Opinion of the Court. tendered to Smith eight hundred and eighty-five dollars as the amount due to him from Hassan, and demanded a deed. He declined to accept the money, and they thereupon filed this bill to compel him to execute a deed. The circuit court, on the final hearing, did not decree a deed upon the payment of the amount which it found to be due to Smith, but determined the amount and priority of the respective liens, and decreed the sale of the lot for their payment. It ordered the original purchase money and interest to be first paid to Smith, secondly, the amount of their original lien to Fitzhugh and Bugg, then to Smith the amount of a loan made by him to Hassan to secure which he held an assignment of the contract; and, finally, to Fitzhugh and Bugg the amount due under the lien of Hopping and Ridgely which Fitzhugh and Bugg had paid when they bought at the master's sale. The complainants bring the record here, and insist that the circuit court should either have granted them the relief they asked, or should have dismissed their bill without ordering a sale of the premises. We are of the opinion that a decree of sale should not have been pronounced on the pleadings as they stand. The complainants were not entitled to such a decree, and their bill was not framed for the purpose of procuring it. A vendor of real estate, whose purchase money is due and unpaid, may file a bill asking a sale of the premises in default of payment, and thus discharge himself from the equities of the vendee; but we know of no principle upon which a vendee can file a bill and obtain a decree of sale against the vendor for the purpose of paying the unpaid purchase money. Here the complainants occupied the position of vendees. They were not entitled to a decree of sale, and did not ask it, and the defendant Smith had filed no cross bill, and was, therefore, entitled to no affirmative relief. The error of the court consisted in treating this case as in some way a continuation of the petition for the lien. But the questions arising under that petition were then determined, and these complainants, as the purchasers of Hassan's interest Opinion of the Court. under the decree, had succeeded to his position as vendee. This suit, therefore, is to be regarded as one for specific performance, and the only substantial questions to be determined are, whether the complainants have lost their rights by the forfeiture of the contract declared by Smith on the 20th of December, 1869, and if not, what amount Smith is entitled to receive. The forfeiture declared, was for non-payment of the first annual instalment of interest, and we are of opinion, the right to declare it for that cause had been waived. This interest was due on the 28th of May, 1869. The decree for the sale of the premises was made on the 1st of June, 1869. Smith was a party to that suit and made default. The contract between him and Hassan was in his custody, and, as appears by the record, was not recorded. The complainants only knew that Hassan claimed under a contract from Smith, but we can not presume they knew all its stipulations. If Smith had answered, disclosing his rights, and setting out the contract, he might have insisted upon his forfeiture if the complainants had neglected to pay the interest when it fell due. But he allowed them to proceed with their suit to a decree, and advertise the sale, and not until the sale was at hand did he notify them of his intention to consider the contract forfeited. A right of forfeiture, although tolerated, is not a favorite in courts of equity, and the mode in which Smith sought to exercise it in this case, can not be permitted. If he did not desire to answer their petition for a lien, he should at least have notified them of the terms of the contract. It only remains to consider on what basis the amount due Smith should be determined. He claims not only the purchase money due by the contract with Hassan, but also the sum of three hundred dollars loaned by him to Hassan, to assist in building the house, and secured by an assignment of the contract, Hassan agreeing to forfeit it if he did not repay the money by the 1st of January, 1869. Treating this transaction as an equitable mortgage of Hassan's interest in the lot, which it really was, it was clearly the duty of Smith to answer the Opinion of the Court. complainant's petition for a lien and set up this claim. They knew nothing of it and had no means of knowing. It was a claim resting on a basis altogether different from the right to payment of the purchase money. An answer was not necessary to preserve that right, as the petition stated that Hassan only had an interest under a contract of purchase, and sought only to affect that interest. The decree provided only for the sale of Hassan's interest, but it was his interest under the original contract, and not as affected by a secret lien. If Smith desired to protect that lien, he should have answered and disclosed it. As to that lien he was in the position of a mortgagee of Hassan's interest, claiming under an unrecorded mortgage; and having failed to set it up in that suit, he can not do it now. When the complainants bought under the decree, Hassan's interest or estate, they bought the estate acquired by him under his original contract, and not as incumbered by an unrecorded lien of which they had no notice. If Smith had set up this lien by answer to their petition, the court could have passed upon it and provided for its satisfaction in its proper order. It is now too late. The purchasers under the decree must be protected from injury through the laches of the defendant. It is not important to determine whether the tender was sufficient or not. It was not necessary, to enable the complainants to maintain this bill, that they should make a formal tender of the precise sum. It was enough that they offered Smith to perform the contract, and that he declined to recognize their right to a deed unless they would pay the money loaned by him, and interest. Smith, however, was not prejudiced by refusing the tender. By the terms of his contract he was not obliged to accept the purchase money before it fell due, except upon thirty days' notice, and this had not been given. The proper decree will be that Smith shall convey, if complainants pay to the master the amount due upon the contract within thirty days after entering the decree, with interest reckoned to the expiration of the thirty days, according to the Opinion of the Court. Syllabus. terms of the contract; the money to be paid by the master to Smith upon his executing a proper deed. The contract between Smith and Hassan called for payment in specie. Under the decisions of the supreme court of the United States, the decree will require the complainants to pay in specie the amount due on the contract, in case they elect to acquire the title. 62 493 159 211 159 241 49a 186 62 493 1. CORPORATION-acts of officers-presumption. In the absence of legisla tive enactment, or provision in their by-laws, corporations act through their 161 350 president, or those representing him. Where an act pertaining to the business of the company is performed by him, it will be presumed that the act 60a 186 is legally done and binding upon the company. 62 493 164 152 62 493 68a 39 68a 158 6493 168 317 62 493 174 226 2. SAME-vice-president. As a general rule, in the absence of the president, or where a vacancy occurs in the office, the vice-president may act in his stead, and perform the duties which devolved upon the president. In this case the charter did not mention a vice-president as an officer of the 168 528 company, but, after providing for certain officers, it authorized the company to create other officers, and the company, in its by-laws, declared there 73 53 should be a vice-president, and prescribed his duties: Held, that he might perform the duties imposed upon the president in the same cases and under the same circumstances as though his office had been created by the 62 493 charter. 62 493 78a 680 79a 156 80a 167 62 493 101a 1350 62 493 200 1364 62 493 3. SAME-deed by vice-president. Where it appeared, from the minutes of a railroad board of directors, that a resolution was adopted directing the president of the company to sell a tract of land and to execute the necessary deed therefor, under the corporate seal, and the president subsequently elected having refused to act, that the vice-president assumed to discharge 107a 1346 the duties of president, and, in strict accordance with the resolution, conveyed the land by deed, under the corporate seal, signing as vice-president and acting president of the company, but the deed was not countersigned by the secretary, as required in the by-laws of the company: Syllabus. Opinion of the Court. Held, that the deed was well executed, and amply sufficient to convey the title of the company. 4. SAME-deed countersigning. While it is usual for the secretary of such companies to attest the execution of such instruments, as the keeper of the seal, yet, if the charter of the company does not require such attestation, the deed will be good without it. Strangers dealing with the company are not required to know the provisions of its by-laws, and are not bound by them. They can only be expected to see that such an instrument is executed in the usual form by the head of the company. 5. SAME-deed. So, it has been held by this court that a deed executed by the president of a bank, with its seal attached, would be presumed to have been well executed and binding. 6. JUDGMENT LIEN-notice. Where a grantee of land had his deed duly recorded before the recovery of a judgment against his grantor, the judgment did not become a lien upon the land, and a purchaser of the same, under execution on such judgment, will acquire no title. 7. TAX TITLE-evidence to admit deed. On the trial of an action of ejectment, defendant offered in evidence, as paramount title, a tax deed for the premises, made in pursuance of a sale in 1859 for taxes, but did not offer to prove the steps indispensable to a valid tax sale, and did not produce the judgment and precept: Held, that the court did not err in rejecting the deed as evidence. APPEAL from the Circuit Court of Madison County; the Hon. JOSEPH GILLESPIE, Judge, presiding. The facts appear in the opinion of the Court. The tax deed offered in evidence was upon sale in 1859. Messrs. DALE & BURNETT & POEME, for the appellant. Mr. JUSTICE WALKER delivered the opinion of the Court: This was an action of ejectment, brought by appellees, in the Madison circuit court, against appellant, to recover three eighty-acre tracts of land, situated in that county; the declaration was in the usual form, and to it was filed the plea of not guilty; a trial was had at the May term, 1870, and re |