Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1896-01-17

which may be exercised by her. II never
thelesx contains no negative words. re-
straining her from exercising any otner
power. nor anything from which restraint
for her power OF alienation may pr pro-
perly inferred. She had. therefore, an
absolute power Of alteration over the
estate. and the consequential right 10
make II liable for her contracts. The
debts which are sought 70 he enforced.
were all contracted since May j. lss,
when the present Code went INTO erect
and she IL therefore presumed 10 nave
made them with reference TO her said
separate estate az source OF cfent- IN
accordance with the principles to eQuita-
bic separate estates, as hereinbefore set
forth, her creditors had the right to ask
that the rents and profits OF The real
estate be applied TO their payment. But
when We seek to apply the general rule
we are confronted with this difficulty, that
the annual rents and profits are INSULT
cient 70 discharge the Interest annually
aecruing Oh the debts. From this II fol-
lows that the debts will go on increasing.
and the creditors be entitled TO receive
the rents and profits OF the land forever.
Such a result would be unjust to the
creditors and also TO the devisees OF Mrs.
Haxall. while sale would be beneficial
to all parties. Where such state OF
facts exists as here. a court OF equity
will, upon the principle OF acceleraung
the remedy. decree a sale OF the land,
the rents and profits whereof would
otherwise. under the general rule. be sub
jected to the payment OF the debts.
THE COURTS CONCLUSION.
The opinion. after referring to several
authorities bearing out this position, con-
cludes az follows. "The principle which.
Al 49, ~ - "a ND IL
the cases decided by Lords Hardwicke
and Rldesdale ito which references are
made). applies with all its force TO the
case before the court. I am OF opinion.
therefore, that where there Is no equitable
separate personal estate applicable TO the
discharge OF her general engagements, or
II so, that IL IL insufficient for that pur-
pose, and the rents and profits OF the
real estate constituting her equitable
separate estate will never discharge the
debts, or not do so within reasonable
time, IL is proper TO decree sale of the
land for that purpose, and that to this
extent the general rule laid down In the
case Of Frank e. Adler against Lilienfeld
ct ais, supra, should be qualified.
What is reasonable time is matter
OF discretion OF every days occurrence in
courts OF equity. In respect 10 this mat
ter they might well adopt a. general
rule, by way OF analogy TO the law, the
period which the Legislature. In the sta
tute regulating the enforcement of judg-
ment liens in equity. has. In its wisdom.
fixed as reasonable time within which,
If the rents and profits will discharge the
Judgment. the land should not be sold.
For the foregoing reasons | am Of opin-
ion that there is no error in the decree Of
the Chancery Court In directing, under
the particular circumstances I'm this case.
a sale, instead of the renting Of the real
estate. and am. therefore, for affirming
the same"
Judge Buchanan entered a dissenting
opinion in this case, holding that the
question was new one before the court.
and that IL the rule of the law governing
the court in former decisions was found
ed upon incorrect principles and failed 10
accomplish fully the ends of justice, the
remedy was with the Legislature.
Land Case Decided.
Judge Cardwell prepared and presented
the opinion In the case OF Russell against
Almond. which was a writ OF error TO
judgment Of the Circuit Court of Glou-
cester county I'm an action of ejectment
brought to recover ninety-one acres OF
land, with improvements thereon. in the
possession of the defendant in error, the
verdict and judgment being for the de-
PENDANT. The Court Of Appeals affirmed
the decree OF the lower court. holding
that from a review OF the facts IL be
came wholly unnecessary to consider the
several assignments of error contained In
the petition. as the plaintiffs in error
could not in any event recover in this
action. as they did not have the legal
title to the property in question, and a
present right of possession under 1t at the
time Of the commencement OF the action.
His Wife Responsible.
The opinion i'm the case OF Duval and
wife against Chef 81 Co., from the Cir
cult Court OF Culpeper county, was read
by Judge Buchanan. This was a writ
OF error to a judgment rendered in an
action Of debt on a bond for the payment
OF money executed by a married woman
and her husband during coverture. The
declaration was demurred to on the
ground that II showed upon its face that
the bond sued on was executed by mar
rled woman during coverture. but failed
to aver the existence OF facts showing
that she had the right or power 10 make
such "A contract. This demurrer was over
amin