The times. [volume] (Richmond, Va.) 1890-1903, 1897-09-19
SUPREME COURT CASES.
sKTERAL WITNESSING OPINIONS
HANDFD DOM.
Delinquent Taxes Confributory Seeli.
genee- Equity Jurisdiction-He>
eission-O Other Cases.

tor Rev ise4. Dplnon uy Jhube ht''"
CprosidcnO.
Charles a. Scott. Of Aibomarlc county.
died Iu 1865 possessed OF considerable real
and personal estate. tbs widow. p y.
Scott qualified u.s. his administrative. and
in 1896 she IN her own right as admins
tFatrix Of her deceased husband and as
guardian Of their infant children. filed
a bin ln the Circuit Court Of Aibemarie
county for the administration Of his es-
tate. making an necessary parties de-
PENDANT orders were entered convening
the creditors. and such proceedings were
had that after arduous litigation. which
ultimately founo SIS way into The supreme
Court OF appeals and was decided az the
January term. 1890. the rights OF tho
widow distributes heirs and creditors
were established IN 20 this cose came
che Commonwealth hy Morton Marye,
Auditor OF Public Accounts and asked
leave 20 flc "a petition stating The death
% Scott. tho real estate OF which scott
died seized and tho assignment or dover
a. his widow: that from 1883 10 1891 taxes
mad beer assessed upon this land which
were IN arrears and unpaid. and that the
land had been sold for taxes delinquent
and I'm arrears and purchased by the
state and an the formalitics prescribed
hv statute having been strictly compiled
with. that the tltlc 90 these tracts Of land.
without Tho execution Of q deed, vested
IN The Auditor for the benefit Of the
Commonwealth I'm accordance with sec
t,on SCI o. the Code The Commonwealth
asked 10 be made party defendant but
this tho Court refused but permitted her
10 NE her petition as party plaintiff.
Tho creditors answered The petition.
saving that no part Of tho taxes claimed
bv the State accrued in the life time or
Charles A. Scott. that he was indebted
20 respondents at the time or his death
I'm large sums Of money established ny
Judgments and DEGREES set forth in the
record Of these chancery suits That me
widow and heirs Of Scott had resisted the
right OF the creditors 10 havc his real
estate subjected 10 the payment OF ms
debts. and that pending this litigation
thus occasioned the widow and heirs had
retained possession Of the land. had failed
20 nav the taxes thereon and having sur
Serod them 10 become delinquent. should
now be compelled 10 pay them; that the
purchose money for the said lands would
FAN far short Of satisfying the debts ana
that ~ would be inequtable and unjust
20 divert any part thereof 20 the pay
rncnt Of taxes. They aver that the law
gave them a lien on the land long before
tho taxes acrcucd. and that the Common
wealth I'm buying acquired title which
Is subordinate to the right Of the credi-
tors. This view Of the law was sustained
ny the Circuit Court and thereupon the
Commonwealth appealed 10 this court.
Held: The code gives 20 the Common
wealth a lien for five years Tor land upon
which taxes are assessed. During the
life OF that lien the land was sold for
its payment and the Commonwealth be
came the purchaser by force or the
statute the title vested in the Common
Of sale that
there Is no question I'm the case or the
statute Of limitations. The Common
wealth holding a lien enforced 1T before
the bar Of the statute attached and
stands now as a purchaser for value OF
the land upon which II rests. She had
lien and the only complete lien that rest
ed upon this property. The judgment
spoken Of I'm the decree appealed from
xgore AN obtained after the death OF
Charles a Scott and while they served
10 ascertain the debt have not the effect
of INDICTMENTS obtained during the life
time of tho defendant II is true, that
the lands Of which he died seized were
assets for the payment or an MS ucDtS
whether reduced 10 Judgment or not put
they were not liens in any proper sense
Of that term. The Commonwealth nav
ing purchased the land came into court
and offered 10 relinQuish her position as
nflTGlINfI upon inc lNN lil'iAA 'i '''
due her for taxes She could nave rested
mon her rights as purchaser, but vol
UNFAIRLY submitted herself 20 the juIisdlc-
lion of the courts and i'm thus relieving
ou concerned of any embarrassment III
the assertion of their claims TO this real
cstate upon the condition of having the
taxes Justly due paid 20 her has acted
with entire propriety ana the conduct Oh
her officials. so far from being me SUD
iect OF criticism. IS worthy OF commence
lion. See simmons vs.. Lyle. g. GratV
49, Thomas vs.. Jones uec'u'" CT
Wytheviue lN. .....,-o,,,
CONTRTBUTORY NEGLIGENCE
Klmban q Fink Rec'rs VS. Friend 8
Admx. Affirmed. Opinion by Judge
buchanan. dissenting: Judge Caldwell
and Judge Keith =.
Friend was killed while crossing the
track OF the y. & w railroad and there
were the usual dofenses 10 the action TOT
damages
Held. :: Unless disclosed by rlaintiff's
evidence or 10 be fairly inferred from
all the circumstances Of the case, the
burden OF showing that he is not exer-
cislng ordinary care and caution In APP
preaching the crossing is upon the defen-
dant B. q o. railroad VS.. Whiting
hams Admir-. 30 Graft, sos; Improvement
Co. VS.. Andrew. SO Va, 70; n & w. rail-
road Com, VS. Gilman, 81 Va. 80.
whether he used due care is a matter
OF inference from facts to be found by
G. fury Where a person is killed az a
crossing and the negligence Of the com
pany Is established. I'm the absence Of
evidence 10 the contrary. the presump-
ton. though perhaps slight, is that, the
person did his duty in approaching the
crossing. otherwise he would have 10
prove not only company's negligence,
but also HIS own freedom from contribu-
tory negligence. This while the rule in
some Jurisdictions. ia not the rule i'm Viz
g!nia This case is differentiated from
the Lacey case-9i Na.-by the facts,
2: The erection Of gates. gOngs, &c.
at railroad crossings TO warn travellers
does not excuse them from the exercise
Of ordinary diligence and care. but If the
gate be- open. or the gong fail TO sound,
De is not held TO such caution as he other
wise would be.
The question Of negligence In such case
is peculiarly one for the jury. Caring
ton vs. Ficklcn's Excr., 30 Graft 67O r..
& ID. Railroad Company vs.. Medley. Is
Va. $50.
3. The term ordinary care" rcas
enable prudence &c, are relative and
cannot he arbitrarily defined When Il
given state Of facts is such that r6asona-
bio men may fairly differ upon the Ques-
ton OF diligence, the determination of
the matter Is for the Jury Grand Trunk