Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1898-07-10

! lions, rendering tne uanSactiOn fraudu-
lent. was not raised in the pleadings.
and therefore, cannot be made ground
for relief.
SPECIFIC PERFORMANCE.
Matney VS.. Rattibbs, Administrators. AZ
nrmed. Opinion by Buchanan, J.
A grant by the Commonwealth was Is
| sued TO Johnson more than a hundred
years ago. The land has never been placed
| upon the books of the Commissioner Of
| the Revenue for taxation, and 20 taxes
| have ever been paid on it by Johnson or
! those claiming under him.
Held: Johnson's title has been forfeit
| ed TO the Commonwealth. stats VS..
| Board. 10 Graft, 100, Wild's Lessee VS.
| serpeH ID 4oj; Hale vs. Branscum, Id,
49, The fact that there Is nothing Of re-
cord TO establish such forfeiture does not
make 1t the less complete. II becomes alb
| solute and complete by the failure 10 en-
| ter the lands upon the Commissioner
| books, and to pay the taxes, as prescribed
| by act Of February q. 1855. and no mat
| ter Of record is necessary 10 cOnsummate
| and perfect the forfeiture. Same cases.
2. Where upon a given state OF facts
the law is settled that title Is absolute
~ forfeited TO the Commonwealth. when
those facts are shown 20 exist there Is
no cloud upon the title Of a subsequent
grantee OF the Commonwealth Of the same
land There being 10 cloud upon the title,
there Is no error in the decree for speci-
dc execution of the contract requiring APP
pellant TO accept the title.
3. In his brief. but not In his petition,
for appeal, appellant assigns as error the
oyerruling Of his demurrer. There Is no
thing in the record TO show a demurrer
was filed. the only reference to one being
a statement in his answer that he re-
serves "all just exceptions 10 the many
defences by demurrer to bill, &C. I'm
der the most liberal construction OF plead
ings. that statement in an answer could
not be regarded as filing demurrer.
1t is also assigned IS error that the per-
sonal representatives who brought SUIT
for specific execution did not snow thelr
authority to sell decedents lands nor
make his heirs parties to the suit.
Held: The bill ia defective In both these
respects. and had it been demurred TO,
the Court would doubtless have sustained
the demurrer, and required 1t 10 be
amended before relief could be granted.
Appellant made no objection TO these de-
fects but answered that he made his
contract with the personal representa-
tives. and that they. with the other heirs
at law of decedent. signed and executed
n boud 10 him for title IL thus appearing
that the heirs authorized the representa-
tives to sell, and were parties 10 the sale,
and have made a deed by way OF escrow,
TO be delivered when the purchase money
has been fully paid, nothing could be
gained by requiring the bill TO be amend
ed. since the record shows all that IS ne
cessary to be shown.
CONTRACT.
Banner VS.. Rosser. Amended and Affirm
ed. Opinion by Rely, J.
In 1880 Banner sold ROsser 90i acres for
$4,000, Of which 5000 was to be PAID
down, $4,000 in May, and 5000 In Ocfo-
Der and April following, and vendors
lien retained for the credit payments.
The cash and the first note were duly
paid. and suit was brought in 1892 10
enforce the lien for the payment Of the
other two notes. Ross6r answered that
the notes had been fully settled, and he
released from all liability exhibiting an
agreement by which complainant agreed
10 take back the said land, less 2l9 acres,
which had been divided up into town
lots. in full payment and satisfaction OF
said two notes. BY said agreement Ros-
ser covenanted 20 have the residue OF the
land. which had also been divided into |
town lots. conveyed 10 Banner by the |
MINNEAPOLIS Improvement Company, |
which had become the owner and Ban |
ner said that on the delivery Of the deed |
% him, he would receipt and deliver up |
tn notes 20 Rosser
lhis deed was rendered Banner, VINO |
refused TO receive II. in his bill he OBJ |
iected TO the validity OF the sreement |
an sundyy gromds-irst, becauss Rosser |
stood I'm a confidential rela' lu to him. |
Stated briefly, there was boom town |
I'm prospect. aad the effect Of syeral pre-
Iscus conyeyances of the Land TO Rosser |
as president Of improvement companies /
70 sell lots and pay over part OF pro-
ceeds 70 Banner did create re relation
of principal and agent between them.
These companies got into financial DIM
cultes and under these circumstances
and while these confidential relations be-
tween Rosser and Banner still subsisted,
the deed herein first referred TO was
made. 1t was prepared by Banners regu-
lar counsel, after full conference with
him and Rosser.. No complaint has been
made that il was not perfectly falr, the
free and voluntary act or Banner, ana IN
every respect binding. which is conclu-
siyely manifested by compliments suit
its validity, and seeking 70
enforce the vendors lien therein retained.
Il refers specifically 10 all previous con-
tracts and cOnveyances, and in consider
alton of the sale then made, sets aside,
lrnuls, and rescnds them.
Held: The effect OF this deed was 10
terminate the past confidential relations
between the parties, and TO create the new
relation OF creditor and debtor.
2 When the contract Of 1891 was made,
whereby Banner agreed 20 purchase and
AXE back the unsold portion Of the land
n satisfaction Of the two notes for Ej,eOO
zach, the relation of principal and agent
rad been wholly dissolved for eighteen
months the parties were no longer sub
ects 70 it's influences; their transactions
lad ceased 10 be regarded by equity with
he suspicion that attaches 10 the 2ur-
,hase by the agent OF the property or
lis principals 1t follows that the contract
) TO b.e treated as a transaction between
NY other creditor and debtor.
The further objection is that the agree
nent was uncomfortable, on the ground
hat RossoY was solvent, ana the notes
ould have been made out of him, and
hat Banner agreed TO surrender them
or the residue OF the land, which had
cen rendered comparatively valueless by
eing cut Up into streets, &c. In con
iderlng the objection, it cannot be over
,olted that the whole scheme was specu
rive. in which both Banner and Rosser .
neaged fully conscious Of its risks, which !
bev were willing 10 incur for the pros
Get Of great gains. The scheme failed, ,
he land company was in great straits
here was doubt as to the efficacy Of his
endors lien, and grave doubt whether ,
a could make the notes out OF Rosser
lie decided TO accept the offer TO convey
ack-the unsold land If he would release
AZ notes Whether wisely or unwisely, !
IA agreement, which he had the capacity |
, make. and which was his own yolun-
10 INN. q HalI