Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1898-06-26

4 each consecutive year; that lessor havfn
8 / Terminates the lease without their con
sent or fault they are only chargeabl
with the ore actually mired and removed
They deny violations OF tho contract
, Insist they have complied in all respects
and have not damaged complainant. AR
, ready to account for all ores mined, bu
allege that complainant Is indebted t
, them In large sum for money advanced
by way Of royalties, and for damag
by reason OF the sudden and unwarrant
ed termination OF the lease, and ask al
account Of the amount due them, and {
| decree therefor.
Decree for account, and report, basel
on evidence OF sundry witnesses thai
there had been mined and removed 2.2y
tons Of ore, worth s575.S2; that there was
due lessees. on account Of the 5000 adj
yanced In royalties, S2.42A65. and that nc
damages had been sustained on either
side. All exceptions to report over
ruled, decree entered confirming II, and
| appeal.
Held: !. The parties having agreed that
their contract was intended as lease at
will, as admitted in the bill and answer,
1t must be so treated. and so the lease
was determined by the lessor upon the
| institution of this suit.
2. The contract did not require 1900
tons OF ore each year, but yearly aver
| age OF that amount during the twelve
years. 1t would have been unreasonable
10 expect the lessees to take out as much
| the first year, in view OF the necessary
! large and expensive preparations re-
| quired, as they could do thereafter when
| everything was completed and in good
working order.
3. The findings OF the commissioner
that there had been no violations of the
1 contract by the lessees are sustained by
the evidence, and appellees have forfeit
ed none OF their rights under the con-
tract.
4. Having complied with their contract,
and the lease being terminated by the
lessor without fault on their part before
they had taken out enough ore to reim-
burse them the sum advanced on account
of royalties, the appellees are entitled TO
recover from appellants the difference
between the sum so advanced and the
ore actually removed at the price per ton
provided by the contract.
PREMATURE SALE.
Wytheville Crystal Ice, ETC., Company
VS.. Frick Company Q.imitedD. Re-
versed. Opinion by Rely, J.
Appellee company recovered judgment
VS.. appellants on whose real estate were
two deeds Of trust. Their Judgment be-
ing subsequent 70 the trust deeds, was a
lien only on the equity Of redemption.
Held: Appellee could not have trusts
enforced and the lands sold to pay the
debts secured thereby unless the debts
had become due and payable. The lien |
Of the judgment on the equity of re-
demption, could not operate TO change the
contract between the parties to the i
deeds Of trust prior to the recovery of
the judgment. ShurtZ VS.. Johnson. Is
RI xyc a vi
1903
2. Nor could the lands Of the other de-
PENDANTS to the judgment. who were sur
viHng sureties on the debt, be sold be-
fore the lands of the principal were sub
tected. The rule in such case was laid
down in Horton VS.. Bond, q Graft. SIS,
and has since been uniformly followed.
g. one Of the sureties on the bond had
died before judgment recovered, and a
separate judgment was obtained against
his representative. 1t was error not to
have made his personal representative
and his widow, who was his sole divisee,
ETC., parties defendant to appelee's bill
10 enforce the judgment lien. The judg-
ment against the estate was for the entire
debt. Non constat but that 1t, or part
Of it, had been paid out of the assets Of
the estate. IL not. yet these were proper
and necessary parties in order that de-
| i
the judgment might be ascertained.
4. 1t was error to decree that the land
be sold on credit, the deed prescribing a
sale for cash. The terms OF the deed
must prevail, and the Court had no power
% change the contract of the parties.
Tultz VS.. Davis, &c Graft, 90S Woods,
tIxcr VS.. Krebbs 80 Id, GS5; Pairo vs..
Bethel, 70 Va, SIS; Simpson vs.. Bishop, ,
= '"'' A'O' prcCISSrON Il ,
dcLanahan VS.. Ivanhoe Land and I'm 4
provement Company. Tredway vs.
same. Waugh VS.. same. Snead's Adj
ministrator vs. same. Sneed VS.. same. 4
Snead e. Snead VS.. same. Reversed.
Opinion by Cardwell, ]. {
All these causes were heard together In a
he court below, with their companion
ase Grosh VS.. same, q S. 10. r. 81, SO
a. The main questions involved are a
ettled in that case. The only remaining :
uestion Is whether the complainant Y
lakes case emitting him to the relief q
@ asks as TO 10 shares Of the capital =
.ock of the company subscribed for or
by him.
On the 4th OF July, 1890. Mechanism a
NV an advertisement Of the company
the Roanoke Herald. Wrote the secre- q
Try and treasurer for maps. descriptive a
lmphlets, &C., and asked IL any "Ivan-
De" stock could be had, and the price. y
g sent them at once, commended highly N
10 lots OF the company, and concluded
$ letter with tho statement that the a
mpany had natural and Industrial ad
lntsges, energetic and influential men .
lex OF IL. and enough capital to place a
e success OF 'Jvanhoe" beyond ques
IN. 1t is not denied that the company .
ceived from him the 20 per cent as a
ssment upon this stock when issued,
csving the benefits pro tanto of D
csc contracts OF subscriptions to its a
pital stock, procured by material rep -
sensations that were false. Though "
may have paid these parties a bonus O
get this stock, the contracts were n
lde by him with the company, the GER
cates issued directly TO him. d
Held: The company cannot be permitted N
reap benefits from contracts OF sub
option 10 its stock into which the sub q
.iber has been deceived by fraud or N
representations Of the company APP
liant is entitled to have these contracts o
subscriptions annulled, and to have 90
ck from the company the money paid
,reon. This applies only TO the assess
nts paid on the 100 shares issued Au- =,
st 26 and q, 1890. The evidence is not "'
ar as to the ten shares issued June 20,