Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-02-15
COURT DECISIONS.
Notes Of Important Gases Recently
Decided, Which are oflnterest
to Our People.
D1GESTED BY W. B. MARTIN.
for virglnian-Pnot.)
CARRIER VS.. SUTTON.
Supreme Court of Appeals OF Virginia,
November II, 1898.


CONTRACT TO SELL LAND WILL
NOT BE RESCINDED BECAUSE OF
INCUMBRANCES WHICH HAVE
BEEN REMOVED BEFORE DE-
CREE IN SUIT TO RESCIND-
CONTRACT OF SALE OF LOTS
ACCORDING TO PLAT NOT RE-
SCINDED BECAUSE STREETS ON
PLAT ABOLISHED BY SALE UN-
DER A SUBSEQUENT DEED OF
TRUST.
This was suit to rescind n contract
for sale of lots in the town of Luray,
and to recover back the amounts paid
on account of the purchase money. The
plaintiffs claimed that a good title to
the lots could not be made because
there were membranes on them. and
that the lots had been sold by plat on
which streets were laid out. which
streets were abolished by sale under
a deed of trust given by the seller. The
Court held that the contract should
be enforced. not rcscinded, and says:
The second ground OF objection alleged
tnat membranes upon the lots SOLD
appellants prevented appellee from
making good title is not tenable. The
deeds OF trust given upon its property
improvements
Company expressly reserve from their
operation the lots heretofore sold. and
1t further appears that said deeds OF
trust as well as all judgments
against the Valley Land and Improves
ment Company prior TO its deed To L.
NJ. Sutton the defendanD had been
paid and released before the date of
the decree complained of. There is no
ground for The contention that the In
N
OF incumbrance entitled appellants to n
rescission. for the reason that the lots
III question at the time suit was
brought had so deprecated as TO be of
little or no value; the contract of pur-
chase provided for the execution of n
deed upon the payment in full of the
purchase money. The last nstalment
of purchase money was not due untn
october 81 1891, so that the assignors
were not in position to call for n
deed until that date, and hence could
not nave been affected by any incum-
brance of the property prior to thar
time.
1t is contendcd that because some of
the streets and alleys embraced in the
pat OF the lands have been abolished
by sales under deeds or trust the
appellants are entitled to II rescission,
Tor the reason that they are thereby
deprived OF the use of these streets
and alleys. All lots previously sold
were expressly reserved from the oper-
alton of these deeds OF trust. and hence
the rights and privileges which apper-
tanned to the lots in question by virtue
oil the plat were not affected by said
deeds of trust, and appellants still have
the right TO assert their claims to the
use ana benefit of the streets and all
lcys in that portion OF the lands; sold
under the same. The streets and al
leys abolished by these sales in no wise
aflect the use and enjoyment of the
lois In question, and all the streets
ana alleys necessary to the completc
enjoyment OF said lots remain as laid
out on the plat. This city on paper ia
one oil the numerous speculative enter
prlses inauSurated about the time of
the transactions under considera ton
took place. The anticipated develop
ment utterly failed. and before the
purchase money for the lots in qucs-
ton was all due the whole scheme
ended in disaster, without fault OF the
appellee. and without prejudice to his
right TO recover the purchase money
appellants contracted to pay.
STATE VS.. PIERCE.
supreme Court of North Carolina,
December %, 1898.
INDICTMENT FOR BURNING GIN
HOUSE, THOUGH BAD UNDER
CODE SECTION 9S5. B-SECTION
G. Is GOOD UNDER SUBSECTION
2. AND THE SUBSECTION
CREATES AN OFFENCE, THOUGH
If DOES NOT STATE 1T \ FEEL
ONY-ABSENCE or DEFENDANT
FROM COURT ROOM DURING
PART OF CLOSING ARGUMENT
IN CASE NOT y CAPITAL ONE
NOT REVERSIBLE UNLESS HE
is CLEARLY PREJUDICED.
Pierce was indicted for burning gin
house and found guilty. lie moved in
arrest OF Judgment on the ground that
OF Code Section 9S5. sub section 9. as
amended The court says:
he objection would be we'll taken
II ms indictment was sustainable only
under sub section 6. But it is n valid
Indictment under Code Section aS5, sub
section :. The defendant. however, in
sists That subsection , does not create
an ofensc. because 1t merely prescribes
that every person convicted of the acts
therein described shall be imprisoned
IN the penitentiary not less than five,
nor more than ten years, and does not
expressly add that such person shall
be guilty of a felony. The objection is
without force. The doctrine is well set
tied that where the statute either
makes an act unlawful, or imposes IL
punishment for its commission, such
act becomes crime, without any ex-
press declaration that it shall be
crime. or of its grade. In the former
case it is a misdemeanor and in the
latter felony or a misdemeanor, or ac-
cording to the nature of the punish
ment."
During the argument there was
recess OF the court at noon and defen-