Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-10-19
COURT DECISIONS.
DIGESTED BY W. B. MARTIN
EXCLUSIVELY FOR
viRcINlAN- PILOT.
Notes Of Cases Recently Decide1
Which Are of Interest to
Our People.
L1TcHFIELD v. PRESTON.

LITCHFIELD ". PRESTON.
supreme Court of Appeals of Virginia.
september 13, 1900.
WHEN A TRACT OF LAND IS SUB
JECT TO A LIEN AND A PARTY
BUYS A PART OF IT AND AS
sOMES THE LIEN. THAT PART
FIRST SOLD BECOMES PRIMARI-
LY LIABLE FOR THE WHOLE
LIEN.
If a BANK BUYS LAND IN VIO-
LAT1OA OF CODE SECTION 1163,
THE LAW IMPOSES NO FOR
FIXTURE. BUT THE STATE MAY
PROCEED TO vACATE IT'S CHAR
TER.
r. c. Hamilton being the owner Of
tract of land in Washington county,
subject to vendors lien in favor Of
MS Srantor, Mrs. Catherine A. Preston
sold and conveyed by deed OF May -
1881, an undivided three-fourths part
thereof to the appellant, A. Il. Litch-
held and others: Litchiield subsequent
ly acquiring from his co-purchasers
the whole of said three fourths.
BY deed dated January 2, 1898, r. C.
Hamilton sold and conveyed his re-
naming one-fourth interest in the
Ianu to the Exchange and Deposit
OF september, 1894, the bank recon-
veyed said one fourth interest to II.
4. Hamilton in consideration OF So. $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 !. 1897. to S9.37S:67 The entire
tract was sold under decree of court,
the appellant becoming the purchaser
at Sl4.11G.25. This sale was confirmed
and commissioner 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 y. Preston, and TO pay
the residue OF said threc-fourts to the
appellant. The commissioner was fur
Their directed to apply the proceeds of
the remaining one-fourth. after pay
Ing costs, to the satisfaction of certain
liens against r. G.. Hamilton having
priority over the vendors lien in favor
or the Exchange and Deposit Bank
and to pay the residue thereof to the
bank.
The court says:
The ground of objection urged by the
appellant to this decree is that his
ee-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 remaining ono-fourth reserved
by Hamilton and subsequently convey
ed to the bank. 1t is commended that
the rule requiring land to be subjected
In the inverse 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 payment OF the
Preston lien, and the three fourts in
tcrest bought by appellant held sec
Ondarily liable for that lien.
At the time that Hamilton conveyed
the one-fourth interest 10 the EN-
change and Deposit Bank his deed to
appellant and Others dated May %
1891. was duly recorded. and contained
the following provision with respect
TO the unpaid purchase money due to
Hamilton's srantor: 1T is hereby
agreed and understood that n sum of
said deferred payments equal to the
amount of the balance due by r.. G.
Hamilton to Catherine a. Preston for
said tract of land is not to be paid
until said balance of purchase money
to said Catherine y. Preston, is paid.
and that the same is to be paid out of
said deferred payments
The general rule is that when part
OF Il tract OF land. subject to lien is
conveyed, the residue is primarily liza
BILE for the whole debt. An exception
to the rule, however. as well estab-
lished as the rule itself, is that where
the purchaser OF Such part assumes
the payment of the outstanding lien.
then the part first sold becomes pri-
mariy liable for the whole debt
1t may fairly be assumed that the
bank was acting within the scope of it's
powers. But If the bank bought the
lard outright and in violation of sec
ton 1853. appellant could derive no
advantage from that circumstance.
The law imposes no forfeiture for it's
violation. and the only effect of its
transgression. in the respect mention
ed, would be to subject the bank to
proceedings in behalf of the State to
vacate it's charter Affirmed.