interest will be allowed from the 15th of October, 1818, until paid. - As the record' does not show when the action of ejectment was brought,we assume the middle of the month as the true time; the interest to be after the rate of six per cent, per annum.
The purchase-money will be apportioned among thecomplainants, according to the original value of the several tracts when purchased from Buckner: and the price paid to him taken as the measure of value. Those claiming under Buckner’s vendees, will' be governed by the same rule, of their vendor’s. If the money is not paid in a limited time, sales will be ordered, of all, or any of the tracts, at the discretion of the • Circuit Court, to ráise the' money.
The injunction at law, in so far as to restrain the writ of possession, will be made perpetual: but will be dissolved as to the judgment for costs, so that an execution may issue to collect them.
The costs of this suit in the Circuit Court, will be equally divided between the complainants, and the respondent, Upshaw; they paying half, and he the other half: and the complainants will contribute among each other, in the same proportion that they are bound to do in discharging the decree for the purchase-money. ‘ ■
The appellee. Upshaw will pay the' costs' of this court.
' On the complainants discharging the purchase-money, the contract between Buckner and Shackleford will be assigned to them by Upshaw, if he is required to. do so: and he will also be decreed to execute deéds to the complainants for the tracts they respectively claim, in such form, and with such covenants, as the Circuit Court shall direct.
The decree of the Circuit Court for the'mesne .profits, falls of course by the reversal of the principal decree.
ORDER.
Edwin Upshaw, Appellant,
v.
Buchannon and others.
This cause came on to be heard on the transcript of the record from .the Circuit Court of the United States for the district of Ohio, and on the cross appeal by Edwin Upshaw, and was argued by counsel. On consideration whereof, it is now here adjudged and decreed by this court, that the said appeal of Edwin Upshaw be and the same is hereby dismissed, with costs.
Buchannon and others, Appellants,
Edwin Upshaw.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the district of Ohio, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of.the said Circuit Court in this cause be arid the same is hereby reversed with costs, and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to proceed therein conformably to the opinion and decree of this court.