Volume 9 — Grattan's Virginia Reports

<p>This was a proceeding in the Circuit court of Jackson county.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The case is stated in the opinions of Lee and Moncure, Js.</p>

This was a proceeding' upon a caveat entered in the Circuit court of Carroll county, by George Walton against the issuing of a patent to Bielden G. Hale for a tract of land in that county. The facts are stated in the opinion of Judge Allen. There was a judgment in favor of Hale; whereupon Walton applied to this court for a supersedeas, which was allowed.

This was an action of ejectment in the Circuit court of Wood county, brought by the heirs of John B. Creel against Peyton Butcher. On the trial the jury found a special verdict, on which the court rendered a judgment for the plaintiffs; and thereupon, Butcher applied to this court for a supersedeas, which was awarded. The facts of the case are stated by Judge Samuel, in his opinion.

This was a suit in equity instituted in November 1842, in the Circuit court of Wythe county, by John Sexton against David Sexton. Held: further, that the plaintiff was entitled to relief to the extent of one moiety of the indebtedness of the partnership of D. & J. Sexton beyond the sum of 3000 dollars.

<p>Landlord and Tenant — Holding Over after Term Expires — Conveyances by Tenant of Part of Premises —Case at Bar. — T leases laud to E by deed which is executed by E, and he thereby acknowledges that he is in possession under the lease, and covenants to restore the possession at the end of the term. E holds over after the term expires for seven years; and whilst in possession executes a deed by which he conveys a part of the leased premises to A in fee simple, with a covenant of warranty, and puts A in possession and disclaims to hold under T. T then institutes a proceeding of unlawful detainer against E and A. Held:</p> <p>1st. Same — Same—Same—Unlawful Detainer — Liability of Tenant — That E is responsible to T for the whole of the leased premises, though at the time of the institution of the proceeding A was in possession of a part of the land.</p> <p>2d. Same — Same—Same—Same—Recovery,—That T’s recovery is not to be confined to the land in the actual occupancy of E and A, but he is entitled to recover all the land demised; and he may show by parol testimony what constituted the demised premises.</p> <p>3d. Same — Same—Same—Same—Parties.— That E and A were properly joined in this proceeding, though they did not hold the land jointly, but each held a part of the land in severalty; and if only one of them held any part of the land, T is entitled to a judgment against him, though there should be a judgment for the other.</p> <p>4th. Same — Same—Same—Same.—Though if A was in actual possession of no part of the land claimed by the warrant at the time it issued, he would be entitled to a verdict in his favor, yet E, the lessee, would he responsible to T, and there should be a judgment against him, though at the time of the issue of the warrant he was not in the actual possession and occupancy of any part of the land.</p> <p>5th. Same — Alienee of Tenant — Notice to Quit — Case at Bar. — A having entered on the land, claiming in fee under the conveyance from E, was not entitled to six months’ notice to quit from T, though he had not expressly disclaimed to hold under the lease from T to E. And if he held expressly as under tenant of E, he would not be entitled to the notice. When T had determined the tenancy of E by six months’ notice to quit, or E had disclaimed to hold as tenant, and thereby deprived himself of the right to notice, it was competent for T to proceed at once to oust both E and A.</p> <p>6th, Same — Unlawful Detainer — Description of Land —Case at Bar —The lease being for a certain quantity of land, situate as therein described, and E having executed it under his hand *and seal, and thereby recognized the description and boundaries therein specified, and that he then held the same in possession; and the warrant being for the precise tenement described in the lease, neither E nor A claiming under him, can be entertained, to deny that the tenement had its boundaries, or that they were within them.</p> <p>7th, Same — Same—Evidence of Title in Lessee, — E and A will not be permitted to introduce evidence of title to the land embraced in the lease, either in themselves or others; nor will they be permitted to introduce these title papers for the purpose of showing that they had not possession of the land claimed by T.</p> <p>8th. Same — Same—Description of Premises.* — T, if entitled to recover, may recover according to the description of the land in the warrant or in the lease, and he must then point out at his peril, to the sheriff, the premises of which he is to give T possession; and if he takes more than he has recovered in the action, the court will interfere in a summary way and compel him to make restitution.</p> <p>9th. Same — 'Tenant Holding Over — Recognition by Landlord — Effect† — E haying entered under the lease, and held over after the term expired, if T did any act recognizing him still as his tenant, E became thereby tenant from year to year, upon the conditions of the original lease. If T did not recognize the continued tenancy, E was a tenant at sufferance, and not entitled to notice to quit.</p> <p>10th. Same — Same—When Becomes Adverse.‡ — E still being in as tenant after the term has expired, he continues to hold as such as long as he remains in possession, unless he disclaims to hold as such, and asserts a right adverse to T; and such disclaimer and assertion of adverse right are brought home to the knowledge of T by a full notice by E, of his disclaimer and assertion of title. And qucere; If he must not surrender the possession to T.</p> <p>nth. Same — Same—Liability of Alienee of Lessee.— A, by entering upon part of the land as purchaser from E, thereby became subject to the same relations held by E towards his lessor T, and neither could set up an adverse title, unless he showed he had restored the possession to T, or had disclaimed and held adversely, with full notice to T for the periods of limitation prescribed by the statutes.</p> <p>12th. Same — Lessee Estopped to Deny Possession of Land Held.§ — E and A could no more deny that the possession under which E entered was the possession of T, than they could controvert T’s title.</p>

This is an appeal from a decree of the Circuit court of Russell county, made in a cause in which John Counts and others, heirs and legatees of Joseph McRej’nolds deceased, were plaintiffs, and Isaac and Rebecca McReynolds were defendants. The facts are stated in the opinion of Judge Samuels.

This was an action of debt in the Circuit court of Botetourt county, brought by William Kyle against John M. Price.

This was a suit by the executors of Archibald Stuart deceased, against St. Clair Abbott and William Brown, to subject a tract of land in the possession of Brown for a balance of purchase money due from Abbott to Stuart’s executors. In June 1823, Archibald Stuart sold to Abbott a tract of land then in the county of Monroe, but now in the county of Mercer, for 300 dollars, retaining the title.

<p>Judgment — Equitable Relief* — Case at Bar. — Upon a scire facias against special bail, lie obtained a bail piece, arrested bis principal, surrendered bim to tbe jailor, and took tbe jailor’s receipt for bis body, and gave notice thereof to tbe attorney of tbe plaintiffs, they not residing in tbe county. Notwithstanding all this, there was an office judgment upon tbe scire facias against the bail, and be not appearing to defend tbe case at tbe next term, tbe office judgment was confirmed. Equity will not relieve tbe bail.</p>

This was an application to the County court of Grayson, by Drury Senter and Wilbourn Ross, to discontinue a public road. Robert Pugh entered himself a defendant, and opposed the motion. The jury appointed to view the road returned a verdict against the discontinuance of it. But the County court, upon hearing the evidence, ordered that the road should be discontinued.

<p>Contract with Sheriff to Survey Land — Assumption of Obligation by Successor-Case at Bar.* — A declaration alleges that J. a former surveyor of Grayson county, in consideration of a certain sum named, paid him by the plaintiff, had promised to furnish a land warrant and to enter and survey for plaintiff a certain piece of vacant land in Grayson county, with a view to enable plaintiff to obtain a grant for the same. That J wholly failed to make the entry; and that defendant having become the successor of J in the office of surveyor of Grayson county, in consideration of the promises of J, and of the payment to him by the plaintiff, and being required by plaintiff to enter said piece of land for plaintiff, agreed that he would furnish the necessary warrant for the purpose, and would enter the same in plaintiff's name in his office, and in due time would survey the same in order that plaintiff might obtain a grant; and that plaintiff agreed to pay the defendant his fees for the said survey whenever performed. It is then alleged that defendant failed to furnish a land warrant and enter said land for and in the name of the plaintiff, but had in fact entered and surveyed it for another person, to whom a patent had issued thereon from the commonwealth. Upon demurrer. Held:</p> <p>ist. Same — Same — Consideration — Case at Bar.— That considering this as a count in assumpsit upon a special contract between the plaintiff and defendant, it alleges no sufficient consideration moving from plaintiff to defendant, to ground and support the promise and undertaking imputed to him.</p> <p>2d. Practice — Misbehavior in Office — Failure to Set Out Any Act of Omission — Case at Bar. — If it is to be considered a count in case to recover damages against the defendant for misbehavior or neglect of duty in his office of surveyor of Grayson county, then it does not set out any act, or the omission of any duty, on the part of the defendant as surveyor, under such circumstances as would render him liable in damages to the plaintiff in this action.</p>

<p>Contract to Build Courthouse — Assignment—Interest of Original Contractor — Case at Bar. — G makes a contract with a County court for building a courthouse, and by the terms of the contract he is to give security for its performance. Owing to his insolvency he is not able to give the security, but with the consent of the County court entered of record, he assigns the contract to his son who gives the security; the persons becoming sureties for the son being unwilling to become sureties of G. The son then sells the contract for $1000 Held: C had at no time such an interest in the contract as could be subjected to the satisfaction of his creditors.</p>

In 1835 William A. Hanger died, leaving a widow Rebecca, and an infant son Robertson Hanger. At the May term of the County court of Augusta the widow, Rebecca Hanger, and Henry Imboden qualified as administratrix and administrator of William A. Hanger, and executed a joint bond with John Sillings and two others as their sureties. In 1839 John Bumgardner married the widow Rebecca; and in the same year qualified as guardian of Robertson Hanger.

<p>The case is stated in the opinion of Judge Moncure.'</p>

This was a suit instituted in March 1847, in the Circuit court of Augusta county, by Henry Eidson against Walter H. Fontaine, administrator with the will annexed of Catharine M. Eidson, the wife of the plaintiff, and William Fontaine as his surety. The bill charged that in 1834, the plaintiff being about to be married to Catharine M. Fontaine, a marriage contract was entered into, by which she was authorized to dispose of her property by her last will.

The case is fully stated in the opinion of Judge Lee, and it would be both improper and useless to repeat the statement.

This was a motion in the Circuit court of Grayson county by the administratrix of Jonathan Thomas deceased, late high sheriff of Grayson county, against Samuel Cox, jr., late deputy sheriff for the said Thomas, and eleven others, as obligors in a bond executed by them to Jonathan Thomas. The notice was addressed to these parties, the first as late deputy sheriff, and the others as obligors in a bond executed to Thomas.

*This was a proceeding in the same court, and between the same parties, similar to .the last preceding case. The notice was for the default of the deputy sheriff, .Samuel Cox, jr., in failing to pay over the money received by him upon an execution which issued from the clerk’s office of the County court of Grayson, in the name of William Bourn’s executor against Charles Bolt and another.

This was a suit in equity, instituted in the Circuit court of Scott county by Noah and Moses Greer, sons of Shadrach Greer, to set aside two deeds made by their father a short time before his death, by which he conveyed his estate, which he had not previously given to his children, to his son Isaac Greer. The grounds on which it was sought to set aside the deeds, were, incapacity on the part of the grantor, and fraudulent practices on the part of Isaac Greer.

On the 20th December 1825, George Hughart purchased of Daniel Boardman a certain tract of land lying in what was then a part of Greenbrier county, but is now a part of Fayette county', for the consideration of 200 dollars, of which one-fourth was paid, and three bonds, for 50 dollars each, were executed.

This was a suit in the Circuit court of Greenbrier, instituted by Josiah-J. Walkup and Ann Eliza his wife, Sarah Jane Elliott and Elizabeth M. Ellio.tt, the last being an infant suing by her guardian and next friend J. J. Walkup, against the administrators with the will annexed and heirs of John Armstrong, who had been the guardian of the female plaintiffs, for the settlement of his guardian accounts. ’ The-accounts were referred to a commissioner, who in 1850 made a report,…

This was a bill in the Circuit court of Kanawha, by Robert E. Hudson, to enjoin two judgments recovered against himself and two others as his sureties, by Daniel H. Kline. The bill charged that Kline had sued the plaintiff and his sureties, in two bonds executed by them to him, one for 800 dollars and the other for 1200 dollars.

'This was a bill filed in the Circuit court of Hardy county by Valentine Simmons against Adam Bishop, William Seymour and others, to subject a piece of ground in the town of Morefield, sold by Simmons to Bishop, to satisfy a balance of the purchase money.

This was a bill filed in September 1835, in the Circuit court of Wood county, by Richard H. Henderson, executor of Alexander Henderson of Dumfries, against George W. Henderson and the administrator of Alexander Henderson, late of Wood countj’.

This was a suit instituted in May 1845, in the Circuit court'of Wood bounty by John Stephenson against Thomas and Franklin Taverner. The bill charges that Charles R. Baldwin, late of the county of Wood, died in 1839. That he was indebted by account to Stephenson,' Neale & Co., of which firm the plaintiff was a *partner, for several hundred dollars.

In October 1840 Martin Hagy obtained from the judge of the Circuit court of Washington county an injunction to two judgments recovered against him in that court, one by Lewis Smith as assignee of… Held: and that he was ready and willing to perform anything that remained unperformed on his part, if the title to the one hundred and forty-three and a third acres should be secured to him.

William Ralston the elder died about 1810 or 1811, leaving- a widow and eight children. By his will he gave to his wife, for her life, his land on Mossy creek in the county of Augusta; and he gave the same land at her death to William, David and Elizabeth Ralston, subject to certain legacies to his other children, with remainder over upon their dying without issue, to his other children. The widow died in 1823.

This was a suit instituted in the Circuit court of Rockingham county, by George Hickle and Harriet his wife, who was Harriet Peale, and four others, children of Bernard Peale deceased, against Catharine Peale the widow, and Jonathan Peale administrator, and two other children of Bernard Peale.

David Niday, in November 1835, exhibited his bill in the Circuit Superior court of law and chancery for the county of Botetourt, against John M. Harvey & Co., George W. Wilson, trustee, and others, praying an injunction to the sale of real and personal property which had been conveyed by John Wood, one of the defendants, to Wilson in trust to secure a debt due from him to Harvey & Co., and which property was then advertised by the trustee for sale.

*These were cross caveats in the Circuit court of Norfolk county. The first was filed by Baugh and Seguine to the issue of a patent to Harper and Weston for a tract of 7429 acres, 2 roods and 12 perches of land lying in the Dismal Swamp in the county of Norfolk. The second was filed by Harper and Weston to the issue of a patent to Baugh and Seguine forc>6455 acres, 2 roods and 12 perches, part of the same land.

, This was an action of debt in the. Circuit court of the town of Petersburg, instituted by Montague Ward against Tyler and Hill as makers and. John Archer as endorser- of a negotiable note. The suit .-abated as to Tyler.by the return of the writ.

This was a bill filed in 1824 in the late Chancery court in Richmond, by jjevi Swain against a number of parties as subscribers to a scheme for building a church.

This was a suit in equity in the Circuit court of Orange county, by George Morris, against Tandy G. Morris, to set aside an award. In the progress of the cause, it was submitted to arbitration again, and the award was to be entered as the decree of the court. The award was made and there was a decree upon it; Erom which decree George Morris applied to this court for an appeal, which was allowed. The case is fully stated in the opinion of Judge Allen.

This was an action of debt in the Circuit court of Bynchburg-, instituted by the administrator of John Perkins against the administratrix of Robert Hawkins. The case is fully stated in the opinion of Moncure, J. *There was a verdict and judgment for the defendant: And Perkins’ administrator applied to this court for a supersedeas, which was allowed.

By deed bearing date the 20th of September 1821, Nicholas Harrison of the town of Lynchburg, conveyed to Robert L. Coleman and Thomas A. Holcombe a large property, consisting of lands, slaves and other personal property, and choses in action, in trust, first to pay certain debts therein specified, due to Boyd Miller, pllis & Allen, Garland, Walton & Penn, and others. *And the deed then directs that the trustees “shall so dispose of the said property that no security in the…

*These were four actions of debt in the Circuit court of Hanover county, three of them by William Cunningham’s adm’r against George W. Bassett as adm’r of John Bassett deceased, and the fourth by the same plaintiff against George W. Bassett individually. And at the same time there were in the same court two actions of assumpsit by the same plaintiff against the same defendant. The facts of the cases are sufficiently stated by Judge Allen in his opinion.

This was an application by Daniel Ward, administrator de bonis non with the will annexed of Dr. George Yates deceased, in the alternative, either for commutation of five years’ full pay, or of half pay for life, for the services of said Yates as surgeon’s mate in the Virginia continental establishment during the revolutionary war.

This was an action of assumpsit in the Circuit court of Hanover county by John Thompson assignee of the Bank of the United States against Archibald Govan. The declaration contains two special counts, and the general counts for money lent, laid out and expended, and an account stated.

This was a suit instituted in thé Circuit court of Rappahannock county by Mrs. Almond before her marriage with her present husband, against Daniel Mason, as administrator de bonis non with the will annexed of William Porter deceased, arid as administrator of Sarah Porter, .the father and mother of the plaintiff, for an account and distribution of both estates.

Robert I. Smith in 1842 instituted a suit in the Superior court of chancery for the county of Henrico and city of Richmond against the committee of John Boyce, a lunatic, which upon the death of Boyce was revived against his administrator and heirs.

This was a suit in equity in the Circuit court of Sussex county by Jincey and others against Patrick H. Jones administrator with the will annexed of Mary Winfield deceased, George Field and John D. Rag-land, to assert their right to freedom. The plaintiffs had *been the slaves of Mary Winfield in her lifetime, and were emancipated by her will.

<p>i. Indictments — Counts for Larceny and Receiving Stolen Goods — Election of Prosecution — Case at Bar.* — An indictment contains several counts, one for larceny, others for receiving stolen goods knowing them to have been stolen, and others for aiding another person to conceal stolen goods knowing them to have been stolen. The charges in all the counts, however, relate to the same goods, which in different counts are laid to be the goods of different persons, or of a person unknown. Held : It is not a case in which the court should quash some of the counts, or compel the prosecution to elect on which count the prisoner shall be tried.</p> <p>2. Jurors - Not a Freeholder — Objection.—J t is a good objection to a juror in a case of felony that he is not a freeholder.</p> <p>3. Objection to Juror — improperly Overruled— Not Cured by Being Stricken Off by Prisoner. — If a prisoner's objection to a juror is improperly overruled, the error is not cured by the juror’s name being stricken off from the panel by the prisoner, or his not being drawn as one of the twelve who are to try the prisoner.</p>

John W. Rand was indicted for burglary and larceny in the Circuit court of Norfolk county.