dissenting, said:
I dissent from tbe opinion of tlie majority. The effect of the majority opinion is to destroy the vendor’s lien of the Campbells. James Campbell sold the property in question to Booth, Anderson and Christian, and retained the title. Frazier’s father, John W. Frazier, bought this property, of the said Booth,* Anderson and Christian, and the title was still reserved in the Campbells. The purchase money has never been fully paid to the said Campbells, and one of their vendees cannot claim any title to this property superior to theirs until he has paid the purchase money. When John W. Frazier bought of the vendees of the Campbells, he sold one-fourth of the same to Wm. Frazier, his brother, and one-fourth to Jno. T. Ban-dolph, who is his kinsman, retaining one-half himself. TTis one-lialf descended to his son, James A. Frazier, who was an infant of tender years at the time of his father’s death. William Frazier assumed the position of guardian for James, and administrator of John W., deceased, and assumed control of the Bockbridge Alum Springs as surviving and managing partner, and held the two last named positions for many years— having soon been removed as guardian.
The opinion rendered at the frst hearing of this case, reported in 77 Va. Bep. 775, sets forth how James F. suffered at the hands of this managing partner, and administrator of his father, and upon a correction of errors a sum due to William Frazier was subjected to compensate James A., and a sale of the property ordered to pay it; and the lien which William Frazier or his assignees had, retained for the benefit of James A. Frazier. But there was no controversy between James A. Frazier and the Campbells; their lien as the original vendors was respected, so far as it remained unpaid, and held to be the *278first lien on the property, and the liens of Randolph and James A. Frazier were recognized as standing upon an equal footing. And this was inevitable, because, in all the assignment of errors here, and in all the long litigation between the two Fraziers, there had never been any hint of any denial of the right of the Campbells to have payment of their money, for which their property had been sold, before the purchaser could demand the title to it; and there was no hint of any dispute with Randolph; he had never been administrator of John ~W. Frazier, nor managing partner; he was simply one-fourth owner, as William Frazier was, and James A. Frazier, claiming under his father, was one-lialf owner.
But we have now arrived at a point when we are told that the Campbells have lost their lien, and Randolph his. IIow? If John W. Frazier were alive, under whom alone James A. has any rights, Campbell would hold ■ the prior lien, against which John W. Frazier could offset nothing, because he had no rights except and under it, as Campbell’s vendee, and when the Campbell’s lien was paid, Frazier would have what Campbell formerly had, by reason of his purchase of the same.
But we are told the Campbell debt is not extinguished, hut the lien is gone, and James A. Frazier, his vendee, has come to hold a lien superior to his vendor’s lien; that is, something superior to the source of 1ns title. He, or his father, bought what the Campbells had, at an agreed price; the price has never been paid, but he has what he bought, without paying the purchase price, and the Campbells have not the price at which they sold their property, but something else, which is inferior to what Frazier has fallen heir to, by a sort of law legerdemain. How did Frazier manage to get his position, and that of the Campbells, his vendors, thus shifted? Once their positions were undisputed, and Campbell was the owner of the property, and Frazier had no concern with it.
But the Campbells sold their property, and retained the title until the purchase money had been paid in full; the purchase *279money bas never been paid in full; and the Campbells have never released their lien to Frazier. The opinion of the majority points out how this transformation has heen effected.
Let us look at it.! The springs were sold for division and distribution. James A. Frazier became the purchaser and paid his one-half interest credited to him. lie was unable to pay for the property, and it was resold and bought by C. E. Mason, who sold to the Eockbridge Alum Springs Company. The circuit court confirmed the sale, and the Campbells took for their first lien, from this company, first mortgage bonds on the property. 'The other parties in interest took shares of stock for their respective interests, and the sale being confirmed, and the proceeds thus distributed, the cause was removed from the docket. James A. Frazier appealed, and this court, proceeding to correct errors assigned and complained of against him in the settlements between his, and his uncle "William’s interest, decided in effect that the. share which his father’s administrator had in the sales to the Eockbridge Alum Springs Company belonged to James A. Frazier, because of errors in the settlements between them; and limited the amount of his recovery to the precise and exact amount due "William Frazier from the Eock-bridge Alum Springs Company, and decreed that it should be a lien on the property second only to the Campbell lien, and of equal dignity with the Eandolph lien; that is, that it occupied precisely the same relative position as to Campbell and Ean-dolph which William Frazier’s interest did, and which John W. Frazier’s interest did. The litigation was between James and William Frazier, and whatever restitution was to be made to James Frazier was to he taken out of the interest of the person at whose hands he had suffered injury. I thought then and I think now this was just. But it has heen strenuously argued here by the counsel for James Frazier that such is the depreciation of the property in question, that at a-sale now it will sell for hut little more than enough to pay the vendor’s lien of the *280Campbells. This ought not to be considered in the determination of this ease.
It must be remembered that, the Rockbridge Alum Springs Company did not contract to pay William Frazier money for his interest, nor did it agree to pay money to the Campbells. The agreement was that the creditors of James A. Frazier, other than the. Campbells, should associate themselves together and buy the property, the Campbells to receive first mortgage bonds of the company, delivering their deed to the said company; and it is thus claimed that they relinquished their lien to the company. But they have not released it to William nor to James Frazier. It is the first lien now on the property in the hands of the company, and where the shares of stock of William Frazier are can-celled by order of this court, and money in equal amount decreed tobe paid to James Frazier by the company, which is something the company never agreed to pay William Frazier or any body else, and held to be a lien on the property; how will the court manage to hold up the Campbell lien long enough to put the Frazier lien under it?
Is there any equitable principle upon which this can be done, other than some equity which will affect the Campbells as between themselves and the Fraziers ? I think not! IIow can Frazier claim to hold the property of the Campbells without paying for it, by asserting that somebody else bought it and did not pay for it?
All this is an unfounded contention. The Campbells delivered their deed to this purchaser at this judicial sale upon condition, that their first lien was preserved, and the sale confirmed to the purchaser as made. This court sitting upon the cause precisely as the circuit court did, and proceeding to enter such decree as the circuit court ought to have entered, cannot say that it will defeat the condition upon which the Campbell deed was delivered; and while the court puts it out of the power of the purchaser to comply on its part with the condition, by setting up another first lien never contemplated between the *281parties, and yet bold on to the deed of the company, not for the benefit of the purchaser to whom it was thus delivered, because if fqr its benefit, it is still the first lien on the property, but for the benefit of a party to whom the Campbells never owed a dollar in this whole controversy, but whose creditors they are, now as ever; for it is not pretended that either Frazier has paid them the purchase money due them.
It is erroneous to speak of the lien of the Campbells being-lost, gone and extinguished. It has never been so extinguished by any act of theirs, and certainly never in favor of Frazier, for whose benefit it is now used.
"What has been said applies by similar reasoning to the Randolph interest. If Frazier has acquired a lien superior to Randolph’s, how did he get it? Not by any act of these parties. They once held shares of equal dignity, and were co-partners. The sale at which this purchaser bought was a sale to pay the amounts due by James Frazier, as purchaser, to Randolph, and thus his obligation to pay William Frazier has been extinguished by a counter claim. But how did he extinguish his obligation to pay Randolph his share? ITe has never done so at all. It has never been pretended in this suit that Randolph owed him anything; and how does he get released, in the first place, from the obligation to pay Randolph his share of the property by showing offsets against William Frazier? In the second place, how does he get a prior lien on this property, as to Randolph, by any recasting of accounts between him and somebody else?
When the Rockbridge Alum Springs Company purchased this property, it was in effect a purchase by the creditors, who agreed to hold shares of joint-stock in the like proportions and relations as their debts stood. The Campbells agreed to deliver their deed to the property, upon the condition that their first-lien was preserved to them in the form of first moi-tgage bonds of the company. If this arrangement was erroneously sanctioned the circuit and this court feels called to *282set aside the arrangement, as made, should not the parties be restored to the status quo ? Can it be set aside upon any other terms ?
Did the circuit court have any power or authority at that time to compel the parties to make any other contract than such as they agreed to make ? And if not, can this court now do it, and say it is proceeding to enter such decree as the circuit court ought to have rendered ? If at that time the circuit court had substituted James Frazier to the rights and interests of William Frazier, as this court has since done, and James Frazier had declined, as he now declines, to receive shares of stock for his share of the fund, the circuit court could not have compelled him to do so, and this court cannot now compel him to do so against his consent.
But if he had refused to unite with the others, the transaction would have failed altogether, and the circuit court could not, as this court cannot now, compel the others to go into the arrangement against their consent, then the sale could not have been made by the circuit court, as it was made, and this court cannot now say that the circuit court should have so decreed, and cannot so decree, saying this court is now proceeding to enter such decree as the circuit court should have entered, because the circuit court could not have entered any such decree by any possible view of the ease.
What, then, if the circuit court had done what this court has since declared it should have done, and put James Frazier into the place of William Frazier, at that time would have been a proper decree for the circuit court to have entered? Answer that question, and you have the answer to the question: what decree should this court now enter here ?
James Frazier, thus enlarged by the recovery from William Frazier, would have stood before the court as the purchaser of the Springs, owing $132,000, less $57,629.41, that is, $74,370.59, and the owner of the Springs when that was paid. If he could have sold the Springs for $132,000, he would have been enti-*283tied to keep the $57,629.41, and been obliged to pay to Campbell, Randolph and others, $74,370.59. If neither this, nor any other purchaser had appeared, the court ought to have made the sale, to satisfy the debt of $74,370.59 still unpaid of the purchase money due by James Frazier, out of which the Camp-bells woidd have been first paid. If, however, this agreement had then been entered into by the parties, it should have been enforced by the court, but enforced as made. The circuit court had, and this court has, the power to enforce no contract except such as the parties thereto entered into and agreed to.
That court- had, and this court has, no power to make a contract for these parties. This cannot be denied. It may then he asked, did these parties, first or last, at any time whatever, make the contract set up for them in the decision of the majority? If so, when and how did the Rockbridge Alum Springs Company ever agree to pay James Frazier or William Frazier, or any other person, $57,629.41 in money? Never, anywhere, at any time. ANhen did the Campbells ever agree with any person to release their first lien on this property; if so, to whom and when ?' They contracted for the lien of first mortgage bonds; the other parties all agreed to preserve their lien thus. But this court now says that the circuit court ought to have entered a decree to put their vendee in their lien and stead as' to their own property, without the payment on his part of the purchase money.
In writing and delivering the opinion of this court at the first hearing, concurred in by all the judges, I used plain words to show my meaning on this point, declaring that the lien of James A. Frazier “was second only to the Campbell lien, and of equal dignity with the lien of Jno. T. Randolph.” That is, what was found due to him was due to him, exactly as what was due to AVilliam Frazier was due to him, and that it was due to him just as his original interest was, that is subordinate to his vendor’s claim against him.
This court has the power to set aside that decree and opinion *284as erroneous, a re-hearing having been asked within the prescribed time. Whatever errors are therein should be corrected, but there is no opportunity to base one upon the other,,for both are recorded and speak for themselves. The wrongs of James A. Frazier are properly redressed only against the party by whom he has suffered injury or loss; but as against the Campbell and the Randolph claims, &c\, he has asserted no wrong and asked no redress.
The purchase of C. R. Mason was upon an arrangement with the creditors and persons in interest other than James A. Frazier. I dissent from the opinion in so far as it holds Mason a mere nominal actor upon the scene. Whatever his first connection with the case, he bought the property at a price certain but little over half of what James A. Frazier had bought it at some years before. That sale was to compel James A. Frazier to make good his purchase, or suffer a sale of the premises. Why should not the same rule of procedure and of responsibility attach to Mason as to James A. Frazier, with whom he had made no arrangement for his share ? Mason bought the property, and the court confirmed it to him.
Now, if Mason paid, by an arrangement, the debts of all the parties in interest by getting up a company and taking some stock, and paying off in stock, except the Campbells, who did not take stock, and Janies A. Frazier, who did not take any thing, but got a decree of this court for what was supposed to belong to William Frazier, why should not Mason be held responsible, so far as he agreed to be held, for $134,000, part to the Campbells in first mortgage bonds, stock to those who agreed to take stock, and money, or what he could use, to satisfy James A. Frazier’s interest; and if a re-sale is necessary, why is not Mason bound to make good his $134,000, or pay the difference. He did not make any arrangement with James A. Frazier. He agreed, so far as Janies A. Frazier is concerned, to pay $134,000 for the property; and upon a re-sale he should have credit for the interests he had paid, or which the Rock-*285bridge Alum Spinngs Company, bis substitute, lias paid, and be charged until the residue for which the property is responsible.
As to Randolph, and others situated like he is, if the purchase of the company stands, he has taken stock, but if this court overturns and destroys the company, so that theré is no company, then his rights survive against the Springs property; and if Mason is protected as to his share, it is solely because of some contracts which they have mutually made.
But as the Campbells never agreed to take any thing but a first lien, they still have it. So James A. Frazier, who never agreed to take anything but money for his share, and stood off upon his legal rights, as he had a right to do, so his interest, as ascertained in this court, survives to him, and his interest is due to him without any reference to what was the convention between Mason and William Frazier. Mason was his security on the first purchase, and when their interests became divergent, Mason had a right to look out for himself, and buy at $134,000 the same property James A. Frazier had bought at $232,000 a few years before.
James A. Frazier could demand only his legal rights, and these being ascertained without a sale, his interest would be credited to him as purchaser, but after a sale, become part of the purchase money, and are due by the purchaser to the person to whom it is due; and if C. R. Mason is held to be bound for the amount due James A. Frazier, it must be inside of and in accordance with the terms of his purchase.
I think the settlements between James A. and Wm. Frazier in this court on the former appeal were final as between them, and that the circuit court erred in allowing the account to be re-opened for items claimed to be omitted.
The decision as to costs in this case is a solecism. If the parties were not interested in the appeal, let it he explained how they lost their interest by the appeal. They were not properly held liable for costs, because they were not contesting the claim of the appellant, and so they must not pay any part of *286the costs; but yet the effect of the decree in the suit in which they were parties, only nominally, is to deprive them of their entire interest in the property. This I say is a solecism.
I dissent from the opinion entirely, on every point. I have thus briefly written out my views in the case that my attitude may be understood when the two appeals are considered together. I feel that my views are correct and just to all the parties in interest, so that each party may stand by the consequences of his own contract and no other.
Decree ameNded AND afeirMed.