The times. [volume] (Richmond, Va.) 1890-1903, 1897-07-18

referred TO in the contract, and the Ian
guage does not plainly indicate a sale IN
gross, a sale per acre will be presumed
Boschen VS.. Jurgens supra.
5. There being a conflict OF evidence as
10 the location Of lines. an issue out or
chancery TO determine their location and
whether or not there was deficiency,
was proper: and the chancellor has the
right 10 modify the verdict rendered on
such issue. Reed VS.. Axtell, 81 Va. 2Sl.
3. Interest should have run from the
date OF the deed from Hull TO Harrison.
instead Of from date OF suit begun. and
the decree Is amended in this respect
under Rule TX.
EXEMPT FROM TAXATION.
Fulkorson. Comr. vs.. Treasurer Of Bris-
tol. Reversed. Opinion by Judge Rely.
This case presents the question whether
notes in possession Of a commissioner
executed for the purchase OF property
at a court sale are subject 10 taxation.
All persons are required 10 furnish the
Commissioner Of the Revenue list or
their personal property. including cred
its--Code sec. 49l--and the clerks Of courts
are required 10 furnish him with list
Of an bonds and funds held by commits
sioners or receivers under authority Of
AHAAN+"
purchase price OF property sold under de-
cree OF such court, sec. 49, Such notes
should be listed by the owners. and II
further taxed through commissioner or
the court It would be double taxation.
The Act OF March 4th (Acts 1885. p
770 is only applicable 10 taxes assessed
for 1896 and does not add 10 the list OF
taxable property nor increase the sub
jects OF taxation; what was formerly
the clerks duty becomes the duty or me
Examiner OF Records for each circuit. IL
does not expressly repeal sec 4s5 or the
Code nor does II contain anything incon-
eistent Herewith. Hogan Us. Judge Gui-
gon. % Graft 10. Neither is 1t repealed
Inv implication. Fox admir-. Us. Com.
rs Graft. ]: Davies eco vs.. Creighton
ar Id sos: Henderson's Tobacco. IL Wall
cs, Sc. NcCoal VS. Smith. l Black, L. ;
49,
The plaintiff was taxed for the years
1S43-4-5-G. He moved the court for relief
December 10. 1896. Under the express
statute Code. sec. SGD the court Is only
authorized 10 relieve from erroneous as
sessments within two years after delivery
Of books 10 the Treasurer. 1t is pre-
sumed the officer did his duty, in the
absence Of evidence, 10 the contrary. and
that the books were delivered in July Of
each year. Hence the court did not err
I'm refusing 10 exOnerate from the pay
ments for the years 1S93-94. but did err
as TO 1856 and, therefore, judgment
must be reversed.
RESCISSION.
Hurt. &c. VS. Miller, &c. Affirmed.
Opinion by Judge Cardwell.
Miller sold 10 Hurt and Adams lot
of land. part cash, and balance evidenced
by "a note subsequently assigned 10 bank
Default Of payment. and Miller. on be
half Of the bank who were later made
parties on q cross bill. brought suit
Answer. alleging false representations
and defect in title and asking rescission.
Held j: \ contract will not be rescind-
"a for fraud or mistake, unless the com
plainant act promptly on discovery Of
the fraud or mistake
o. When impossible 10 put the parties
I'm statu QUO by rescission. the courts will
not rescind.
Q. a contract procured by fraud is not
void. but only voidable at the election Of
the dcfrauded party. who must act
promptly. If property be of q speculative
character delay. which ordinarily might
De OF no consequence may bar relief
Martin VS. SO. Salem Land Co, 25 s. +.
H.. son.
PARTITION.
Martin vs. Martin. Affirmed. Opinion
by Judge Cardwel.
Suit for partition Of land among heirs
at law. Misnomer in the bill OF a proper
party defendant, l.. though process was
duly issued and served on her as on tho
other defendants. except T., trustee. in
a deed made by intostato. Bill taken
for confessed as 20 all defendants and
commissioners appointed TO make parti-
ton i'm kind If practicable. Partition
IL q. af
case for hearing. Exceptions by J., de-
PENDANT. and demurrer and answer filed
hy him. Demurrer that J.. had not been
made a defendant and process not served
on f.. trustee. BIZ amended by insert
ing proper name. when both l.. and T..
trustee. entered appearance by counsel
and consented 10 hearing. Demurrer
ovorruled and report confirmed.
Held I. Misnomer in prayer of bill cured
by process served and amendment.
% Trustee not a necessary party Par
tition does not affect mortgages and
judgment creditors. 4 Minors Inst. 1913;
Barton Gu. Pract. go and cases cited.
As 10 them when made parties. good au-
thorities hold the bin may be dismissed.
They cannot be compelled 10 join in a bill
for partition nor can any relief he had
against them. Johns. Chan. Pract..
40. Minor ibid.
g. The policy OF our statute OF
partition Is opposed 10 the sale Of the
land. and when incapable Of fair divi-
sion the court may compensate by
charge upon the. land by way Of rent.
servitude or easement. 4 Minor. ibid:
Pomeroys Eq Jur.. sec. 1880; Smith vs..
Smith. 10 Paige 40.
TAX SALE OF LAND
Thomas VS.. Jones. Reversed. Opinion
by Judge Harrison.
Suit 10 subject land 70 vendors lien
due by &. to J. Land was sold for taxes
I'm 1899 and bought I'm by the state. After
sale G.. died and X. qualified as his adj
rninistrator. Land not redeemed in two
wears. and r. filed application and be-
came purchaser acts lS95-'96. p. 2l9)
the clerk making him the deed. which was
duly recorded.
Held. Title thus acquired only defeated
by proof that taxes or levies for whicb
sale was made were not properly charge
able on the land or house or have been
paid. Acts. supra. Code. sec. 81.
. For same reason that taxes are OF
prior dignity 20 Judgment liens so also
they must be preferred 10 vendors lien.
simmons vs.. Lyle's administrator. 30
Graf. 7J2.
NEGLIGENCE.
Osborne VS. Pulaski Light and Water
Company. Affirmed. Opinion by Judge
Harrison
Defendant laying water pipes cut a
ditch across sidewalk. The removed
l. ef a