Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1898-09-18
THE SUPREME COURT.
navy OPINIONS HANDED DOWN
LAST WEEK.
Tribunal IS SITTING In SThUNTON.
Number Of Important Gases AdJu-
Gated, and I'm some Instances Lower
oilers They We're Reversed.

Tho Supreme Court, which is sitting In
s,sunton. is having quite a busy session.
.,l the docket for the term is quite a
,.,rthv one. The business Is. however.
ne.nx expedited as rapidly as the wheels
~ Justice. wrapped. as they are. with red
zane. can turn. and last week many opin-
,,gs were handed down.
some exceedingly delicate points of law
arc treated extenso. and in one case the
,osr, passed upon point which. so far
ss hey were aware. had never been
raised in Virginia's court Of last resort
before.
Tae opinions in the abstract are hereto
appended:
Question of Dover.
James. &C. VS.. Upton. &C. Reversed In
part and remanded. Opinion by Buch-
alan. J.
Gatewood trustee. conveyed land in
$50 10 Miles for $4,000 part cash. and
cstemporaneous deed of trust for credit
payments. The same year Upton. ST..
4greed with Miles for the purchase of
the land az the same price, and went
into possession. In 1872 Upton, Sr., as
signed all his right title, &c, in the pro-
perty. and his agreement 10 purchase. to
Upton, Jr, and, a little later, assigned
l.m the bonds executed by Miles and
secured by the deed of trust, all of which
had been paid by him out of the purchase
money due by him TO Miles.
In December, 1872 Miles and wife con-
vtyed all their right title, &c. to I'ptOn.
yr. for Sl.S2l paid by Upton, ST.. In 1875
Upton, Jr, conveyed 10 Small his inte-
Iest IN the land for Sl525. Small died in
-,4 without issue, and hts heirs conveyed
their interest for 81 to his widow, who
has since married James.
I'm 1880 Upton, Jr., and wife brought suit
against James and wife to subject the
property 10 tho bonds Of Miles. secured
ly the deed of trust, the bill alleging
that Small had knowledge of the deed
when he purchased, and undertook and
expressly agreed that the property should
De liable Tor the debt secured by IT,.
James and wife demurred 10 the bill
Now comes in Mrs. Upton, Sr., by petit
ton, claiming dover in the land, which
compliments denied.
LOWER COURTS DECISION.
Court below held that Mrs. Upton. Sr.,
was not entitled 10 dover; and that Mrs.
Upton, Jr.. by virtue OF the assignment
of the bonds secured by the deed exc
Cuted by Miles, had a valid and sub
ssting lien, and directed sale of property
for its payment.
is Mrs. Upton. ST., entitled TO dover?
When her husband purchased he agreed
q pay Miles $4,000 IN a few months he
learned OF the deed Of trust 70 secure the
balance due by Miles on his purchase.
and Of certain judgments against Miles
docketed before Miles sold 20 him. He
was advised by counsel that 40 the eX-
tent that he paid off the debt secured
By the deed he would have an interest in
nd 20, no ind Yrrr mt
that in so far as Miles had acquired an
interest in the land by paying the pur-
chase price il could be subjected to the
payment Of the judgments.
He afterwards paid all the bonds and
several OF the Judgments and deducted
the amounts so paid from the purchase
price, and paid the residue TO Miles-all
before his assignment TO Upton. Jr., cX-
cept, perhaps. part of what he paid Miles,
which may have been paid after his as
sisnment TO Upton, Jr, but before Miles
aud wife, pursuant to assignment con-
veyed the land 10 Upton, Jr.
Held: /. When Upton, ST., paid the
bonds secured by the deed out OF money
he owed Miles. and received credit there
for, the lien of the deed was discharged.
Ito took no assignment Of the bonds or
the deed, nor had any right to an assign
ment Of either. The debt secured by the
deed was Miless debt. was paid out OF
the proceeds of the money due Miles for
pletely as If Upton, ST., instead Of pay
ing the bonds. had paid Miles. and Miles
had applied the money TO their payment.
Gayle vs.. Wilson. 80 Graft. 166; Brown
vs.. Lapham, SOL: Pom. Eg. Jur., secs. 70,
1913: Shepherd VS.. McLain, is n. j. Eg.,
Us.
UPTON, SIR. HAD NO INTEREST.
OF course il Mnes's creditors who held
liens inferior to the deed. but resting on
the land when Upton, Sr., purchased 1t,
had subjected the land to payment OF
their liens the lien of the deed would be
revived 10 protect Upton, Sr.. and those
claiming under him to the extent that he
had paid the bonds secured thereby out
az the purchase money due by nm 10
Miles. But Upton, Sr., had no interest
whatever in these bonds, and he cannon
make any use of them, nor Of the deed
which secured them that could ai1ect any
right Of denver his wife might have had
I'm the land
2 Though a husband may not have ac-
Quired the legal title TO land, II he mas
paid the entire purchase money and mas
a perfect equity 10 compel conveyance
% the legal title. his widow Is entitled 10
dover. Whether so entitled where he has
sNened before acquiring the legal ute, or
paying in full so as to perfect his equity
depends upon the construction OF secuOn
900 of the Code, a question not declded
hv this court in any reported case. IL
was neither involved nor decided in Row
ton VS. ROWtOn or Claiborne VS.. Hender-
son. 1 VI. & Munf., 81. 322 where II seems
m nave been assumed that the husband
must have a perfect equity 10 ehtitIe MS
vie 10 dover. .
g The manifest object Of the statute in
force since January /. 1871 az Hen. stat s.
1900 was 10 abolish the COMMON law RUE
that a widow could not be endowed oil
her husbands trust or equitable estate,
ana 10 confer upon her the same rights
ln such estate as in his legal estate. 2
Minors Inst, III; LomaX Dig NJ page
90.
WAS THE WIDOW ENTITLED TO
DOVER?
did linton. Sr. have such n beneficial
interest when he sold or assigned to Up
ton. Jr.. that II he had then held the legal
title subject 10 the lien for credit pay
ueut. his widow would nave peeh en-
titled 10 dover in IL in the HANDS OF MS
altnee subject 10 that lien2 Ihe COM
mon methods Of securing credit payments
rs for the vendor TO retain vendor ;
Hen or 10 retain the title TIL pald; III
either case the vendccs widow would De
entitled TO dover subject TO the heh'
a husband who enters into an agree
ment 10 purchase land. takes possession.
and pays part Of the price, IS behehclai9
fclsed TO the extent that ne mas palu;
though he has not acquired the 49,
title and his widow - enutled 70 uVMeI
subject 10 the lien for the unpaid purchase
tr5T. whether he die possessed OF the
land or has aliened it during coyer.urS
without her legal concurrence. -
fore Mrs Upton. ST., has dover ia w
land and inasmuch as the unpaid pur-
chase money due thereon was paid by her
husband after alienation TO Upton Jr"
and the lien thereby removed, she IS en-
titled 10 dover IN the whole land SUBJECT
70 section PTS OF the Code.
The court Is equally divided as TO the
rlsht OF Mrs. Upton Jr., to subject the
residue Of The land to the claim asserted
fs