The times. [volume] (Richmond, Va.) 1890-1903, 1898-09-18
OPINIONS BY THE
SUPREME COURT.
Many Important Decisions Rendered
at Stanton thursday.
AS TO DOVER AND PRIORITY
Cases Involving Statute OF Frauds, Re
lease, Contracts. Ratification. spe-
clfic Performance, tncapax Doll,
and other Questions of Law.
AS TO DOVER AND PRIORITY

FfA"t|'"
anan. J. .,-.
Gatewood. trustee. conveyed land In lsO
10 Miles for 81 co. part cash, and cotem-
poraneous deed OF trust for credit pay
msnts The same year Upton, ST., agreed
with Niles for the purchase OF the lana
IL the same price ard went into pos
session. In 1872. Upton, ST., assigned an
hls right, title etc, In the properly ana
his agreement 90 purchase 70 Upton, Jr''
and. a little later, assigned him me bonus
executed by Miles and secured by INC
deed q trust. all Of which had been peid
bv him out Of the purchase money due
bv him to Miles. In December. 1877.
Miles and wife conveyed all their right,
title. etc. 20 Upton. Jr.. for S,5Zl. pald
by Upton Sr. IN 1915 Upton, Jr. convey
cd 10 Small bis interest In tho lana LOT
ts25. Small died In 1884. without ISSUE
and his heirs conveyed their interest IoI
g1Oo to his widow. who mas since mar
fted James. IN 1850 Upton, Jr, ana "lle
brought suit against James and wife 10
subject the property 10 the bonus VI
xfues secured by the deed Of trust the
hin alleging that Small had knowledge
OF the deed when he purchased ana IN
dertook and expressly agreed that 'he
propertv should be liable for the ocDt
secured by It. James and vile deinur-
red 10 the bin. Now comes In Mrs'
UPTON. ST.. by petition. claiming DOVER
An tho land which complainants denied
Court below held that Mrs Upton, 81,
was not entitled 20 dover and that Mrs.
1-ofon Jr. bv virtue OF the assignment
Of the bonds secured by the deed executed
nv Miles had a valid and subsistng zen
and directed sale Of property for its pay,
ment. -.
Ts Mrs UPTON. ST.. entitled 10 dover?
when her husband purchased he agreed
10 nay Miles 5000. In "a few months no
learned of the deed Of trust TO secure
the balance due by Miles on his purchase
ana OF certain judgments against Mics
docketed before Miles solo 10 MIN ne
was advised by counsel that 70 the cN-
tent that no paid off the debt secured by
the decd ne would have an interest IN
tho lard superior 20 the judgments put
that In so far as Miles had acquired an
interest In the land by paying the pur-
cbase price. II could be subjected TO the
payment OF the judgments
lie afterwards paio all tho bohos anu
several Of the judgments ana oeuucleu
the amounts 50 paid from the uIohase
nrice and paid the residue TO Miles, an
before his assignment 10 Upton, Jr.. OK
cent perhaps part of what he PAID Mics
which may have been paid AFTER ms
assignment 20 Upton, Jr, but Delore-
Miles and wife pursuant 10 assignment
convened the land to Upton. IT.
Hold ]. When Upton. ST.. paid the oonos
secured by the deed out Of money ne oWeo
Miles. and received credit therefor lhe
lien OF the deed was discharged. lie TOOK
no ASSIGNMENT OF the bonds or the deeu,
nor had any right TO an assignment Oh
either The debt secured by the deed was
Stuss, deht was paid out Of the proceeds
90 The money due Miles for the land'
ana discharged the lien as completely
os ,e linton. Sr. instead Of paying the
bonds had paid Miles and Niles had ap-
niied the money 10 their payment. Gayle
va wilson. 30 Graft. lSG; Brown VS. Lap
ham. ISL: Pom. 70. Jur. Secs. 49, TO
Rheuherd vs. McIain, IS y. j. bqr Is
OF course. II Miles creditors Who held
liens inferior 10 the deed, odt resting on
the land when Upton, ST. purchased H.
had subjected the land to payment OF
their liens. the lien Of the deed would DC
revived TO protect Upton ST., ana thoso
claiming under him to the extent that no
had paid tho bonds secured thereby out
a. me purchase money due BY him 10
Miles. But Upton ST., had no interest
whatever in these bonds. and he cannot
snake any use of them. nor OF the deeo
which secured them that could affect any
right OF dover his wife might have had
IN the land
2 Though a husband nay not have ac-
ouired the legal title 70 land, II ne mas
paid the entire purchase money ana mas
a perfect equity to compel conveyance
OF the legal title. his widow IS entitled
20 dover. whether 50 entitled where DE
has aliened before acquiring the lesal
title. or paying in fun 50 as 10 perfect
his equity. depends upon the construc-
ton OF Sec. 2l29 Of the COde-a question
not decided by this court I'm any reported
case. IL was neither involved nor decided
I'm Rowton VS. RowtOn or Claiborne VS..
Henderson j. H. a Munf.. -, S22, where
II seems 20 have been assumed that the
husband must have a perfect equity 10
entitle his wife TO dover.
3. The manifest object or the statute
sn force since January /, 1851 az Hen.
Stats. 1850 was TO abolish the Common
Law rule that a widow could not be
endowed OF her husbands trust or equi-
table estate. and TO confer upon her the
same rights In such estate as In his legal
estate Minors Inst, III; ]. LomaX
Dig. m. p. pa
Did Upton. ST.. have such a bcnehcial
interest when he sold or assigned TO
Upton, Jr that II he had then held the
legal title. subject 10 the lien for credit
payment. his widow would have been
entitled TO dover IN IL in the hands Of his
allenCc. subject 70 that lien!
The common methods OF securing credit
payments IS for the vendor 10 retain a
vendors lien or 20 retain the title tin
paid In either case the vendee's widow
would be entitled 10 dover subject TO the
lien.
4 A husband who enters into an agree
ment % purchase land takes possession
ana pays part OF the price. S. benehcially
seized 10 the extent that he has paid.
though he has not acquired the legal title
and his widow is entitled 20 dover subject
20 the lien FOR the unpaid purchase price.
whether ne die possessed of the land
or has aliened II during coventure without
her legal concurrence. Therefore. Mrs. Up
town. Sr, has dover in the land and. in
Gsmuch as the unpaid purchase money
due thereon was paid by her husband
after alienation 70 Upton. Jr., and the
lien thereby removed she is entitled to
dover I'm the whole land subject 20 Sec
:zls Of the Code.
The court is equally divided as TO the
right OF Mrs Upton, Jr., 10 subject the
residue Of The land 10 the claim asserted
In the bill
PLANS OF CONTRACT.
Peoples b. and l.. and S. Association
vs. Tinsiey Reversed Opinion by Buch-
anan. J.
There were two questions raised IN this
case, one o. usury by the appellee. the
other an exception TO the account OF the
commissioner by the appellant
The question OF usury Is disposed OF by
Nickcls ys. Peoples Il. l.. and S. Associa-
ton. aS Va. $50. and Ware Va BANKERS