The times. [volume] (Richmond, Va.) 1890-1903, 1900-07-01

the plaintiff was entitled to the title deco,
ana the answer of the defendant denied
this agreement The opinion holds ina,
,ha Circuit Court Of Wise county erred
in sustaining an exception to this answer
on the ground of insutiiciency, and thal
the cause must be renlanded Tor iurtileI
proceedings upon that point
FRY VS.. Showers Circuit Court Of Bland
county. Opinion by Judge Harrison. he-
verseG.
In this case what has long been known
as The open question in eJectment law
was directly decided, and the court he'd
10. T,hern a senior pateutee settles upon
any portion of his land claiming ute 10
t},n Lyhc1e whether inside or outside OF
the irterlock. before the junior patentee
has settled upon any part Of the iniefioch,
tina senior patentee is III possession to the
extent of his grant and Il subsequent en-
try Of the junior patentee upon Nhe III
ter,ocE only GUSTS the senior paleatee 70
the extent OF the land actually IN me
occupancy OF tho junior patenree by resi-
doncr Improvement, cultivation or other
open, notorious and hapituaI acis OIL
Tb. opinion further holds that where a
new trial is asked for since these mo-
fiona ara addressed to tho judicial discre-
ton of the court, it may impose terms up
on the party in whose favor the verdict
was found, ana that an action OF eJectmeh1
is no exception to this principe In ms
narticular the opinion disapproves me
r,1Ie announced in Shif,ett vs.. Dowell,
% Va 745 which he'd that an action OF
eiectmcn! was an exception.
Tha cause is remanded with directions
Ia set the verdict aside and grant new
trial unless the plaintiff will release on
tina record by proper description that por-
ton OF the land to which the defendant IS
entitled
Virginia & Tennessee Coal and ron Co.
VS.. McClelland. From the Circuit Court
OF Wise county. Affirmed. Opinion by
Harrison, j.
NJ u. Mcie,ani, a householder and
married man and head of a family claim
cd the benefit of the homestead exemption
nv filing and recording his deed. lie after
wards conveyed the land which ha had
50 set apart Ia the granior Of the appel
lam company without his wife uniting N
the deed. Subsequently he and his wife
filed 2 bill in the Circuit Court OF Wise
county asking to have the SAID deed set
aside llpon the ground that ii was VOID
un6er section 1854 Of the Code. which
proyides that ''tha real estate set apart as
3 homestead shall not DO mOrtgased. en-
numbered or aliened by the householder, II
a married man, except by the joint decd
Of himself and wife. Appellant maintain
ed that this statute was unconstitutional
because contrary to tho express language
OF the Constitution and contrary TO the in
tent of its trainers, the argument being
that the statute puts a check upon the
free alienation of the homestead and there
BY mpaira the benefits Intended to be Sc
cured by the Constitution.
The opinion clearly shows that the stat
utd was fully within the broad power Civ
en- to tho Legislature by the Constitution
with reference to homestead exemption
and constitutes no impairment of the
housshelder's rights; nor is il contrary to
tha intention OF the trainers of the Con-
stitUtioh as carried into section S64i of the
Code, which permits householder. though
married, TO waive the benefit OF his eX-
emption by his sole act, since there is a
difference between waving the exemption
as source OF credit and an absolute
alienation OF the property. Though the
statute does not expressly inyalidate con-
veyances made by the husband alone, il is
held 10 have thar effect, since any other
construction would render it nugatory, and
the Constitution provides tina. its provis-
ions relative to homestead exemptions shall
bs construed literally to the end that all
the intents thereof may ba perfectly and
fully carried out.