delivered the opinion of the Court:
The appellants submit, first, that “the cause was not tried in the presence of the guardian ad litem, nor were the depositions taken in his presence.” Although that was a ground of error assigned by the petition, it was *581not insisted on by the counsel, in argument; nor would it have availed them, even if they had seriously insisted on it, because the decree shows, that the cause was heard upon the answer of the infants by their guardian ad litem, and he was therefore, duly before the court in the interest of the infants. There is nothing in the record to show, whether the depositions were legally and properly taken, or not. No objection was made in the court below to the hearing of the cause upon the depositions, it is certainly too late to raise the objection for the first time in the Appellate Court.
The second ground of error submitted is, that “the facts clearly show that the first note was received as a payment on the contract, and that the renewal by Seck-man alone, clearly discharged Nice from any liability on said note, or for the payment.”
The written contract, exhibited by Nice, with his answer, as appears in the manuscript record of this cause, states, “when the said land is surveyed and a plat furnished the said Stephenson, he is to make the said Nice a deed of general warranty for the said land, on the payment of the first payment, for the first payment the said Nice has executed his note with A. J. Seckman as his security.” The contract also states, that the first payment was to be “thel st day of June, 1869,” * * * * “with interest” * * * * “from its date.”
As to the circumstances attending the making of the contract, Stephenson alleges by his bill, that “after some conversation as to the price and terms of payment, Nice said he would take a certain piece at the price of $4.00 per acre, and pay $200.00 per annum with interest; the first payment to be in the Spring aof 1869, after the sale of some lumber he expected to have for sale at that time. Your orator told Nice, that he did not know him, and would not sell to him without security for at least the first payment. Nice and Seckman went to one side and after some agreement between themselves they came into the room and remarked to your orator, that Seckman *582would join Rice in the note for the first payment, and 'he would hold the land as his own until the first payment was made thereupon, upon the express agreement that no deedjwas to be made, until the first payment was made to him by the parties, whom he understood were to be joint owners until- the first payment wras made, made Rice a title bond for the land,” &c. Again, the complainant alleges: “The terms of the contract, as well as your orator remembers were as follows : the first payment to be made in the Spring of 1869, with interest, May or June; the note payable in the Parkersburg-National Bank, and $200.00 per year thereafter, with interest until all was paid.” * * * * “and your orator, upon the receipt of the first payment, was to make a deed of general warranty for said land.” That “about the time the first payment became due, Seckman came to his house, and told your orator, that Rice had gone to Cincinnati with lumber to sell for the payment of the notes in bank, but that he could not get back in time to meet the payment when it was due, and that he wanted to renew the note. At the time your orator was sick and could not go to the bank, but he wrote a note to the bank to permit Mr. Seckman to renew the same for a short time ; this was done, but the last note -was protested, and taken up by your orator, who had it discounted for his benefit.
Rice answers to that matter, “ that it is true as is alleged in complainant’s bill,” that he bought of complainant the tract of land mentioned in said bill, “ and for which he agreed to pay in the manner alleged therein, and gave A. J. Seckman as security for the first payment for $200.0.0,” but denies that Seckman -was a joint purchaser, “ or had anything to do with the purchase except as endorser of the note for the first payment,” and exhibits the written contract to show that “ he was sole purchaser.” He “ also admits that at the time of the said purchase, the complainant expressed his unwillingness to sell the land without a payment in hand or security therefor, and seemed to have confidence in said *583Seekman, and was willing and did take him as security for the first payment, in a note given by respondent, negotiable and payable in the Parkersburg National Bank, to the order of A. J. Seekman,” (which note he exhibits with his answer). Pice alleges in his answer, “that before the maturity of the note, Seekman was largely indebted to respondent, and he made an arrangement- with Seekman to pay off the note to complainant when it should become due, and informed the complainant that he had paid Seekman the amount of the note, and to look to him (Seekman), for the money;” and that “ complainant, well knowing that said Seekman had the money, permitted him at the maturity of the note, to lift respondent’s note, and took Seckman’s individual note instead;” and “ that at the time of the maturity of said note, to-wit, June 1, 1869, he did not ask for nor want further time on it, as the matter was then entirely in the hands of said complainant and said Seekman, which the complainant well knew and understood, and the representation made by Seekman, and the arrangement made between complainant and said Seekman concerning the renewal of the note, was entirely unauthorized by respondent, and for which he is in no wise responsible.”
On the part of the complainant, he testified himself as follows :
“That in the early part of the winter of 1869, Josephus Pice and A. C. Seekman came to my house in Wood county, to purchase apiece of land owned by mein Pleasants county. I had no acquaintance with Pice, but had with Seckman’s father. Pice proposed to buy two hundred acres on a credit, but I refused to sell unless he made a payment in hand ; this he could not do. After some conversation on the subject, Pice and Seck-mau went out, and after some arrangement between them, as I supposed, they came back, and proposed that they would give me a note for f200.00 the first payment, payable in bank about the 1st of June thereafter, *584saying that they would by that time move lumber to ' Cincinnati, and get return for it, and would pay the note; I consented to this, but on the express condition that I would not make a deed until the money was actually paid; that I would not regard the note payment until I got the money. I had the note discounted in bank, and about the time it became due, Seckman came to me and said that Rice had gone to Cincinnati with their lumber, but had not come back, and he wished to renew the note. I was sick at that time, but wrote a note to Mr. Moss, the cashier of the Parkersburg National Bank, to take a new note from Seckman, and I would endorse it when I came in; this was done, and the note fell due in August, but was protested for non-payment, and paid by me on the 24th day of August, 1869, as I see by bank book; I did not intend the cashier to give up the note signed by Rice, until the new one was paid. The note at the time of payment in August, was $202.53. I have no copy of the title bond for the land, but my recollection is, that it stipulated that no deed was to be made until the money was paid.”
On behalf of the defendants, the said A. J. Seckman testified, that he was present when Rice contracted to purchase of Stephenson the land; that he and Rice were not partners, nor in any way jointly interested in this purchase, it was an individual matter between Rice and Stephenson; that Stepenson made objection to taking Rice personally for the first payment. The contract, as he understood it, was: “Mr. Rice was to pay $4.00 per acre for the land; the first payment of $200.00, was to be made on the 1st day of June, A. D. 1869 ; the note was made payable to my order at the Parkersburg National Bank; I endorsed the note, and Stephenson took the note so endorsed as payment for the first $200.00.”
The balance of. this witness’s testimony may be seen from the following questions and answers:
Question. — At the same time was there a written contract entered into between you and Rice, by which Rice *585agreed to place under your control, and deliver, if necessary, to you lumber and other property taken from the land, sufficient to secure you in the event of your having to pay the note ?
Answer. — There was a written contract to that effect, drawn by David Johnson, as dictated by K. B. Stephenson.
Question. — Did Mr. Stephenson have knowledge of the terms of this agreement between you and Mr. Bice ?
Answer. — I cannot state positively.
Question. — Did Bice ever comply with the terms of the agreement so entered into between you and him ?
Answer. — He did.
Question. — Did you go to Parkersburg about the time the note became due, and have the note renewed by giving your individual note, negotiable and payable at the Parkersburg National Bank of West Virginia ?
Answer. — I was at Parkersburg on the day this note became due, and lifted said note by paying the interest then due on it, and gave my personal note, payable in sixty days, for $200.00, and paid the interest in advance on this note; my individual note was payable to J. M. Stephenson.
Question. — Did Mr. Bice know anything about you getting the note renewed at the time it was done ?
Answer. — I cannot state that he did.”
sy1Iabua i Such being the proof of the facts in this cause, it is not necessary to comment on it, as it clearly shows that Stephenson did not receive the first note as a payment, but in fact that it was the distinct understanding that a deed should not be made until the first payment had actually been made. The note was merely the evidence of the existence of the debt, merely a mode of payment; and as it was not paid at its maturity, it would be ridiculous to say that Bice, whose duty it was to pay it, but who shirked the bank at its maturity, should now be. acquitted of the debt. The holding back the deed shows positively that Stephenson looked to Bice for the pay*586ment, and not merely to Seckman. Stephenson has never parted with the title to the land, has never released Rice from his obligation to pay, but Rice has entirely failed to comply with his part of the contract, and under the principles laid down in Yancey v. Mauck, et al., 15 Gratt. 300; Poole & Co. v. Rice, 9 W. Va. 73; Dunlap’s ex’or v. Shanklin’s ex’or, 10 W. Va. 662; Moses v. Trice, 21 Gratt. 556; Stephenson has a clear right to resort to the land tor satisfaction of the debt.
As to the point.alleged that the answer set up claim for affi.rma.tive relief; the answer shows clearly only matter of defence, and is not sustained by the evidence. The decree should be affirmed with costs and damages.
Judges Greek and Haymond concurred.Decree Affirmed.