The opinion of the Court was delivered by

This is an action to recover the price of land sold by Martzel Kester to the defendant, Philip Kester. Any sum which may be recovered is assets for the payment of the debts of Martzel Kester, and consequently the suit is properly brought by his personal representative. The defendant excepts to that part of the charge in which the court come to the conclusion that under the circumstances proved, “ the jury should consider the land as belonging to the old man.” It was proved that the father was in *371the possession of the land, that he made improvements upon it, and that afterwards, with a full knowledge of all the circumstances, entered into the contract on which the suit is brought. We agree with the court, that the jury were bound to believe that it was the property of the father, in the absence of countervailing proof, particularly as he had taken possession under the agreement, and was still in the enjoyment of the property, and had never made any offer to reinstate the parties in their former position. The defendant, on whom the burthen of proof was thrown, had altogether failed to show any adverse outstanding title. The survey made by James Scull in 1758, without the production of the warrant, although one is recited in the survey, is no evidence of title. A survey, as the court justly remark, without the warrant, or some other evidence of it besides the recital in the survey, and without the survey having been returned to the office, is no evidence of an adverse title.

Next, as to the tender of the deed. We are of opinion that by the warrant and patent granted to Philip Kester, in pursuance of the article, the defendant obtained a complete legal title. A deed from the administrator, or heirs, would be an act of supererogation, not in the contemplation of the parties, as it is expressly agreed that the defendant may complete the title by patent, but at the expense of the vendor. The defendant has a right to an allowance of the sum paid for that purpose, without regard to any change subsequently made in the price of obtaining the patent. The change enures to the benefit of the vendor.

The only exception which remains is that part of the charge in relation to the interest. It is settled, as is said, in Fasholt v. Reed, (16 Serg. & Rawle 266), that a purchaser by articles, entering and continuing in possession, must pay interest, though there may be cases where the jury would be justified in refusing it. The doubt is, whether there were not such facts in evidence as made it the duty of the court to leave the question of interest, as an open question, to be determined by the jury. Where the vendee has been harassed, as is said in the case cited, or disturbed in the possession, where there has been wilful and vexatious delay, or gross or criminal laches in the vendor, it may be left to a jury whether he shall recover interest. These instances are mentioned by way of example; and to the catalogue may be added, that where there are any well-founded doubts of the title, or where, in consequence of neglect, or from other cause, for a long time, no person is appointed to whom payment can be made, it should be referred to a jury to say whether the vendee should be required to pay interest. The interest is given by way of damages, and all the facts should be considered by them, under the direction of the court. The court gave a peremptory charge that if the plaintiff was entitled to recover the principal he was entitled to the interest also. This consequence does not follow; for this reason alone, we *372are reluctantly compelled to reverse this case and order it for a new trial. The staleness of demand, perhaps some doubts as to the title, and, above all, the failure to have an administrator appointed, the jury may believe to be a valid reason for exempting the vendee from payment of interest, at least, in part.

Judgment reversed, and a venire de novo awarded.