Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-11-19

render the memorandum made by him
evidence Of the execution Of the alleged
deed
2. Neither Washington nor any person
In privity with him being concerned In
this litigation. the memorandum cam
not be admissible as q declaration against
his interest: nor does II admit the pos
session OF the deed TO be In Washing
ton.
3. II Is no part Of the res gestae be-
cause not $50 connected with the very
transaction or fact under investigation
as to constitute a part OF IT," Haynes
Case, Is Graft. 9B.
III. A deed of trust made by James Will
son and wife TO +. and others contains
recital that the said land was con-
veyed by Thomas Wilson and wife to
James Wilson in fee simple. by deed duly
executed. The original is not produced.
nor its absence accounted for. II APP
pears 10 have been recorded In Phila-
delphia. where none OF the lands lay,
upon wholly insufficient authorization
to have entitled IL TO record then or SUBJ
sequently in Virginia. Deeds properly
attested for recordation, but recorded In
a county where none OF the conveyed
lands lie land, therefore, not properly ad-
mitted to record there). have been some
times admitted as secondary evidence.
Here the deed was never proved so as
10 be admissible to record in Virginia.
There is no evidence Of its authenticity,
and 1t cannot be introduced as secondary
evidence of the existence and contents
OF a lost instrument. OF which 1t is
claimed TO be a copy, when there Is no
proof of it's authenticity as such. See
Van Gunden VS.. Virginia Coal and Iron
Company, G. c. A., 294. Appellants
claimed relief under the statutes, Code,
sections 23G1-'64. or, failing in this, under
the general jurisdiction of courts of
equity TO set up lost papers.
Held: Courts OF equity, In exercising
their Jurisdiction to set up a lost instru-
ment, which is 70 constitute a imminent
Of title require strong and conclusive
proof OF it's former existence. its loss,
and contents. Thomas VS.. Ribble, "a S.
T.. r., 2A.
2. Though the answers contained much
affirmative matter unsupported by proof
and therefore unavailable to that extent,
they yet deny the whole equity OF the
bill; whereby plaintiffs were put on proof
OF their case, and tho defendants had a
right to rely upon the weakness of that
case. Nor can Ii be said that they
failed TO create a controversy because
they introduced no evidence to refute the
case made by the bill, which they deny
In their answers, and which Is unsupport-
ed by sufficient proof on the part OF the
plaintiffs.
TENANTS IN COMMON.
Woods VS.. Early. Reversed. Opinion
by Cardwel, j.
In 1S4S c. and F. bought a lot in
Charlottesville, on which they built a
house containing two offices, separated
by passage on which both Offices open
ed, and which was the only way OF ac-
cess to them and to vacant lot in the
rear.
There were afterwards sundry convey
ances to divers persons, each conveyance
being only of the interest OF the par
ticular grantor, c, however, retaining his
interest till his death, in 1886, and In
1890 his widow and executrix conveyed
to w. and A. "one fourth undivided
interest in the lot, the other
three fourths undivided interest in the
property hereby conveyed belonging TO
c. ID. F." In 1891 c. d. +. and wife con-
veyed IAN undivided half interest in the
law office now occupied by w. 81 A;
provided, that so long as the in
terror walls of the building re-
main unchanged, the said passageway or
hall shall continue tor the joint use and
benefit of the owners of the two offices,
aforesaid" In 1886, Early acquired all
Of c. d. F.'s then interest in the pro-
perty, bounded on the north by line
extending through the centre of the hall
or passage, which separates the office
now sold from the office occupied by
Samuel B. Woods" etc. Woods and
Early could not agree as to partition
or repairs and alterations. and Early
proceeded to take off the door at the
front OF the passage, to cut the brick
wall, and TO divide the passage through
the middle.
Injunction to restrain the altera-
lions, from exclusive possession of
any part OF the passage. TO require
replacing the door. and to repair
damage already done. injunction dis
solved, with leave TO file a petition OF
bill of review for a rehearing of the de-
cree within fifteen days thereafter. Re-
hearing refused and petition or bill Of
review dismissed and appeal.
Held: The petition TO rehear was pro-
perly dismissed. 1t could not be treated
as a bill of review, as the decree dis
solving the INDUCTION was not final de-
cree, and the petition to rehear did not
allege new and important testimony not
known or accessible before former hear
ing, and pointed out no error on the face
OF the decree
@ Appellee, In his answer to the origi-
nal bill, relied on the defence that there
had been a paral agreement of partition
between G. and F., or their grantees; or.
If this were not true, that he, as grantee
of c. u. f. had right to change the
inner walls, because c. d. f. had re-
served that right to himself in his deed
to w. and A. of 1891. and the trial court
seems to have taken that view in dis
solving the injunction. There is nothing
In the record TO sustain the contention
Of partition, and the injunction should
not have been dissolved.
3. Woods and Early are tenants In
common of an undivided piece OF pro-
perty, and neither has the right to alter
or change it to the injury of the other.
without his assent. Nearly all the
grants are of an undivided interest in
one or the other Office, and in none
are restrictions on the use of the pas
sage. unless 1t be in the deed from
G. ID. f. and wife to w. & A, Of 1891,
and that deed does not admit OF the
construction contended for by the APP
paIlee. The contrary Is the true con-
struction--that the inner walls could not
be changed by either party without the
consent OF the other. Cox VS.. McMullen,
IA Graft. 50.
4. Where easements or servitudes are
annexed by grant or covenant or other
wise, to private estates, the due enjoy
ment OF them will be protected by In
junction. II. Story's Ed, SEQ. s27.
Damages in repeated suits would not
compensate in such case. The injury
is irreparable, and calls for proven
tive remedy. such as equity only. can
supply. An irreparaole injury Is
q s.a,,otalv renarabla I'm damages: