The times. [volume] (Richmond, Va.) 1890-1903, 1900-09-16

husband, is liable to be defeated by every
Fsubs.sting claim or incumbrance existing
| before the inception of her right and which
would have defeated the husbands seiSin.
] If a man before marriage enters into
| a contract for the sale of land, upon GER
! tain terms and conditions, andAthe terms
| and conditions are performed his widow
| is not entitled to dover in the land, al
| though the husband dies without making
| a conveyance. This is upon the principle
| that the husband is regarded in equity as
| trustee for the purchaser.
| The same rule applies where the nus
band has bound himself to make a devise
| to another for valuable consideration,
| paid or furnished, and he has failed to do
! SO, at least in a case where the wife
had knowledge of the agreement before
marriage.
The decree of the Circuit Court dismiss
ing the complainants' bill is reversed and
! the cause remanded to be further pro-
ceeded with.
LAND TRANSFER
| A. T.. Litchfield VS.. c. a. Preston ct
ais. From the Circuit Court OF Wash
ington county. Opinion delivered by
Judge Harrison. Affirmed.
r. G. Hamilton being the owner of a
| tract of land in Washington county,
| subject to a vedor's lien in favor of his
1 SIdulol, .SdtEel me 1tStCll, Sol1
and conveyed by deed OF May I'D. 1851,
an undivided three-fourths part thereof
to the appellant, A. 7. Litchfield and
other; Litchfeld subsequently acquiring
from his co-purchasers the whole of said
| three fourths.
BY deed dated. January I'd, 1893, r. c..
Hamilton sold and conveyed his remain
| ing one-fourth interest in the land to
| the Exchange and Deposit Bank of Abing
Ioy, nd Cay,fa her
1884, the bank reconveyed said one-fourth
| interest to R. C. Hamilton in considera-
ton of $3.50, reserving vendors lien
to secure that sum.
After these transactions this suit was
brought by Catherine A. Preston to have
satisfied her VENDORS lien upon the
whole tract, amounting, as of March LIST,
1897, to S9,37S.67. The entire tract was
sold under decree of court, the appellant
becoming the purchaser at $14,116.25-
This sale was confirmed and commits
:sioner directed to apply, after paying the
costs, three-fourths of the proceeds, so
far as necessary, to the payment of the
vendors lien due to Catherine A. Pres
ton, and to pay the residue of said three
fourths to the appellant The commits
sioner was further directed to apply the
proceeds of the remaining one-fourth,
after paying costs, to the satisfaction OF
having priority over the vendors lien in
| favor of the Exchange and Deposit Bank
and to pay the residue thereof to the
bank.
The ground of objection urged by APP
pellent to this decree is that this three
fourths interest in the land is made
primarily liable for the payment OF the
vendors lien in favor of Mrs. Preston,
to the exclusion and release of the re-
int aI I,,- II
ton and subsequently conveyed to til:
bank. It Is contended that the rule re-
quiring land to be subjected in the in
verse order of alienation should govern,
and that the proceeds of the one-fourth
interest held by Hamilton, being the last
sold, should be first applied to the pay
ment of the Preston lien, and the three
fourths interest bought by appellant held
secondarily liable for that lien.
AT the time that Hamilton conveyed
the one-fourth interest to the Exchange
and Deposit Bank. his deed to appellant
and Others dated May I'D, 1891, was
duly recorded. and contained the follow
ing provision with respect to the unpaid
purchase money due to Hamilton's grant
or: ''It is hereby agreed and understood
that a. sum of said deferred payments
equal to the amount of the balance due
by r. c. Hamilton TO Catherine A. Pres
Ton Sd1Q tract Ol Is llOt ~ NC
paid until said balance OF purchase
money to said Catherine A. Preston is I
paid, and that the same is to be paid
out of said deferred payments"
The general rule is (says the COURT
that when part of a tract of land sub
ject to lien is conveyed, the residue is
primarily liable for the whole debt An
exception to the rule, however, as well
established as the rule itself. is, that
where the purchase of such part assumes
the payment of the outstanding lien, then
the part first sold becomes primarily liza
bic for the whole debt
Says the court:
No particular form of words is neces-
sary TO Great a binding assumption. It
is. however, unnecessary 10 decide
whether or not there was an assumption
of the Preston lier by appellant which
bound him personally; for If we assume
that the agreement in the deed of May
I'D, 1881. was not such an assumpsit
of the Preston lien as would make the
grantees in that deed personally liable
over and above the funds in their hands
going to r. c. Hamilton, the fact remains
that the agreement did set apart, in the
hand of the appellant a sufficient amount |
OF the purchase money to satisfy the |
Preston lien, and it was his duty TO see |
that 1t was properly applied.
The contention that the agreement in |
the deed of May 2sd. 1891. was for ao-
pellant's protection only, and that it was |
a mere memorandum between Hamilton
and his vendee, is not sustained. !
The appellant suggests that the Ex- I
change and Deposit Bank did not buy |
the one-fouCth interest for the purpose
Of satisfying debt previously contracted |
IN the course of its dealings, as provided |
by section 1853 of the Code, and that if i
he land was acquired by the trustees of
the bank otherwise than as the lazy
orescribes, they cannot hold it, and If
hey have taken it to secureEa debt, then
I is subject to the liens against Hamtl-
on, and among them the Preston lien.
The court holds that this CUES ton. does
lot appear to have been raised In the
over court and that there is nothing
n the record throwing any light upon
he subject. Says the court, however,
IT may be fairly assumed that, In purz
hasing the one-fourth interest, the bank
70 SOMA