The times. [volume] (Richmond, Va.) 1890-1903, 1897-11-19

fis-Ts ltDutIlnB a 0cti OF ttuHl upOu Nnt
| part OF the lot on which there was only
| the lien to secure NJ. Meantime the notes
| to NJ. had been endorsed 10 the Roanoke
| Savings Bank which holds them as an
innocent purchaser for value.
Before the Knoxville Company paid
| over the money. II had the title examin-
| ed. and. ascertaning the existence Of the
| liens. refused to make the loan. There
| fore r. induced NJ. the apparent owner
| Of the first lien securing the two 500
| notes (which the Savings Bank now own
| ed but of the transfer of which the
| Knoxville Company was ignorant TO en-
ter on the margin of the deed
| book in which the encumbrance
| was recorded that 1t had been satisfied
| TO her the effect OF which was to re-
| lease the encumbrance. Code sec. 1888
Thus the Knoxville Company became
| the first lienor upon so much OF the LOT
| as was conveyed 10 trustees to secure the
| loan made by IT, The equity Of the
| Savings Bank was not affected. 1t had
| acted in good faith. had lent its money
| after an examination Of the record which
| showed that the notes purchased by It
| were secured by q first lien: yet by q
| fraudulent combination between the orr
| ginal payee of the notes ana the grantor
| ia the deed Of trust the lien was marked
satisfied" and the legal title OF the trus-
| tee in the deed 10 secure the notes. the
| benefit OF which accrued to il by the
assignment, was by this fraud defeated
aud rendered wholly valueless.
The Knoxville Company, ignorant Of
the situation, and with nothing TO put II
on inquiry as to the transfer of
the notes dealt with the record
| as 1t found &C. The result Is that
| the deed to secure the notes held bv tho
Savings Bank was released. so far as the
Knoxville Company is concerned. and
being an innocent purchaser relying upon
the public record it stands before the
court with an equity equal TO that OF the
savings Bank and with a legal title vest
ed i'm the trustee for its benefit.
He'd: The equities being equal the legal
title must prevail. Williams VS.. Jack
son, II Otto as; Nat Valley Bank Of
stanton VS.. Hartman - Va. co.,
credit was extended l.. for 5000 by Il
on the basis Of this property, who took
a deed on the property already under a
Zen TO the Old Dominion Loan Associa-
ton, and second lien to secure the notes
TO Nj. Part of this credit 1863 was ex-
tended while the lien TO the Savings Bank
was in full force and effect by the record
and further credit was refused until this
lien was discharged. After it was mark
ed Satisfied" further credit Of $ls1
was extended
Held 2: Az to the $500 +. cannot be con-
sidered an innocent purchaser for value
and without notice and there is grave
room to doubt whether he can be so held
as to the $751;, under the circumstances
Of this case; but that is a point It is not
necessary TO decide. The entering Of
satisfied ca the record while it ope-
! rated as release TO that encumbrance
| did not enure to put the legal title in the
| trustee In the deed made for Els bene-
! fit because upon this particular piece OF
| property the legal title was outstanding
| In the trustee in the deed TO secure the
| Old Dominion Loan Association As to
| the $l3l, T.. was the purchaser of a mere
| equity-an equity equal 10 that Of the
| Roanoke Savings Bank. but a junior
] equity which must be postponed 20 the
| elder. Williams VS. Jackson, supra.
! Briscoe VS.. Ashby, "a Graft, 454
Held. Lastly: Che decree Of the lower
| court is erroneous in so far as It post.
| pOnes the lien of the Knoxville Company
10 the Savings Bank, and to that extent
! Is reversed: as 20 Evans il is affirmed: as
10 NJ. and r. they having perpetrated a
| fraud on the Savings Bank, are respon
siblo to it for any loss sustained.
The cause is remanded with directions
10 decree against them In favor Of tn
| Savings Bank, such spun as may be ne
cessary 10 indemnify it against loss b,
reason of said fraud.
EVIDENCE. EQUITY PLEADING.
Barley &c, VS.. Byrd & Co. Affirmed
Opinion by Judge Keith. p.
A bill to remove cloud from title e
! II 900 acres of land in Bath, Highland
Rockbridge and Augusta counties, alleg
ing n grant by the Governor of Virgin;
I'm 1895 10 Thomas Wilson
1t is averred that deed from ThOma
| Wilson and wife TO James Wilson, exc
cuted some time between 1926 and 1897 ha
been lost. and the object Of the bill is 4
! have a decree setting up this deed, an
| for general relief
Stated briefly the case hinges on tn,
| evidence. as 20 whether the alleged los
deed was ever executed and delivered.
There is memorandum dated Marc
10. 1886, conceded to be In the handwrit
! ing Of and signed by Bushrod Washing
| ton who was the attorney OF James WI
| son. i'm which is the following statement
These lands are granted 10 Thomas VII
son. and by him and wife conveyed will
| general warranty TO James Wilson, o
| Philadelphia. TO be recorded in the Gen
| cral Court This paper was found
among the papers of James Wilson. IL
antiquity and authenticity are establish
ed by proof
Held l. The admission Of such evi
dence is In derogaton of the ordinary
rules and rests upon moral necessity.
and the operation Of the exception Il
limited to the character of the doalnl
to which the law has ascribed prmS
facie a restitution of the ordinary means
Of proof, viz. The daily sale and barte
of merchandise and other commodities
the performance of services and lettin,
of articles 10 hire. and probably the pay
mcnt from time to time of money place,
! on deposit. circumstances so frequent il
occurrence. and 50 trivial i'm their indi
Vidual amount that the procurement OF
formal proof could not be expected anC
| would not compensate for tho time neces
sary for the purpose" Price VS.. Norton
| / Wash. Is: Downer & Co.. vs.. Morrison
Graft. $50. Conceding that Bushrot
Washington was the attorney at law o
James Wilson. we know OF no principle
of law or evidence which would rcnde
the memorandum made by him evidenc
or the execution of the alleged deed
.: Neither Washington nor any perso
I'm privity with him being concerned 1
this litigation. the memorandum canno
be admissible as a declaration against INF
interest; nor does 1t admit the pOssessio
Of the deed TO be in Washington.
3: IL is no part of the res gostae be
cause not $50 connected with the yer
transactions or fact under investigate
as 10 constitute part OF it, Hayne
case, % Graft 9i5
IL: A deed OF trust made by jaime
Wilson and wife to Il and others contain
a recital that the said land was conveye