Opinion. ference, if any, between the contract price and the market value of the land at the time of the alleged breach by the vendors of the contract of sale involved in this suit. Upon such consideration the first question which arises is this: 1. What title did the vendors by the contract involved in this suit undertake to convey to the vendees at the time fixed for the completion of the contract? [1, 2] In the opinion of the court below involved in a former appeal of the instant case (Beury v. Davis, 111 Va. 581, 69 S. E. 1050), the lower court construed the contract to provide that the vendors would, at the time fixed for the completion of the contract, convey by a good and sufficient deed, "a good title, not a doubtful or bad one," which the court stated meant a marketable title, saying, "evidently it was contemplated that marketable titles were to be made." The correctness of this holding is not questioned by the assignments of error; indeed the petition of appellants for the present appeal relies upon such holding as the law of the case. That being so, in the view we take of the law applicable to the contract, when so construed, and of the facts involved in the instant case, we are relieved of the need of making any pronouncement of our own upon the question whether the terms of the contract provide for a perfect record title or merely for a marketable title, when read in the light of the authorities cited for the appellants. Such authorities are Sachs v. Owings, 121 Va. 162, 92 S. E. 997; Mullen v. Cook, 69 W. Va. 458, 71 S. E. 566; Maupin on Marketable Titles to Real Estate, pp. 210-221. (See also the last named work [3rd ed.] pp. 789-792.) We shall consider the law of this case to be that the vendors did not by the contract involved in this suit undertake to convey, at the time fixed for the Opinion. completion of the contract, a perfect record title, but only a marketable title, which is a title which is in fact a good title, or one which can be made so by application of the purchase money, although it may not so appear of record. Sachs v. Owings, supra. The next question for our consideration is this: 2. What is the doctrine in Virginia on the subject of the right of the vendee to recover damages, beyond the return of the purchase money actually paid, with interest, for the breach of such a contract by the vendor? [3] The answer is that for a vendee to be entitled, under the doctrine in Virginia on that subject, to recover any damages, beyond the return of the purchase money actually paid, with interest, for the breach of a contract by the vendor to convey, the title contracted to be conveyed at the time fixed for the completion of the contract, the vendee must prove that the vendor either acted in bad faith in originally undertaking to convey such title at such time, or that, since the undertaking and on or before the time fixed for the completion of the contract, he has voluntarily disabled himself from making the conveyance, or that he was able at such time to make the conveyance contracted for and willfully neglected or refused to do so. The doctrine on the subject adopted in Virginia is set forth in the authorities as follows: In Mullen v. Cook, supra (69 W. Va. 458, 71 S. E. 567), this is said: "What is the correct measure of damages for the breach of contract to convey land? The rule is not uniform. The Supreme Court of the United States, and the courts of most of the States, have adopted as the rule for measuring the damages in such case the difference between the market value of the land at the time Opinion. of the breach, with interest, less the purchase price unpaid, without regard to the reason for the failure to convey. 29 Am. & Eng. Ency. L. 724, 725; and 2 Southerland on Damages, 579. But it is not the rule in England, nor the rule adopted in Virginia before the formation of this State. In Virginia a purchaser is not entitled to recover for the loss of his bargain. The value of the land at the day of sale, and not its value at the time of the breach, is to be considered; and if a price has been agreed to, that is to be taken as the best evidence of value. Consequently, in Virginia, if the purchaser has paid nothing, the general rule is that his damages are only nominal. Of course, the purchaser is always entitled to recover the money paid, together with the interest." 2 Min. 865; Stout v. Jackson, 2 Rand. (23 Va.) 132; Threlkeld's Adm'r v. Fitzhugh's Ex'x, 2 Leigh (29 Va.) 451; Thompson's Ex'r v. Guthrie's Adm'r, 9 Leigh (36 Va.) 101; Stuart v. Pennis, 100 Va. 612, 42 S. E. 667; Wilson v. Spencer, 11 Leigh (38 Va.) 261. "The above is the general rule in Virginia, and, therefore, the law of this State, because those early Virginia decisions are binding authority on us. This general rule, however, is subject to exceptions. It does not apply, if after the sale the vendor has voluntarily put it out of his power to comply with his contract, as for instance by making sale to another; or if he has good title and wilfully refused to convey. In such case he will be held liable for the enhanced value of the land; in other words, he will then be held liable to the vendee for his loss of bargain. Wilson v. Spencer, 11 Leigh (38 Va.) 261. See also opinion of Judge Snyder in Butcher v. Peterson, 26 W. Va., at p. 454. "Whether the plaintiff can prove a case entitling him to substantial damages depends, not alone upon the mere breach of contract, but also upon proof that the Opinion. vendor has, since sale to the vendee, voluntarily disabled himself from making the conveyance, or that he is able to make good conveyance and willfully refuses to do so. * * * * "If the defendants have acted in good faith and are unable from good cause to comply with their contract, then the plaintiff can recover only nominal damages. As said in Maupin on Marketable Title to Real Estate, pp. 210, 211: "The question whether the purchaser is entitled to nominal or substantial damages for breach of the contract usually arises under the one or the other of the following circumstances: "(1). When the vendor acts in good faith, believing that his title is free from objection. "(2). Where the vendor acts in bad faith knowing that he has no title and no prospect of acquiring it. "(3). Where, having no title, the vendor expects to acquire it in time to complete the contract. "(4). Where the title is defective or the estate incumbered, and the vendor has the power to cure the defect or remove the encumbrance, but neglects or refuses to do so." "It need hardly be said that the purchaser may always recover for the loss of his bargain whenever the vendor, having a good title, perversely and wrongly refused to convey, or puts it out of his power to contract by conveying to a stranger without notice of the purchaser's rights. Were the rule otherwise, the vendor might in every case in which the land had enhanced in value before the time fixed for making the conveyance sell to a third person, return the purchase price to the first purchaser and put in his own pockets the difference between the two values. But if the vendor abandons Opinion. the contract and the purchaser acquiesces in the vendor's attempt to rescind, instead of demanding a deed and standing upon the contract, he can recover only the purchase money and interest." The author cites numerous cases in support of the text and among them is the case of Wilson v. Spencer, 11 Leigh (38 Va.) 261. This is stated in the syllabus of the latter case: "Though in general, for the breach of an executory contract to convey land, the vendee is not entitled to more damages than the purchase money he has actually paid, and interest thereon (Thompson's Ex'r v. Guthrie's Adm'r, 9 Leigh [36 Va.] 101), yet the rule will not be applied where the fraudulent conduct of the vendor makes it unreasonable to limit the vendee to that measure of damages. If, for example, a vendor who has the title in him at the time of sale, shall, after his contract, disable himself to perform it by conveying the land to another, he will be liable for the value at the time of the breach; and interest may be allowed on such value from that time." The learned text writer, next above cited, continues as follows: * * "Sec. 91. Where the Vendor Acts in Good Faith.Flureau v. Thornhill, * As a general rule a vendor of property, whether real or personal, who, from whatever cause, fails to perform his contract, is bound to place the purchaser, so far as money will do it, in the position he would have been in if the contract had been performed. Ordinarily the motives and purposes of either party in entering into the contract, or the intent of either to abandon or to perform it, are irrelevant to the question of what damages shall be awarded in case of a breach. An exception to this rule has been held to exist wherever the vendor of real property is unable to |