The only question presented for our decision, is, whether Davis is properly chargeable for the use and occupation of the lands in question. It must be observed that he does not appear to have been concerned in the purchase, or that he ever derived any benefit from the' possession. The record exhibits him as a mere accessorial parity, uniting with his co-plaintiff, the vendee, in the notes for the purchase money, and taking a conveyance to himself, doubtless for his own indemnity against the consequences' of the liability he thus incurred. Davis’s contract was to pay the purchase money, and from this he was relieved by the sale being annulled; the decree vacated the deed and destroyed the obligation of the notes; consequently, no further duty rested on him growing out of his contract. Upon what ground, then, shall he be charged for the occupation of the land by his principal, the vendee ? The sale was declared void, without requiring the value of Boaz’s possession to be paid as a condition precedent — this is merely a consequential requisition, and intended to make the vendee do justice to his vendor, who does not appear to have been in fault, though, his agent was.
There is, then, no subsisting contract, which will bind Davis to pay for the use and occupation of his co-plaintiff, and we can discover no such obligation upon him founded in moral justice. But if there was a mere moral duty, it could not be enforced — he would have the right to stand on his contract, and insist that the measure of his liability should be thus graduated. We can discover no error in the decree of the chancellor, and it is therefore affirmed.