The times. [volume] (Richmond, Va.) 1890-1903, 1898-01-21

lessee acquired perpetual interest III
the leased premises. Justifying him In
making permanent improvements and en-
ablng him TO enjoy the proceeds Of the
property enhanced from this and other
causes The lessons understood perfectly
that the lessees had no intention OF sur
rendering these valuable rights. worth
thousands of dollars. to avoid the pay
ment Of one years rent extraordinary
and the annual ground rent.
2. Mere default in payment at stipu-
lated time generally admits Of compensa-
ton. and hence time OF payment Is sell
dom treated as essential In contracts
touching real estate. IL is plain that Tune
was not OF the essence OF these con-
tracts.
There is no lack OF power in court OF
Equity 10 grant relief against failure to
perform punctually conditions precedent
when time is not OF the essence. and COM
psnsation can be made Story's Eq. Jur.
sec. 1915: / Lomax's Dig. p. 351. The
question 10 be considered is. has the party
asking for relief been guilty of gross
negligence or is the default relied on the
result of more negligence. When the
terms have not been strictly compiled
with or are incapable of being strictly
complied with. II there has not been gross
negligence In the party, and 1t Is con-
performed and compensation can be made
for noncompliance. In such cases, equity
will decree specific performance. The
doctrine of equity is not forfeiture but
compensation and only such decree VIII
DO entire justice. Story's Eq. sec. 10;
Lennon VS.. Napier, Sch. and LEI eA'
Banks VS. Haske. IS Md. 207; Worihington
VS.. Lee. 81 Nd. $50.
COVENANT RUNNING WITH THE
LAND.
Williams, etc. VS.. Tomlin. Affirmed.
Opinion by Judge Rely.
Syme sold land whence a ferry was os-
tablished i'm 1886. to Tomlin and wife. the
wife owning the adjoining tract upon
which was the present landing of the
ferry. Tomlin and wife conveyed To
Syme contemporaneously the roadway
TO the ferry upon both tracts of land. re-
serving "a passage, ferry free. In all
time coming, to them their heirs or as
signes and their and each Of their fami-
lies who shall be holders and proprietors
Of the two several tracts of land.
Held: The deed was for valuable con-
sidoratlon and constituted a valid and
forever binding contract between the
owners of the said land and the owners
of the ferry and all who claim through
or under them.
No question was raised till 1910 when
Tomlin, wishing 10 deliver his wheat
promptly. hired wagons to do so. Free
passage was refused them and the furth-
er contention was made that Tomlin had
forfeited the right TO cross free himself
because of his removal from King VIII
liam TO Hanover county. In the hti-
cation that resulted IL was determined
that Tomlin was entitled TO free ferryage
-. g.s-
hands. labOrers and property, though re-
siding in Hanover just as he was entitled
to it for his hired wagons while residing
at the same place. This decree was en-
tered in 1911. From that time till 1888,
the right Is declared therein had been ex-
ercised by the parties entitled. Then
free fCrriage was refused the tenant Of
the plaintiffs. who also resided in Han
over but rented the King William farm.
Held The decision and decree made in
that case is binding not only on the orr
ginal parties TO the deed and suit, but
also on all subsequent owners of the
said lands and ferry in privity with them.
Lemon VS.. Herbert. ~ Va $50.
GARNlSHMENT.
Virginia Fire and Marine Insurance
Company VS.. New York Caronsel Man
ufacturing Company. Reversed. Opn-
ion by Judge Rely.
Held: Defendant in error where he has
had a reasonable time TO require proper
bond 10 be given and in the event of
failure to move il dismiss the appeal. may
not wait before making such motion, UNI
Ill a new bond can be given or anoth-
err appeal allowed. Jackson's Admr. vs..
Henderson. 3 Leigh 1876: Acker VS.. A. +.
x X. Company, 81 Va. Gas; Orr VS.. Pen
nington. o. Va. 26s.
The Insurance company was sued in
North Carolina and also. by the same
creditor, in the Circuit Court OF Rich
mond. IL appeared in the North Caro-
lima Court and set forth the attachment
suit here and the garnishment against
it, and asked to Ice protected against the
recovery Of any part of the debt which
it might be adjudged to pay by the Vir-
ginia Court. under the garnishment The
Carolina Court gave judgment against
the company and the debt was paid. 10
then set forth these facts in the Court
here with a certified copy Of the record
and prayed a dismissal of the garnish-
ment. which the court refused to do.
Held: The garnishee was gultless of
any fraud or collision. 1t took all neces-
sary steps TO prevent recovery in Car
DINA. and made full disclosure of the
situation TO the court. endeavoring 10 OBJ
tain suspension OF all proceedings. but
the court holding that il had priority of
jurisdiction. refused to stay the suit and
gave judgment and allowed execution
upon II. The company having been
compelled. after full disclosure, 10 pay
the debt under the judgment of trbu-
nal having legal jurisdiction and adequate
power TO enforce its decision. had an in
disputable claim TO protection against
the second payment Of the debt. Clarity
vs.. Gigie $50 Mass 1Sf: Eddy VS.. O'Hara,
lS2, Id. Sc; Lancashire ms. Co., VS.. Cor
belts l6j III. 592
Townsend. &c, vs.. Outen, &c. Az
hrmed. Opinion by Judge Buchanan.
After the decision OF this court In Nye
We. Levitt, 81 Va, 40. the parties claiming
under Henry G. Levitt, filed their bin
10 divide the property in accordance with
the principles of that decision. The trial
court granted the relief sought. and APP
peal from that decree. The decree is
clearly right, and is affirmed.
PLEADlNGS.
Guarantee co. of North America VS.
First National Bank of Lynchburg. Re
Versed. Opinion by Judge Rely.
First assignment of error the refusal
of the trial court 10 remove the case TO
the Federal courf Tho chi, H.. A.