Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-09-19
DECIDE MANY CASES.
SUPREME COURT HANDS DOWN
LARGE HATCH OF OPINIONS.
BOOM LAND SALE FALLS THROUGH.
Representations Made by an Inn
movement Company Declared 10
Have Been MisIendipg, and the
Buyer Is Released from Obligation


by the Supreme Court OF Appeals at
Stanton on Thursday:
Commonwealth vs.. Ashlin's Administra-
tor. Reversed. Opinion by Keith, 7.
Charles A. Scott, of Albemarle county,
died In 1865. possessed OF considerable real
and personal estate. His widow, II. b.
Scott. qualified as his Administrative.
and in 1856 she. in her own right. as ad-
m!nistratrix Of her deceased husband,
and as guardian Of their infant children,
filed a bill in the Circuit Court OF Abe
marie county for the administration OF
his estate, making all necessary parties
defendant. Orders were entered con-
vening the creditors. and such proceed
ings were had that after arduous lltiga-
ton, which ultimately found its way to
the Supreme Court of Appeals. and was
decided at the January term, 1890. the
rights of the widow. distributes, heirs,
and creditors were established.
Into this case came the Commonwealth
by Morton Marye, Auditor OF Public Ac-
counts, and asked leave to file petit
ton stating the death of Scott, the real
estate OF which scott died seized. and
the assignment of dover to his widow,
that from 1888 TO 1881 taxes had been
ass ssed upon this land, which were In
arrears and unpaid. and that the land
had been sold for taxes delinquent and
in arrears. and purchased by the state,
and all the formaiities prescribed by
statute having been strictly complied
with, that the title to these tracts o.
land without the execution of deed,
vested in the Auditor for the
benefit of the Commonwealth, in ac-
cordance with section 663 of the
Code. The Commonwealth asked to
be made a party defendant, but this
the court refused, but permitted her to
file her petition as party plaintiff.
The creditors answered the petition,
saying that no part of the taxes claimed
by the State accrued in the lifetime or
Charles A. Scott; that he was Indebted
to respondents at the time of his death
in large sums OF money established by
judgments and DEGREES set forth In the
record Of these chancery suits; that the
widow and heirs of Scott had resisted
the right of the creditors to have his real
estate subjected to the payment OF his
debts. and that pending this litigation
thus occasloned. the widow and heirs had
retained possession OF the land, had failed
TO pay the taxes thereon, and having sur
fered them to become delinquent. should
now be compelled to pay them; that the
-money for the said lands would
fan far short Of satisfying the debts. and
that il would be inequitable and unjust
TO divert any part thereof to the pay
ment of taxes. They aver that the law
gave them a lien on the land long be-
accrued and that the
Commonwealth, in buying, acquired
title which is subordinate TO the right
Of the creditors. This view OF the law
was sustained by the Circuit Court. and
thereupon the Commonwealth appealed
to this court.
THE COURTS OPINION.
Held: The Code gives to the Common
wealth a lien for five years for land
mon which taxes are assessed. Du-
ing the life Of that lien the land was
old for its payment and the Common
wealth became the purchaser. BY force
IF the statute the title vested in the
as a result OF the sale.
20 that there is no question in the case
If the statute of limitations. The Com
holding a lien, enforced 1t be-
ore the bar of the statute attached and
stands now as a purchaser for value OF
he land upon which 1t rests. She had
lien and the only complete lien that
ested upon this property. The judg-
nent spoken of in the decree appealed
rom were all obtained after the death
# Charles a. Scott, and while they
erved to ascertain the debt, have not
he effect of judgments obtained during
he lifetime of the defendant. 1t is true
hat the lands of which he died seized
e IL. all lt
Iebts, whether reduced TO judgment or
lot but they were not liens in any
roper sense OF that term. The Com
having purchased the land,
anne into court and offered to relin-
uish her position as purchaser upon
he payment Of the sum due her for
axes. She could have rested upon her
lights as purchaser, but voluntarily SUBJ
nitted herself to the jurisdiction Of the
ourts, and in thus relieving all con-
erned of any embarrassment in the as
ertion OF their claims to this real es-
ate upon the condition of having the !
axes justly due paid to her, has acted. |
With entire propriety. and the conduct |
Il her officials. so far from being the |
ubject of criticism, is worthy of COM |
nendation. Simmons VS.. Lyle, 80 Graft, |
So; Thomas VS.. Jones, decided at Wythe- |
lille in 1897.
CONTRADICTORY NEGLIGENCE.
limball & Fink, Receivers, VS.. Friends |
Administrators. Affirmed. Opinion by ;
buchanan, ]. Dissenting. Cardwel, j.. |
and Keith, p:
Friend was killed while crossing the |
rack of the Norfolk and Western rail-
DAD, and there were the usual defences
0 the action for damages
Held: !. Unless disclosed by plain
iff's evidence. or to be fairly inferred |
rom all the circumstances OF the case,
he burden of showing that he is not
xercising ordinary care and caution in
pproaching the crossing is upon the
efendant. Baltimore and Ohio railroad
5. Whittinghams Administrator 30
iratt., sos; Improvement Company VS..
.ndrew, Sc Virginia, 273 Norfolk and |
Western Railroad Company VS.. Gilman,
Virginia, 239.
Whether he used due care Is a mat
er of differences. from facts to be found
Y jury. Where a person is killed at
crossing. and the negligence OF the
ompany is established, in the absence
{ evidence to the contrary, the pre-
umption, though, perhaps, slight, is
nat the person did his duty in approach
lg the crossing. Otherwise, he would
ave to prove not only company's negli-
ence, but also his own freedom from
negligence. This, while the
lle in some jurisdictions. is not the
lle in Virginia. This case is differ
inflated from the Lacey case-94 Vir-
the facts.
2. The erection of gates, gongs, etc.
railroad crossings TO warn travellers
Oes not excuse them from the exercise
ordinary diligence and care, but if the
ate be open or the gong fail to sound.
0 is not held TO such caution, as he
Iherwise would be.
The question OF negligence in sucn
a CO ie racuifarlv opa FOR tho ,,... |