Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1898-03-18

per sued on was executed. plaintiffs ha'
received from the sale OF the Adams pro
perty $1,000. which had not been credite'
on their prior lien. but improperly ap
piled to another debt. and that. II pro
perry applied, defendant would owe no
thing. The lower court practically ~
held. Motion TO set aside judgment OF
the ground that under the %pleadings de
PENDANT could not show he was entitled
to the credit, and that the evidence die
not show he was so entitled.
Held: The covenant is affirmative, and
the plea OF conditions performed" wa'
proper; there being no negative covenant
the plea Covenants not broken" was
bad. Covenants performed can only
be supported by evidence that defendant
has performed his covenant; not that his
own performance was excused by the
act Of the plaintiff or any other. / Bar
ton Law Prac., section l25; Fairfax VS..
Lewis, 2 Rand, 20; Scraggs VS.. Hill, -
~. Va. 7O6.
The evidence does not sustain the plea,
and defendant should have filed a special
plea setting forth the fact relied on-the
failure Of the plaintiffs to make proper
application Of the 1000, which credit
would have left nothing due from him.
Barton's Law Prac., Ibid.
WILL CONSTRUED.
Booton vs.. Bottoms Executor, &c.
Affirmed. opinion by Rely, j.
Testator died in 1916 leaving a large
estate, real and personal, devising, &c,
the larger part OF IT TO his wife for her
life. But for the loss and depreciation
Of property consequent upon the war the
property given her would have been am
pie TO make all the children equal in the
final distribution of the estate. In the
result it was comparatively Of small
value.
1t is evident from the will that testator
designed that each child should receive
land as part of his share as nearly equal
I'm value as practicable; and where i'm
practicable, that equality should be at
tanned by contribution i'm money or per-
sonal property. But it is equally appa-
rent that his intent was hat equality
should be the controlling principle in the
division, and that any distribution which
in the final result would produce in
equality would subvert the scheme Of the
will.
Held: Though there was an inequality
Of some 5000 in the value Of the land
allotted appellant and Edward Booton
which was not made good to the former,
yet as the share allotted TO and received
by him in land, slaves, and money, long
years ago, amounted 10 more thar an
equal share Of the estate distributed and
which remained for distribution, he
mad no ground of complaint at not
sharing in the remnant. and his excep-
ton was properly overruled. The DEGREES
1861 and 1895 to the effect that the
difference in value Of the LAND allotted to
him and Edward should be made equal
as of the time he received it, were neces-
sarily based on the assumption tina in
The final HiGfpiIhffa, thnYn yvn.,lI -. :
enough property to e~qualize the shares
all the children. When it appeared
hat such was not the case, it was the
iuty Of the Court to enforce the principle
If equality as disclosed in the will. These
.lecrees were introductory only, and il
competent for the Court to rehear
md amend them, which technically could
My be done on a petition to rehear. To
'everse the lower court on this technical
'rror would be in no wise beneficial, for
hey could still be reheard when remand
ID, n the same distribution made as
low. When, upon a survey of the whole
ecord, a judgment or decree appears
learly TO be substantially right, It ought
o be affirmed, though open to question
pom some particular point not affecting
merits. 4 Minor, Part l., g $50.
2. The suit was brought by appellant
1857, and allowed to slumber on the
ocket for nearly thirty years after the
Meantime property had greatly
Uttered, and some Of the devisees had
led. After such a lapse of time and so
reat laches and the death of parties
aturally interested, the litigation should
and not be prolonged for a mere ,
echnical error, not affecting the merits. ,
NO DEBT. :
'ottingham's Administrator VS.. Lynch 3
burg Trust and Savings Bank. Re- {
Nersed. Opinion by Rely, J..
The sole question is whether a certain :
ote is a valid debt. .
Held: 1t is very clear from the evil 4
that there existed no other in 4
sbtedness from Nottingham, except that =
hich arose out of the Mt. Athos trans =
,tion, and the entire amount thereby =
CURED has been allowed, and was evil .
enced by other notes than the one I'm :
.'ntroversy, in one of which it was in :
!
ORCHASE OF DELINQUENT LANDS. p
coke, Clerk, VS.. Turner. Mandamus L
Opinion by Rely, j.: o
filed with Brooke. Clerk, under t.
cts lS9o-96, page 2l9l, an application for o
lrchase of land previously purchased by d
e Commonwealth for delinquent taxes. T
ne Clerk refused copies of the applica- Of
IN for service, because it was not ac- al
mpanied with the purchase money. and
e court below issued its mandamus. X
Held: l. The act was imperfectly drawn. ty
ID its construction is not without diff M
Ity. 1t nowhere prescribes expressly az
g tim Of payment, but It IS beyond u'
estion that the purchase money must u
PAID at some definite time. The object 81
the statute and the settled policy Of !,
@ Legislature in regard 10 the sale OF !.
linquent lands must be considered. -,
Xes are necessary for the maintenance ~
the government, and It is Of the ut =
'st Importance that they be regularly -
d promptly paid. Prior legislation - -
the same subject required sales ~
be for cash, and still does. -,
)de 63S, and this has been the set ~
d policy for over a century, at least. H.
G Act of January %, 1896, discloses no 40
ention to depart from this policy. et
The general words Of an act are not
be so construed as to alter the previous
icy of the law, unless no sense or ia
aiming can be applied to those words !
lsistently with the intention Of pre- 1
wing the existing policy. Equivocal 10
rds are not accepted as implying an in Il
[ TO depart from a settled statutory an
icy. Sutherland on Stat. Con-, Sec. pr
Minet VS.. Leman, 20 Beavan 269; At COZ
ney-General VS.. Smith, 81 Mich, 357; ~
VS.. Van Welt, 30 ID, lis. ~
SPECIFIC PERFORMANCE. we
'hecharlie VS.. Rochecharlie, &c. AZ Go,
med. Opinion by Rely, j.: 500