Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-09-07
COURT DECISIONS.
DIGESTED BY w. 3. MARTIN
EXCLUSIVELY FOR
vlRcINiAN-PILoT.
Notes of Cases Recently decided
Which Are of Interest to
Our People.
N. NJ. II. & L. Asso. v. BLAIR.

N. NJ. u. & L. ASSO. v. BLAIR.
Supreme Court of Appeals Of Virginia
July 5, 1900.
EQUITY WILL NOT RELIEVE FOR
FRAUD OR MISTAKE UNLESS
THE PARTY ASKING RELIEF
ACTED PROMPTLY UPON THE
DISCOVERY OF THE FRAUD or
MISTAKE. ESPECIALLY IF
THERE HAS BEEN y CHANGE
OF CIRCUMSTANCES ARISING
FROM THIS DELAY
THE RELEASE OF A DEED OF
TRUST WHICH TIE PURCHASER
FROM ~ GRANTEE OF LAND HAD
ASSUMED AND GIVEN a TRUST
TO SECURE, RELEASES SAID
SECOND DEED OF TRUST.
ONLY PURCHASERS WITHOUT
NOTICE CAN TAKE ADVANTAGE
OF A FAILURE TO RECORD A
DEED.
The court says:
In nccordancc With many previous
decisions by this court. it is said in
inc recent case of Hurst V. Miller: "A
party who intends to repudiate a con
tract on the ground of fraud, should
DO SO as soon rs he discovers the
: fraud; for If, after the discovery OF
the fraud, he treats the contract as
subsisting contract, or If. in the in
tefNal whilst he Is celebrating, an in
nocent third party has acquired an in
tefeSt in the property, or IT, in conse-
pucnce of his delay the position even
Oh the wrong doer is affected, he will
be deemed to have waived his right of
reputation. And whenever al party to
a contract has u right to elect whether
he Will avoid IT, his election may he
manifested by acts as we'll as words
ana when once made, is final, and can
not be retracted.'
1t further appears that the sitiln-
ton and circumstances of the parties
to the alleged fraudulent release have
materially changed during the long
period of inaction and acquiescencc by
Watts. May M. Simmons. and Rush
U. Derr, the only two persons who
could meet and explain the charge of
fraud now made. are dead. The prop
erty has deprecated 10 less than one
third of its former value, and Mrs
simmons. the debtor of appellee. died
lnsoivent. The rule is general that
where there has been change of cir
cumstances or relations which would
render either an execution or rescis-
sion OF a contract a hardship to the
defendant, and this change grows out
or an uneNcused delay on the part of
together Twill constitute a sufficient
ground for denying equitable relief
The appellee can occupy no better
position than her assignor 1nasmuch.
therefore. as j. NJ: Watts Is cstopped
by reason of his laches and acuuics-
cence to impeach the validity of the
release OF June 90. 1891. made by him.
his assignee is also denied the right
10 call that transaction In question.
The contention that ]. M. Watts Is
entitled TO the hnnaGt nf he
burne deed OF trust dated March %,
1891, is not tenable. The cause relied
on for this position has been already
quoted. 1t is clear that the parties
TO that deed were not securing Watts.
he already had deed OF trust upon
the same property. In his purchase.
Fishburne had assumed the Watts
DEBT and the reference to 1t in the trust
deed of March. 1891, was merely to
recognize the assumption of the same
debt by Mrs. Simmons. and to protect
Fishburne IN the event that he should
be called upon to discharge the Watts
lien, before Mrs. Simmons had full
iiiled her obligation to pay the same
In releasing the lien of his own deed
of trust Watts stated of record that
the amount secured thereby was salts
ned. The debt was at that time owned
by Watts and was in his possession
and when he marked 1t satisfied. II
was also discharged as to Fishburne;
anu tHc uceu OL trust taken Tor his
possession was satisfied as to such debt
as effectually as If the endorsement
of satisfaction had been made thereon.
1T IS further commended that the deed
or trust in favor of the appellant as
ISOLATION, was acknowledged before
Rush U. Derr the attorney for the as
ISOLATION, and was therefore not prop
erly recorded; that not being properly
recorded the deed OF trust securing
appellee. though subsequent in time,
and subsequent in recordation, had be-
come by operation of law a first lien
upon the premises. 1t is not necessary
to express an opinion as to the validity
OF this acknowledgment. One object
OF recordation is to give notice. Under
the statute, only purchasers without
notice can take Advantage of a fail
ure to record. In this case. it album
dainty appears that Watts had notice
pcllant. and hence, If the acknowledg,
ment were invalid. it could not affect
the right of priority between the