The times. [volume] (Richmond, Va.) 1890-1903, 1895-11-22
THE COURT OF APPEALS.
4 NUMBER or sHPOEsEST CASES
PfSSED iron.
Buena Vista Company vs. McCan~lish and
Cloves clifton Forge Against the
Allegheny Bank -ir .,ton vs. Sell.

Cloves. Judge haiilSohs
1. The company contracted 10 build and
deliver 10 the plaintiffs hotel according
10 certain plans ana specifications, Du'
fsiled in many and important particulars
to com IS with lts contract as TO .r IN
character OF the hotel to be built. IRE
plaintiffs frequently called the attention
OF defendants 10 tneir violations OIL inc
contract. both before and aiier tne ho' 81
was completed but Defendants refused 10
correct them. This conduct amounted 10
a recession of the contract by the uefend-
ant company. and justified the p'aintliis
I'm treating ID as - rcscindct ana IN DING
ing an action OF assumpsit 10 recover the
money paid by them. the CONSIDERATION
having wholly failed without fault OF the
plaintiff. 49,
duccd as evidence IN such case. not TO
sustain the form Of the action. but as cvi-
dcnce to prove the plaintiffs case. IL was
agr cement between the parties mat the
Jury might determine whether such agree
mcnt had been so broken by the defend
ants, as alleged, as 10 entitlc the pialn-
tins 10 treat IL as rescindtd. and so 10
recover the money paid under ~. the re,
ccipt Of which money was acHnowlcuf'u
thai II was not signed by the plasniins,
II having been signed by the defendants
ana duly delivered.
>. Five thousand dollars having bech &c
cciptod for IN the contract when IN rect
only S475D had been paid In money 'the
balance SO. representing CoininiSSiVIH
agreed 10 De allowed lN' W
sale 10 thcmselves). the court below ocEh,
20 have required an abatement OF th"t
sum by the plaintiffs ana acce p,ahce vi
$40 or else set aside the Ncidlct Vh
motion The judgment Is reversed WIN
instruction that "a verdict so mofihed
must be accepted or "A new tfial sIail,-u.
The Town of Clifton Forge against Inc
Allegheny Bank &c. Judge Harr-soh.
The Allegheny Bank bought four bonds
Of the town OF Clifton Force from Inc
treasurer. who was authorized to sen,
paying par value In cash. knowing ire
proceeds would be used In paying a debt
The town owed the electric nght COM
pany. Held. There being no fraud in the
transaction. the bank was bona nae
purchaser for full value, was in no sense
bound to see TO the application OF the
purchase money or TO determine whether
The use cf the proceeds was in d'schaffe
OF a contract ultra wires. To hold DINER
wise would he practically TO destroy The
facility Of transfer of such bonds, whose
negotiability Is one of their chief advan-
tagcs.
pany. opinion by same judge and Irac-
iicallv IN like reasoning.
Davis & Snapp against Poland. Judge
Rely.
dissolution. cannot bind his co-partner
against his consent so as to impose on
him fresh liability. He cannot, as
against him, create a new obligation, nor
revive an old one barred by statute. So
Va. 47s. Daniel on NesO. ms, section
go. Minors ms, vol. ,3i.
His admission or declaration cannot be
received as the only evidence of debt
against the partnership. 1t must first be
proved by other testimony. or admitted
by the plcadings. MunfOrd. l9l: Nun
ford. .lj Call, 81.
Admissions or acknowledgements made
in good faith by one partner, after dis
solution. are evidence against his CO
partners. provided they relate to trans
actions OF the partnership, and do not
tr,.f. lts.l Inc
.3i.
p This court can only look to the record
certified 10 If as containing the evidence
IA the case. Inc suit here being uDOn
TWO notes. and the record failing TO dis
close that the notes were put i'm evidence,
there was nothing TO sustain the verdict
for the plaintiff ana the court below
ought to have granted the motion to set
II aside.
Braxton, trustee. VS.. Bell and Others.
Judge Riley.
l:ell sold G. & S. Arril Z. 1855. the
Srihlng springs fcr sl5."',. to Toe paid II.
instain'nts. Vendces TO give bonds Sc
cured by deed of trust on the lend and
also ON any personal property they might
put thereon. This contract Of sale was
admitted 10 record July 3. 1883 Deed con-
N.yihg land by vendor as of same date,
but not Acknowledged till october 30. A
deed Of trust. on the land Cnly Of like
aaic. was not acknowledged till October
5th. Tie Vendees put a large amount
81 personal property On the place. but a
decd of trust on the personally was never
made. On october IL. 1893. &. K $ con
N,yfd 10 BraXton t$eir personal property
by deed. IN trust to secure their creditors
other than Bell which deed was admitted
TO record. as of Its date.
The controversy is between Bell and
BraNton. as To the right to the person
al property ~
actual notice Of the contract of Ben with
&. x :. bu. that he had constructive
notice 10y reason of the Tecordaton Of
that contract
Held L. COllating sections, 2ib}-2i6J OF
the Code. II is plain that but one species
OF contract mot being a deed) relating
L. personal property is authorized 10 be
recorded. and that is one made in con-
SideratiOn of marriage" RecOriatiOn of
such contract therefore. except II be
in consideration of marriage. Il "A nullity,
and constitutes no notice to anybody.
Where writing which the law requires
10 be recorded. in order to affect creditors
ana subsequent purchasers for value
without actual notice, Is Improperly re-
corded. either because not duly autntn-
ticated, or for other reason. even in that
case its rcCOrdaiion is not notice. Minor
lns., Vol .. y. stC-6'. 10 Va, 49l. a Va.
%
,. In this case, Hcn having an equi-
table right only, and BraXtOn. as trus-
tee. being bona hde purchaser for value
and without notice, braNton hath the
better title.
Boarn OF Supervisors of Bedford County
vs.. bedford high school. Judge Keith.
covenant that land and buildings
shah bee used Tor the purposes OF SAID
school and for no other purpose does
not convert the estate into a base or
qualified Zee. but does constitute d cove
nant running with the land.
II is also a covenant which restricts the
use of the land 10 particular purpose,
and which Is binding on all those taklns
title To the land with notice thereof. II
imposes a seryitude upon the land when
"a court OF equity VIII. m proper case
enforce. and. OF course, diminishes us
value.
Allemong vs.. Gray's administrator
judge Keith.
Anemong and others conveyed land with
the following covenants. John W. Ale
rnong and wife and JerVis +. AaNvrs
covsnf.1t that they will warrant specially
the land hereby conveyed. that they nave
the right To convey the said land 10 the
shall have quiet possession thereof iiee
ffOm all encGmbrances. that they snaf.
execute such further assurances OF sHid
land as may be requisite. ana mat lhrs
have done no act to cucumber the adld
land"
Held: "rhe intention Of the covenantors.
In the language used by them. was that
the Limitation upon the covenant or war
rantv should De applied 50 as 10 restrict
the operation Of those covenants wh-ch
succeeded it."
Shenandoah Land and Coal Company
against H,se. Judge Cardweil:
Shelter assigned to Nicholas all ms
right title. and interest for ninety-nine
years. with privilege OF renewal for nine
ty-ninc years. I'm all minerals on M
lands. I'm consideration of one-ioufth OF
the profits 10 De obtained from mining.
He afterwards conveyed the land itself
FOR fun consideration Hlse. NICHOLAS,