The times. [volume] (Richmond, Va.) 1890-1903, 1897-11-19
THE TlMES-RICnMOND, VA FRIDAY NOVEMBER 10. 1897.


record in Virginia. There is no evidence
q, lie authenticity. and It cannot be intro
duced as secondary evidence or the exist
ence and contents OF lost instrument OF
which II Is claimed 10 be copy when
there "a no proof OF it, authenticity a.
such. See Van Gunden vs. virginia Coal
and Iron Company, 3 G. G. n 24 Appel
Iants claimed relief under the statutes,
Code sec. 236l-'Cl, or falling 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 los, lhstru-
mont which is to constitute a imminent
of title require strong and conclusive
rroof Of it's former existence. JUS loss ana
contents. Thomas VS.. Ribble, - >. T. H.,
2i.
2. Though the answers contained much
Affirmative matter unsupported py pIVoi'
and therefore unavailable to tnet extent
they yet deny the whole equity Vi '"o
bill: whereby the piaintlns "ele ~ vi
proof OF their case, and the ueleiio-li.s
| had a. right TO rely upon the weakness OF
| that case Nor can il be said that they
failod To croatia a controversy because they
INTRODUCED M evidence to refute the case
,nade NV the hill which they deny IN ther
| answers. and which IS unsupported Dy
! sufficient proof on the part OF the pam
| tiffs.
TENANTS IN COMMON
woods vs Early. Reversed Opinion
\ by Judge Cardwell. -, T.. CHA
| In 1915. c. & +. bought lot III nal
| ,o,,os,,;lio on which they bullt Il houSe
| containing two offices, separator ps
'ossa,'o on which both Offices opened
| and which was the only way Oh access 10
| then and to a vacant lot in the ie'r'
| There were afterwards suhurE oO'F'9
| ances To divers persons oach cohNeyanOD
| being only Of the interest oil 'ie pa
ior s'rontor c., however, retaining ms
10. So, ,ili his death in 1856; and In 1890,
| bis widow and executrix conveyed 10 W.
| e. n "one-fourth undivided interest IN
| ~ tot sss the other three-iourths un-
| dl,idod interest I'm the property mere
| nv conveyed belonging to {. j. III
| 1901 - u Il. and wife converted IAN UNI
| divided interest In the law once now
| ooounted by w & :. PROVIDED
| bot ca long as the interior walls OF the
| huildir,. remain unchanged the sald
| massage way or hall shall continue TOT
| tho Joint use and beneht OF the owners
| of me two officers aforesaid I'm lNO'
| Early acquired all OF G. -. interest
| in the property bounded on ,he nor 'n
| by "a line extending through the centre
| lf
| the Office now sold from the Office occu-
| nied nv Samuel y. woods. etc" Woods
| and Early could not agree as 10 PARTITION
| or repairs and alterations and Early pro-
| coeded TO take off the door at the front
| Of the passage TO cut the brick wall ana
| 10 divide the passage through the middle.
| Injunction to restrain the alterations
| from exclusive possession OF any part
| of the passage. 10 require replacing the
| door and TO repair damage already uohe'
| Injunction dissolved with leave TO file
| a petition or bill Of review for . rehear-
| ing OF the decree within fifteen Gays
thereafter. Rehearing refused and pc
| tition for bill Of review dismissed and APP
| peal
| Held: The petition 20 rehear was pro-
| porlv dismissed. 1t could not be treat
| cd ms q bill OF review as the decree dis
| solving the Injunction was not maj
| decree and the petition TO rchcar dlo
| not alege new and important testimony
not known or accessible before former
| hearing and pointed out no error on 'he
| face Of the decree.
| 2. Appellee in his answer 10 the origi-
| nal bin relied on the defence that there
| had been a paral agreement OF partition
| between c. and +. or their grantees or
| if. this were not true, that he as grantee
| of G. ID. +. had a right TO change the
| inner walls because G ID. +. had reserv-
| ed that right TO himself I'm his deed 10 W.
| A. A.. Of 1891. and the trial court seems
| to have taken that view i'm dissolNing
| the Injunction. There IS nothing IN the
| record to sustain the contention OF par
| tition and the Injunction should not have
| been dissolved,
| 3. Woods and Early are tenants In
| common Of an undivided piece of prop
| erty 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 passage unless II he
I'm the deed from G. j. +. and wife 10
| w. & A.. Of 1891, and that deed does not
| admit Of the construction contended Tor
by The appellee. The contrary is the
true construction. that the inner walls
| could not be changed by either party
| without the consent Of the other COX
VS.. McNlullen. Il Graft. So.
| T. Where easements or scrvitudcs are
annexed by grant or covenant or other
wise. 20 private estates the due enjoy
ment Of them will be protected by injunc-
ton. 2 Story's Eq. sec. s2'
| Damages in repeated suits would not
compensate In such a case. The injury
IS irrcparable and calls for a preventive
remedy such as equity only can supply
An irreparable injury is a gricvous one
or at least a material one. not adequate
lv rcparable I'm damages not necessarily
such an injury that there can be no ply
steal possibility Of repairing. Sanderlin
VS. Baxter &c Va. 30j, and many cases
cited.
The Injunction will be rcnstatcd with
costs TO the appellant and the cause is
remanded to the Circuit Court for such
! further proceedings therein as may APP
| pear i'm accordance with this opinion.
Lightner's Administrator vs.. Spcck Ad-
mlnstrator. Reversed Opinion 10y Judge
Cardwel
This is a sequel TO Lghtner. ETC.. VS.
Ilghtner. etc. decided at the November
term. 1895. %. :. +. r.. 30i. All questions
Of importance were decided in that case
ana certain exceptions to a commissions
or's report are all that is passed upon
now.
Commissioner Smith VINO made tho
first report FOUND that the son owed tho
father at the lattcr's death 1854 for rent
of farm. but that he was entitled &c
have this sum. set OF against $3.50 foi
permanent improvements by him. leavinl
the estate indebted to him Sl5il. Com
missioner Waddell. upon the same evil
dence finds the same sum due for rent
and allows only $i42i for Improvements
leaving the son i'm debt some $500 The
Circuit Court confirmed Waddelis repor
and decreed that the sons widow an'
/ r..f.. lffaffn tef d n