Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1898-07-17

Opsntons HANDED Down at Wythe
willie ON Tuesday Last.
Following are dieests OF opinions hand
I'd down by the Supreme Court Of Appeal
last Tuesday: The court adjourned to NICE
at Stanton the first week In September
Artrip VS.. Rasnake & son. &c. Affirmed
Opinion by cafdweiI. ].
The errors assigned are: ]. That the
wife was not competent 10 contract wher
she and her husband made and signed the
deed OF trust. 2. That a decree for a sale
OF tho lands Of the wife should not have
been entered.
Held: /. No attempt was made by APP
pcslant 10 sustain her defence by proof,
except on the issue of insanity. She had
never been adjudged a lonatic, and the
evidence adduced wholly failed 10 show q
general arrangement. whereby the burden
would be shifted to appellecs to show her
Illegal capacity 10 contract when the mort
gage was executed and delivered. II II
shows at any time an incapacity TO con-
tract. l Gr6enh Ev., section 81; Id, Sec
ton 81; FisEburne and wife vs.. Fergu-
sons heirs, 81 Va. iG-10s; Minor. GA.
The five persons present when she exc
cuted the deed all testify that appellant
had mental capacity TO contract and do
Important business at that time
Held: Evidence Of this character. those
present at the factum OF the deed, has
always been held 10 be OF far moro weight
and Importance than the opinion or Wit
nesses based upon the erratic conduct
and eccentricities Of the party OF whom
fhey speak. Beverly vs.. Walden, 20 Graft,
159; Mercer VS. Kelson. Id. 100
Under the second assignment, 1t is con-
tended that appellant and her husband
were partners. and. therefore, under sec
zion 22S of the Code, she had no power 10
contract with appellees binding her sepa-
tate estate for the stock OF goods; II not
partners. then the wife IS surety for the
husband. and as such her lands could not
pc sold until the property Of the principal
had been exhausted. and that before de-
free OF sale an account OF the property
pwned by the husband was necessary, and
that Il be sold first
Held: J. Appellant makes positive stateA
ment in her answer that she has had no
part or parcel in the profits OF the bust
ness. and acted only as salesman when
required by her husband 10 do so. This
nisposes OF fhe partnership contention.
2. Where no question OF priority OF
Hens is raised by answer or otherwise, 1t |
Us not error 10 decree a sale of land I'M |
Ger mortgage or deed Of trust, without a |
reference 10 a commissioner to report |
liens. Where there are conflicting claims |
10 priority Of payment out OF the proceeds |
of sale TO satisfy liens. the rule is other
wise. laege VS.. Bossieuxi 10 Graft, lO3.
When one Of the notes secured by the
deed fell due. part of II was paid, and
new note given for the balance by Artrip
and wife. 1t IS contended that this balance
ought not to have been included as Sc
cured by the deed.
Held: A mortgage or deed or trust re-
mains lien until the debt It was given
TO secure is satisfied. and is not affected
by the change of the note. or by giving a
different INSTRUMENT as evidence Of the
debt Simpson VS.. Bishop. &C.. 81 Va,
l9S; Jones on Mortgage. section 924
DUE PROCESS OF LAW.
Heth VS.. City of Radford. Reversed
Opinion by Rely, J.
The agreed facts were that, at the last |
assessment OF lands in the State for tax
alton, made in 1880 Heth's lands were
valued at S5,450. ann taxes were assessed
and paid accordingly; the lands were re-
assessed for city levies in 1892, under au-
hority OF the charter, and valued at s29.-
rs. Application was IL have the city
evies for 1929 abated. and that the |
axes be based on the general assessment |
# 1880. which was denied. The writ of err
or raises the question of validity Of sec
ion % OF the city charter This section ,
ontains no provision by which the owner
u ldnd may nave It's assessment review |
d and corrected If excessively assessed
y the board, nor is any provision made ,
Or rehearing by the board upon COM :
laint OF the owner nor for an appeal to :
NY other tribunal. The owner has no OPP
ortunity 10 appear and contest.
Held Imposing taxes or levies is a
liking OF property. The owner is entitled | /
} be heard before the charge is fully es- .
Iblished against him. If not afforded an | :
pportunity to be heard, the tax or levy is
nlawfully exacted: otherwise, he is de- 4
rived of his property without due pro- v
sss OF law, in violation Of the fourteenth | (
TO United States Constitu- I
on. Violet VS.. City of Alexandria, go
a., sol; New Orleans VS. Davidson, 95 u. q
9l Hager VS.. Reclamation District, B.
| Id. 70l. T
2. Chapter % OF the Code relates wholly | {,
the general assessment made every | :,
IN year, and affords no relief against q
'ecial assessments. Section Is OF the
larter, affording no provision TO contest | :
10 legality, justice and correctness of
lie assessment before 1t became final, is
constitutional and void. -
The city levies should have been based | -
the valuation under the general as ~
ssment of 1890 ~