Gee bn, Judge :
This suit was instituted by the heirs of Joseph Dodson in August, 1880, to set aside arid rescind a deed or agreement made by Hice G. Iiopwood, of Pennsylvania, with their ancestor Joseph Dodson, David W. Waldeck and Lewis Schaefer, whereby was sold or agreed to be sold a certain tract of land in Lewis county, West Virginia. This deed or agreement was as follows :
‘‘This agreement, made the 26th day of August, 1865, between Rice G. Hopwood, guardian of Julia F. Hays, and attorney in fact of Elizabeth Hays and Sarah E. Hays (now Dawson), widow and heirs-at-law of Ebenezer Hays, dec’d, all of Fayette county and State of Pennsylvania, of the first part, and David W. Waldeck, Lewis Shaffer and Joseph Dodson, of Lewis county, and State of West Virginia, of the second part, witnesseth :
That the said parties of the first part, for the consideration hereinafter mentioned, have granted, bargained and sold, and by these presents do grant, bargain and sell, unto the said parties of the second part, all their right and title in and to the equal undivided half part of the following described real estate, to-wit, to a tract of land situated and lying in the said county of Lewis and State of West Virginia, containing [590]*590three hundred and eighty acres, be the same more or less, and adjoining lands of Richard P. Camden, David W. Wal-deck and others, now in possession of Jonas Simmons and Joseph Dodson, tenants of the said party of the first part.”
Then follows the consideration ($1,900.00) which the ven-dees agreed to pay, with a stipulation, that, ‘‘when the whole purchase-money is paid, a good and sufficient deed is to be made and delivered by the parties of the first part;” and the agreement concludes : “The parties of the second part are hereby authorized to take possession of the land as soon as they desire.” It is signed by Rice G. Hopwood individually and by each of the vendees.
Rice G. Hopwood appears on the very face of this agreement to have had no title to the land at that time ; nor did he have any authority to sell. Of course he could not sell the interest of his ward, Julia F. Hays, or any part of it. He could not sell the interest or any part of the interest of Sarah E. Dawson; for she was a married woman, and as the law then was, she .could not even by joining with her husband and duly acknowledging a power of attorney authorize him to sell her interest or any part of it in this land. And while it is true, that Elizabeth Hays as a widow had a life-estate in one third of the land and the power to authorize him by power of attorney to sell her interest, there is not a particle of evidence to show, that she ever did execute to him such a power of attorney, and that she ever did, is denied in the pleadings. We may then safely assume, that on the 26th of August, 1835, when this agreement was executed, no right or title either legal or equitable passed to the vendees by this agreement. They however thought otherwise and paid to Hopwood, who had no title then, $775.00 in cash and took possession of the land, as by the agreement they were expressly aut.horized*to do, and proceeded to clear and fence the land, and in five years they had cleared and fenced between fifty and seventy five acres of the land, perhaps more, and built a house thereon. In the mean time Julia F„ Hays, the infant, had died, and her interest in the land had descended to her mother and married sister, Sarah E. Dawson; and they being then the owners of the whole title of Ebenezer Hays to this land con[591]*591veyed one undivided half of said land to Johathan M. Bennett. on the 19th of February, 1870, the husband of Sarah E. Dawson uniting in the deed. Shortly thereafter by a suit in equity this tract of land was equally divided between Jonathan M. Bennett and his vendors, Elizabeth Hays and Sarah E. Dawson. In making this division some thirty acres, which had been improved by the vendees of Hop-wood, were assigned to Bennett and a • deed made to him. Shortly after this, but when, it does not appear, Elizabeth Hays and Sarah E. Dawson, her husband uniting in the deed, conveyed to Hopwood the moiety of this tract of land, which the court in the partition aforesaid had assigned to them. So that then Bennett owned in severalty one moiety of this tract of land; and Hopwood owned in severalty the other moiety and was then for the first time in a condition to perform his contract aforesaid, the only difficulty being, that he had agreed to convey an undivided moiety and could only convey a moiety of it in severalty, which moiety his vendees might object to receive, as they had had no voice in the division, which they would have had, if an undivided moiety hah been conveyed to them according to the agreement. Dodson, one of the vendees of Hopwood, did object to taking this moiety of the land in severalty, which Hopwood was willing and desirous on receiving the balance of the purchase-money to convey to his vendees. But they abandoned the land all of them, not being willing to take it in lieu of the undivided moiety of the whole tract, which under their contract, they claimed, they had a right to demand ; and the heirs of the said Dodson brought this suit in chancery to have this contract rescinded as incapable of being executed by Hopwood and to have the money, which they had paid to him, restored to them and to have him do certain other things, which will presently be spoken of.
This suit was brought in the County Court of Lewis county by the heirs and administrator of Joseph Dodson against Bice G. Hopwood and the co-vendees of said Dawson, Wal-deck and Schaefer, and the vendors of Hopwood were also made defendants. The cause was moved into the Circuit Court of Lewis county; and Hopwood died. His heirs filed an answer in the nature of a cross-bill, in which they ask, [592]*592that tlie said contract made by the plaintiff’s ancestor and others be specifically enforced. The said court decided that the heirs of Hopwood had a right to the specific performance of the contract. Did the court err in this conclusion ?
It is argued, that the court ought not to have specifically enforced this contract. The first argument against enforcing this contract specifically is, that, when it was entered into, there was a want of mutuality in the contract, and the rule is, that a contract to be specifically enforced must be mutual, and its mutuality is to be judged of, at the time it is entered into. In this case, when the contract was entered into, the vendor had no title to or authority to sell the land or any interest in it; and therefore the contract was not mutual for want of interest in the vendor. While this is doubtless correct law as a general proposition, it has no application in this case; for the contract on its face, as we have seen, showed, that the vendor at that time had no interest in the land, which he undertook to sell, and the vendees must be conclusivély presumed to have known this, and to have agreed to purchase the land upon the faith that the vendor could and would obtain the title thereto, before by the contract he was required to make to the vendees a good and sufficient deed, that is, before all the purchase-money should be paid ; this he actually did. .The vendees in this case Jtnowing, that the contract could not, at the time it was entered into, be carried out by the vendor, and that it was a nullity as to him, nevertheless went on for years acting as though it was a subsisting contract binding on.the vendor. Such conduct must be regarded as estopping them from objecting, that the contract was a nullity. Ordinarily the inquiry is not, whether the vendor could make a good title, at the time the contract was made, but whether he 'can do so, when required t.o do so in the suit, or where a report is made in the cause on his title (Bennett College v. Carey, 3 Brown C. C. 390; Wynn v. Morgan, 7 Ves. 202). At least this will suffice, if there has been no unreasonable delay, and time is not material (Langford v Pitt, 2 P. Wms. 629).
In the case before us the good and sufficient deed was not to be made till after an infant obtained her majority, and all the purchase-money was paid. So that the time, when the [593]*593vendor was required to make such deed was many years in the future and had not expired when this suit was brought. ‘.The vendees having been at once placed in possession, it is obvious, that time was not regarded as material by the parties. When this is the case, courts often allow time for the completion of the title. (Coffin v. Cooper, 14 Ves. 205; Duke of Beaufort v. Glynn, 2 Sm. & G. 213.) Even when the vendor has no title, at the time he makes the sale, yet, if the purchaser acquiesces in steps taken by the vendor to :get the title, he will be bound to accept the title, if made out at the hearing. (Hoggart v. Scott, 1 R. & My. 293; Salisbury v. Hatcher, 2 Y. & C. C. C. 54.) In the present case the report of the arbitrators to divide this land into two equal parts states, that these vendees agreed to take the portion of the tract, which might be laid off for them under this contract nearly five years after it was made. They were parties to the chancery suit brought by Bennett to partition «the land and assign a moiety in severalty -to the parties, for whom it appears in the contract Hopwood was acting:, and who shortly after made Hopwood a perfect title to a .specific moiety of this land. After these occurrences and in view of the fact, that the vendees knew the condition of Hopwood’s title, when he undertook to sell, they can not object, that it was imperfect, when the contract was made, it being perfect, when the suit was instituted.
In Vail v. Nelson, 4 Rand. 478, 481, Judge Green said:— When a purchaser, when he makes his contract, knows, that there is a defect in the title, and that it will 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 title in the execution of the •contract, he can not afterwards complain.” In the same case he further said: — “ The purchaser knew, that no conveyance ■could be immediately made; and there was no possible means of removing the impediment but by efflux of time; yet with this knowledge he made the purchase and proceeded to carry it into effect, as far as under existing circumstances it could be done. And indeed there was no time stipulated for making the conveyance.” In that case «the contract was executed.
[594]*594In this case the vendees knew, that a title to one third of the property bought could not be made for many years, till Julia F. Hays, an infant, should reach her majority. Yet with this knowledge they made the purchase and proceeded to carry it into effect by paying more than a third of the purchase-money in cash and taking possession of the land and improving it by clearing, fencing and building a house thereon. They can not now object, if a satisfactory title can now be made to them. As was said in Drisel v. Jordan, 104 Mass. 407: “It is not essential, that the vendor had at the time of the contract such title and capacity to convey tlie-property or such means and right to-acquire it, as-would enable him to fulfil it on his part. It is sufficient, if he is abie-te convey, when he is required by the contract or the equities of the ease. And, when time is- not of the essence of the contract, the vendor will be allowed a reasonable time to obtain a perfect title.” (Mays v. Swope, 8 Gratt. 46; Godden v. Vaughn's Ex’r, 14 Gratt. 125; Rader v. Neal, 13 W. Va. 374, pt. 4 of Syll.) Under the circumstances of this-case the fact, that, when this- contract was made, Hopwood could not make a good title to the land, which he sold, ought not to prevent the court from enforcing it specifically on the application of his heirs.
But a much more plausible reason is urged, why the contract should not have been specifically enforced- by the Circuit Court, that is, that the heirs of the vendor never were nor could be put in a condition to convey the land, which he contracted to convey. He contracted to convey an undivided moiety of a particular tract of land. All they ever could convey was a particular half of this- tract by certain-fixed boundaries. To this they had a good title in severalty; but neither he nor they ever acquired any title to an undivided moiety of said tract, and i.t was this, he contracted to-convey. If the vendees had this, they would have a voice in the partition, which might be a matter of great importance to them.
But the record shows, that whatever might ordinarily be the importance of giving" the vendees a voice in the partition, and however much indiposed a court might be generally to compel a vendee to take in severalty a particular-[595]*595part of a tract of land, when, he had bought an undivided .share thereof, the conveyance in this case of the particular half in severalty to the vendees, as the heirs of the vendor •offered to do, would have been a substantial compliance with the contract. In this case the vendees did in fact have a voice in the partitioning of the land, though they had no legal right to demand, that they should be consulted; and it was in their judgment as fairly and justly divided with reference to tlieir interests, as it could be done. The report of the arbitrators appointed to divide the land on its face shows, that the vendees were consulted and were satisfied with the division, when it was made. "When some of them afterwards became dissatisfied, and Bennett brought a cliancery-suit to compel a division, these vendees were made parties defendant. They filed no answer; and it was alleged in the bill, that they, the plaintiffs in this suit, were satisfied with the division and had signified their willingness to accept a deed according to the division. This statement was not denied and must be regarded as confessed to be true. The court actually divided the land substantially, as it had been divided by the arbitrators. The plaintiffs in this suit can not now be heard to complain of this division. The decree of the court in that case shows, that the court did not regard these vendees as persons, who had a right to demand to be made parties. But though they were neither necessary nor legitimate parties to that suit, and though the eourtin its decree declared, that their rights should not be prejudiced by the decree, yet they were represented in the suit by persons, whose interest it was to protect them in their rights and to see, that their interests were not overlooked. The moiety of the land, which Hopwood had sold to them, was assigned to Elizabeth Hays and John Dawson and Sarah E. Dawson, his wife, who were the parties, for whom Hopwood was acting, when he sold this land. These vendees of Hopwood were tenants of these parties and it was their interest to have this land so divided as not to prejudice the interests of their tenants. We cannot therefore think, that any different portion of this land would have been assigned to Bennett, if a .conveyance of an undivided moiety of the land had been ¡nade to these vendees, before that partition suit [596]*596brought. If this be so, they were not prejudiced by the partition being made. But it was quite proper for the court to' declare, that this partition should in no manner prejudice their rights under the contract, the specific performance of whiph was sought to be enforced in this action. For these-reasons I am of opinion, that the court did not err in refusing to rescind this- contract and in holding’, that Iiopwood’s-heirs had a right to have it specifically enforced. I can not see how the court could well reach any other conclusion in view of the fact, that both the vendees other than- Dodson in their answers ask, that the contract be specifically enforced, and that even the plaintiffs in tlie supplemental bill say, that “they are willing to have this contract specifically executed.” But they all insisted, that in executing it specifically they should be allowed certain credits on the purchase-money, which was not allowed by the contract.
I propose now to consider these credits claimed by them or by some of them, and determine, whether the court erred in refusing to give any such credits. The first inquiry I shall make is: Ought the court to have given the vendees-any credit for the improvements put upon the land after their purchase from Hopwood of an undivided moiety ? When the vendees made this purchase, they were expressly authorized by the contract of purchase “to take possession of the land, as soon as they desire and they paid down in cash $775.00. As this tract of land was nearly all of it uncultivated and in woods, this provision in the contract shows, that the understanding between them and the vendor was, that they were at liberty to go upon the land and clear and fence it, so as to make it of some value to them. They were authorized in other words to improve the land. They must be regarded as by this contract made tenants in common with Elizabeth Hays and Sarah E. Dawson, the two latter holding the legal title to the whole tract, and the vendees holding the equitable title to it as tenants in common, the widow and heirs of Ebenezer Hays having one undivided moiety, and the vendees having the other, the parties being equitable tenants in common. The law with reference to one tenant making improvements on land held by him as such is thus stated in the notes to Agar v. Fairfax, 2 White [597]*597and Tudor Lead. Gas. (4th Am. Ed. from the London Ed.) 916.
“It has been held repeatedly in accordance with the opinion expressed Story Eq., § 655, that, where a tenant in common has laid out money in erecting buildings or making other substantial improvements, the court may in entering a decree in partition direct, that the portion of the premises, which has thus been enhanced in value, shall be assigned to him or, if this can not be done conveniently, and it becomes requisite to proceed to a sale, that the purchase-money shall he so apportioned, as to re-imburse him for his outlay.- Green v. Putnam, 1 Barb., 500; Concklin v. Concklin, 3 Sandf. Ch’y 64; Felix v. Randin, 3 Edw’ds Ch’y 323; Watson v. Duncan, 44 Miss., 642; Dean v. O'Meara, 47 Ill.120; Courts v. Bibner, Id. 514; Lonvalle v. Meanaugh, 1 Gilman 39; Boraugh v. Archer, 7 Dana 176; Hall v. Paddock, 6 C. E. Green 311; Obert v. Obert, 1 Halst. Ch’y 337; Doughady v. Crowell, 3 Stockt. 201; Kurtz v. Hilmes, 53 Ill. 514; Martindale v. Alexander, 26 Ind. 104; Swan v. Swan, 8 Price 518.”
In Hall v. Paddock, 6 C. E. Green 211, it was held to be immaterial, whether the tenant in common making the improvement knew, he was but a tenant in common, or believed, he owned the whole land himself. The only good faith required on the part of a tenant in common in making ifn-provements is, that he should honestly believe, that they would enhance the value of the property to all concerned. If this appears, he is entitled to remuneration for the increase of value resulting from his act.
A different view was taken in Scott v. Guernsey, 48 N. Y. 106, where it was held, that there is no equitable or legal ground for allowing a tenant in common compensation for improvements, which he made with a full knowledge of the title of his co-tenants and- without their consent.
When as in Concklin v. Concklin, 3 Sand. Ch’y 64, the complainant is under the erroneous impression, that he is the sole owner, or when he has obtained the assent of the owners, or when they stand by and do not object, the case is a different one, and the chancellor may.properly take the increased value of the land into view in making the partition. [598]*598In this decision the Court relied on Putnam v. Richards, 6 Paige 390. But White and Tudor in their notes, while not controverting the correctness of the principles laid down in this case in 6 Paige, which was not a case between co-tenants, say : — “It does not necessaiily apply to the case of a co-tenant, who is unable to use the property in its existing condition and may be compelled to put up fences or erect buildings in order to render it available to himself and the other owners. His position is therefore different from one, who though innocently holds and improves property, to which he has no right.” In such case according to the civil law the rule would seem to be, that he is entitled to remuneration for what he has done after deducting a fair compensation for any benefit, which he has derived from the property while in his possession. But we need not trouble ourselves about these distinctions; for the cases seem all agreed, that in a case like the one before us, where improvements such as clearing, fencing and building are made by one tenant in common with the assent of the others, or where they know, that such improvements are being made, and do not object, which was certainly true in this case, such tenant in common is entitled to the full benefit of the in-' creased value of the land, either by having his improvements assigned to him at the rate the land would have been worth before the improvements were made, or, if the land is sold, to have an additional part of the price allowed him, which shall be equal to the increased price obtained as the result of his improvements.
In the case presented by this record, if the widow and heirs of Ebenezer Hays had had good title to this tract of land and had not conveyed one undivided moiety thereof to Jonathan M. Bennett to make good and indisputable their title to the other moiety in a partition of -the land between them and the vendees of Hopwood, the said vendees would clearly have been entitled to be reinbursed for the enhanced value of the land resulting from the improvements made upon it. Now the'conveying of one moiety of the land to Bennett in order to enable the heirs of Hays to make a perfect title to Hopwood, that he might comply with his contract, should not prejudice in any manner the vendees of Hopwood. But [599]*599Bennett and Hopwood each having conveyed one undivided moiety of the land, after its value had been enhanced by all the improvements made upon it by the vendees of Hopwood, it is obvious, that the heirs of Hopwood in the particular one half of the land, which descended from their ancestor, got a parcel of land equal to half the value of the tract when unimproved and h-'.lf the value of the improvements made thereon by the vendees. Whereas, we have seen, these ven-dees as tenants in common with the widow, and heirs of Hays were entitled in the partition to a parcel of land equal to half the value of the entire tract and all their improvements added. So that Iiopwood’s heirs could convey to the ven-dees a parcel of land less in value than the parcel they were entitled to by one half of the enhanced value resulting from their improvements.
The Circuit Court ought therefore to have credited these vendees on the balance of the purchase-money due from them with one half of the enhanced value of the land by reason of their improvements, at the time one undivided moiety of it was conveyed to Bennett on February 19, 1870. The improvements made by the vendees since that date have been, it is to be presumed, paid for in effect in the partition made under the decree of November 6, 1872, in the suit of Bennett v. Hays’s heirs by the defendants in that suit receiving in value more than one moiety of the tract, and of this the vendees of Hopwood received the benefit, when this portion of the land so divided was sold as theirs. There is no hardship in this for Hays’s heirs then received by this conveyance to Bennett what they regarded as the value of one half of the land enhanced by one half of the improvements.
I s there any other credit, to which these vendees are entitled, which was not allowed-to them by the Circuit Court? They claimed to have paid certain clerk’s costs and surveyor’s costs in the ejectment suit brought against them by Bennett lor this land in the District Court of the United States for the District of West Virginia at Clarkburg. The court should have directed a commissioner to .inquire into this and also into what was the enhanced value oí' the entire tract by reason of the improvements put upon it by these [600]*600vendees. But it may be claimed, that these vendees, tenants in common with the vendor, as an offset to the allowance to them of half the enhanced value of the land by reason of the improvements should be charged with the rents and profits made by them out of said land. They are not liable to be so charged in this case. At common-law as tenants in common they had a right to occupy and use any part or all of the land without being accountable in any form or to any extent to their co-tenants, unless they contracted with them for such accountability or ousted or excluded them from possession, or unless they destroyed or wasted the common property, none of which they did. (1 Coke 787, note R.) But the statute of Anne, chap. 16, § 27, was passed to remedy this defect of the common law; and a similar statute was passed in this country at an early period and has ever since continued in force. In the Code of "Virginia of 1849, chap. 145, § 14, p. 586, it is to be found in the same words, in which it stands in the Code of this State of 1869, chap. 100, § 14, p. 541. The section is as follows :—
“An action of account may be maintained against the personal representative of any guardian or receiver and also by one joint tenant or tenant in common or his personal representative against the other receiving more than comes to his just share or proportion against the personal representative of any such tenant or tenant in common.”
In England in the case of Henderson, v. Eason 17 Ad. & El. (N. S.) 701 (79 E. C. L.) decided in 1851 it was in effect decided, that this statute makes a tenant in common liable to account to his co-tenant, only when he receives money or something else given or paid by another, which all the tenants are entitled to in proportion to their interest as such, of which one receives more than his just share, and not when he merely has the sole occupation and enjoyment of the property, even though by his own industry skill and capital he makes a profit by such occupation and enjoyment and takes the whole profit to his own use (3 Rob. Prac. New Ed. 173). Before this decision, which settled the construction of this statute in England, the preponderance of judicial opinion there did not accord with this construction. [V. C. [601]*601Wigram’s opinion in McMahon v. Burchell, 3 Hare 97 (25 Eng. Ch’y R.) decided in 1843; Ld. Ch'r Cottenham, 2 Phill. 127 (22 Eng. Ch’y R.) V. C. Shadwell in Henderson v. Eason, 15 Sim. 303 (38 Eng. Ch’y R.) decided in 1846; Eason v. Henderson, 12 Ad. & El. (N. S.) (64 E. C. L. 986), decided in 1848]. But. after a very careful review of the whole subject the Court of Appeals of Virginia in the case of Early v. Friend, 16 Gratt. 21, decided in 1860, overruled the decision in Eason v. Henderson and held, that the English construction of the statute was erroneous, and that
1. One tenant in common may maintain a suit in equity against his co-tenant, who has occupied the whole of the common property, for an account of rents and profits.
2. Whenever the nature of the property is such as not to admit of its use and occupation by several, and it is used and occupied by one only of the tenants in common, or, whenever the property though capable of use and occupation by several, is yet so used and occupied by one as in effect to exclude the others, he receives more than comes to his just share and proportion in the meaning of this statute.
3. When the common property is rented out by one.tenant in common, he is accountable to his co-tenants for their share of the rents, which he has received. And when he occupies and uses the whole property himself, he is liable to his co-tenants for a reasonable rent for it in the condition, in which it was, when he took possession.
4. Interest is to be paid upon the rents found due from the tenant in common in possession to his co-tenants.
Prior to that this construction of the statute had been acted on, as though it were the law, without question in Ruffiner v. Lewis, 7 Leigh 720. See also Thompson v. Bostick, 1 McMul. Eq. 75, decided in South Carolina in 1830; Holt v. Robertson, Id. 475; Hancock v. Day, Id. 69; Sargent v. Parson, 12 Mass. 149; Wheeler v. Home, Willes. 208; Sturton v. Richardson, 13 Mee. & W. 17 (79 E. C. L. 718). The principles laid down in Early v. Friend, 16 Gratt. were again followed in Graham v. Pierce, 19 Gratt. 28, decided in 1864. The first of these cases decided in 1860 is a binding authority upon ns; and I am satisfied, that it is the just . and true exposition of our statute.
[602]*602Applying’ the principles of law laid downin that case to the one before us, as the vendees of Hopwood as tenants in. common were entitled to one moiety of a tract of more than three hundred acres, and they never used or occupied in any manner more than about one hundred acres, and their use and occupation of this- one hundred acres in no manner excluded the other tenants in common from a like use and occupation of the remainder of the tract, which was equally desirable for a like use, they can not be held to have received more than came to their just share and proportion under the true meaning of the statute. Had they rented out any portion of this land held in common, the case would have been different, and they would have been properly chargeable with one-half of the rents, they so received, as by receiving-more than one half of the rents from other persons they would have received within the meaning of the statute more than their just share and proportion. The case of Ruffner v. Lewis, 7 Leigh 720, 743, 744, may also be cited as showing what expenditures for permanent improvements should be allowed to a tenant in common, when they are to be offset against rents and profits received by him. The opinion in that case consists with the views, which I have expressed, varied by the fact, that in that case the tenant was justly liable to be charged with the rents and profits of the common property, while the vendees in this case are not so liable.
Is there any other credit, to which the vendees of Hop-wood are entitled, which was not allowed them by the court below? They were entitled to have repaid to them all clerk’s and surveyor’s fees paid by them in the ejectment suit brought by Bennett against them in the United States District Court. The Circuit Court- should have directed a commissioner to ascertain this amount and also the enhanced value of the entire tract of land -by reason of the improvements put upon it by the vendees, as of the date when the said deed was made to Bennett of the undivided moiety of the land, that is, prior to February 19,1870. And, if the vendees did pay any of the costs of this suit, as it w-as done in the necessary defence of the title to the property, which Hopwood had covenanted to make good to them. [603]*603they were entitled to be credited by the amount of the costs of the suit proven to have been paid by them; but they were not entitled to be paid the $50.00, which they allege was due to Hoffman as their counsel in the cause. It was not their duty to employ counsel in that, case but the duty of their vendor or his principals, the widow and heirs of Hays, who claimed the entire tract of land. Nor were they entitled to any credit for costs paid in the unlawful de-tainer case brought by them against Longwood. That suit would not, if it had been decided in their favor, have established their title to the land or that of their vendor; and, so far as the record shows, it was brought of their own accord and after the incurring of the costs it was dismissed by them. I can see no propriety in charging these costs to Hopwood; Neither he nor those, he represented, were benefitted by the proceeding; nor would they have been, had it terminated differently. If such a proceeding had to be instituted, it •should have been done by the widow and heirs of Hays, if they chose to do it, not by these vendees.
There was no error in charging the vendees with interest on the unpaid purchase-money, as it was charged in the •commissioner’s report. No abatement should be made of this interest because of any abandonment of the land by the vendees.
There was no error in charging the vendees, the equitable owners of the land, with the taxes paid on it by one of the executors of Hopwood in the year 1881. A portion of-these taxes was paid to redeem the land, which had been returned delinquent.
The amount abated by the court below from the pur•chase-money due on the land because of deficiency in quantity was correct.
The court also in the decree of March 26,1883, properly •adjudged, that the two undivided third parts of this land •owned by Joseph Dodson’s heirs and Waldeck should first be sold to pay whatever was due on it; and that the remaining one undivided third belonging to Schaefer should not be sold, unless it was necessary in order to raise the requisite amount to pay the liens on the land, as Schaefer had more than paid his proportion of the purchase-money.
[604]*604The decree therefore of March 26,1888, must be in all respects affirmed except that portion of it, which adjudges, that as a vendor’s lien on the land there was due after deducting payments and abatement because of deficiency in the-quantity of the land a balance of purchase-money on the sale to- Dodson, Waldeck and Schaefer principal and interest, the sum of $943.96 with interest thereon from March 26, 1883, which portion of said decree must be reversed and the court, when this cause is remanded, must refer it to a commissioner to ascertain correctly the amount of the vendor’s lien or balance of the purchase-money due after making the abatements and credits above directed and in the manner above indicated. But the reversal of this portion of the decree under our statute must not be held to affect the title or rights of the purchaser, Bennett, of the . two-undivided third parts of the land; and the decree of June 25,1883, must be affirmed in all respects-; and the ajipel-lant-s must recover of the appellees, the heirs- of Hopwood,, their costs in this- Court expended ; and. this cause must be remanded to- the Circuit Court of Lewis .county to be further proceeded with according to the principles laid down in this opinion and further according to the principles and rules governing courts of equity.
Reveesbd usr Bart. Remanded.