Purcell v. McCleary & al., 10 Gratt. 246

*ABEEN, J., delivered the opinion of the court. The court is of opinion, that as bj the contract disclosed by the title bond filed as an exhibit with the bill, it appears that Joseph Hagan and Sarah Purcell agreed to sell, and bound themselves to convey to Thomas C. McCleary two hundred acres of land on both sides of the Eouisa fork of Sandy river and on Slate creek, in one, two or three survejs, as the said Thomas C. McCleary might choose; it was the duty of said Thomas to make his selection, and cause the land to be surveyed at the place describfed.

And until such selection and survey the said Hagan and Sarah Purcell were in no default for failing to convey the same..

The court is further of opinion, that as no- such selection has been made, a survey should have been directed before any final decree was pronounced, to ascertain the precise situation of the Yates’ improvement with reference to the land claimed by said Hagan and Purcell at the place described in the title bond, so as to enable the court to decide whether the two hundred acres could be laid off by beginning at the narrows above said improvement, and then down the river on both sides thereof, so as to adjoin and not to include said improvement, there being a latent ambiguity in the description of the land sold, which can only be cleared up by an actual survey.

The court is therefore of opinion, that said decree is erroneous; and the same is reversed with costs. And the cause is remanded to said Circuit court, with instructions to cause said two hundred acres to be surveyed in one, two or three surveys, as either party may direct; and for further proceedings in order to á final decree. Decree reversed.