3. The deed delivered as an escrow in the proceedings of a court of
equity, administering trust funds, is not within the intendment of
that statute. Briscoe v. Ashby and als., 24 Gratt. 469, approved.
4. That deed, so delivered as an escrow, could not have been placed
on record until W. had become entitled to it by paying the cash
payment on 6th November, 1874, when all the purchase money,
except $419.59, was paid.
5. But as that balance was paid, and trustee held possession of the
100 acres under a parol contract and equitable title, before T.'s
administrator and others got their judgments against H., that
land is wholly exempt from the lien thereof. Floyd v. Harding,
28 Gratt. 401, approved. Trout's Adm'r v. Warwick, 731.
STATUTES.-The law does not favor repeal by implication, unless the re
pugnance is quite plain, and then only to the extent of the repug-
nance. Holliday, Judge, v. Auditor, 425.
Though the profit belongs to the cestui que trust, yet the fiduciary is
entitled to be reimbursed the amount he has expended, with interest.
Baugh v. Walker, 99.
1. JUDICIAL SALES.—Before sale of realty can be decreed to pay judgment
liens, the court must in some way, be convinced that the rents and
profits will not in five years satisfy those liens. When the insufficiency
is alleged and not denied, there need be no enquiry; but where not
alleged, or if alleged, the allegation is denied, there must be enquiry
before a sale can be decreed. Ewart v. Saunders, 25 Grattan, 203,
and Horton v. Bond, 28 Grattan, 815, approved. Muse v. Frieden-
wald, 57.
2. FIDUCIARIES.-Guardian de facto-Guardian de facto is liable to his
wards for rents and profits received by him during his possession of
the corpus of their estate. Peale v. Thurmond, 753.
3. IDEM-Idem-Father-Advancements.-Father acting as such guardian
and liable for such rents and profits, is entitled to set-off against same,
the amount advanced his female ward's husband to assist him in
business; and it is inequitable to settle on the wife the whole she is
entitled to, without deducting the amount so advanced. Idem.
Sheriff's resignation of the second office, after by its acceptance he has
vacated the first, cannot restore him, nor otherwise affect the first.
Shell, Judge, v. Cousins, 328.
1. Parties and privies.-The judgment, however erroneous, of a court of
record having jurisdiction of the cause and of the parties, is binding
and conclusive upon parties and privies in every other court, until it
is regularly reversed by some court having jurisdiction for that pur-
pose, and can be questioned in no collateral way. Howison v. Weeden,
2. Case at bar.-N. was elected judge of P. W. county for six years, com-
mencing 1st January, 1874. He died 10th March, 1878. W. was elected
13th March, 1878, to fill the judgeship made vacant by N.'s death. H.
was elected 21st January, 1880, to that judgeship for six years, com-
mencing 1st January, 1880. W. and H. each essayed to exercise the
functions of the office. Former arrested W. G. H. for contempt; lat-
ter arrested E. E. M. for contempt. Both applied to this court for
writs of habeas corpus. The real controversy was between W. and H.
for the judgeship. This court decided that W. was elected, and was
entitled to hold that judgeship for the full term of six years from the
10th March, 1878. See ex parte Meredith and ex parte Harrison, 33
Gratt. 119. Before the expiration of that term, H. filed his petition to
this court for a mandamus to compel W. to surrender to him the said
judgeship.
If not actual parties to the controversy decided by this court in ex
parte Meredith and ex parte Harrison, supra, W. and H. were
privies thereto, and however erroneous, that decision not having
been reversed, is binding and conclusive on them, and cannot be
collaterally assailed. The mandamus must be denied. Idem.
1. JOINT PURCHASERS-Conveyance to one.-Where two persons jointly
purchase land under parol contract, one of them cannot take a con-
veyance thereof to himself, and thereby defeat the rights of his co-
purchaser, on the plea that the contract between them and their vendor
was not in writing. The grantee holds the legal title in trust for the
benefit of himself and his co-purchaser. Brown v. Brown, 619.
2. For case illustrative, see Idem.
On liquor licenses.-Ex parte Yeager, 11 Gratt. 655, was founded on
the law of 1849, which gave county courts arbitrary discretion as
to liquor licenses; French v. Noel, 22 Gratt. 454, on law of 1870,
was based on the same ground; Leighton v. Maury, 76 Va. 865, on
the law of 1880, construing that law as giving those courts a legal
discretion reviewable upon appeal or error upon petition of either
applicant or contestant; Ailstock v. Page, ante page 386, on law of
1880, amended by act of March 6, 1882, overrules Leighton v. Maury,
REVIEW OF CASES (continued.
so far as latter allows right of appeal or error to the contestant, but
decides nothing concerning the applicant. Ailstock v. Page and als.,
explained and approved. Ex parte Lester, 663.
RICHMOND CITY CIRCUIT COURT.
1. JURISDICTION.-This court has chancery jurisdiction only in cases where
it may be necessary or proper to make certain enumerated officers
or corporations defendants. The commissioner of agriculture is not
one of these. Blanton, Com'r, v. S. F. Co., 335.
2. JOINT SUIT.—Such suit may be brought by two or more of a class, for
benefit of all similarly affected. Bull v. Read, 13 Gratt. 86. By some
decisions in other states such joint suit must be brought by such per-
sons to avoid multiplicity of suits in irreparable damage. McClung
v. Livesay, 7 West Va. 329. Idem.
1. Postponement of delivery-Breach-Damages. --Where delivery is post-
poned at buyer's request, and then breach occurs, this postpones date
of breach in reference to the time at which damages therefor shall be
fixed. Smith v. Snyder, 432.
2. Delivery on event-Non-delivery before event-Case at bar.-In Sep-
tember, 1879, J. sold A. old iron rails to be delivered immediately
after delivery thereof to J. by York River Railroad Company at Rich-
mond dock, at $28 a ton. Company failed to make complete delivery
as soon as was expected, but made partial deliveries during several
months, and the rails so delivered were, as fast as delivered, turned
over to A., who, though constantly complaining of the delay, and told
he might drop the contract, by J., by whom no indulgence was ever
asked of A., accepted same. Iron was rapidly rising in price. A. con-
tinued to urge the delivery and J. to promise to deliver as fast as the
company delivered to him, and to press the company to deliver. On
19th January, 1880, only a few days after J.'s last delivery, A. demanded
immediate delivery of the residue, one hundred and ten tons, on
threat to buy in open market and charge difference to J. On 5th Feb-
ruary, 1880, A. declared the contract at an end, bought one hundred
and ten tons of old iron rails in market, at $44 per ton, presented his
account for difference between that and the contract price to J., who
refused to pay it. On 20th February, 1880, J. received several car
loads more of rails from the company, and offered same to A., who
refused to accept them. Afterwards A. sued J. and recovered judg-
ment for $1,750.79 and costs. At trial several instructions were asked
for by each party. All were refused and others given. For those
asked for by defendant and refused, and those given by the court,
see opinion. Of the former the first is as follows, viz: "First. The
court instructs the jury that if they believe that the contract between
the parties was that defendant was to deliver to plaintiff one hundred
and fifty tons of iron as soon as he could get it from the York River
Railroad Company, and was to receive $28 per ton therefor, and that
he did offer to deliver to plaintiff so much of said iron as he received
from the company, and as soon as he so received it, and that plaintiff,
after accepting part of said iron, refused to receive any more, then
they are to find for defendant." The second is substantially the
1. The first and second instructions asked for by the defendant, cor-
rectly propound the law, and are founded on evidence which was
before the jury, and which tended to prove the case therein sup-
posed, and should have been given.
2. It is unnecessary to notice the other instructions asked for by the
defendant.
3. The instructions given by the court are, in the abstract, correct,
but are predicated upon evidence not before the jury, and tended
to mislead and confuse them. Idem.
3. Contract of hazard-Sale in gross-Mistake.—A sale in gross, quoad
thing sold, means a sale without regard to quantity, and is in that
sense a "contract of hazard." In such case there is no ground for
relief. The mistake of the parties is the true ground of relief. Yost
v. Mallicote, 610.
4. Sale of the realty.-The dower right of the widow must be settled be-
'fore decreeing sale of the real estate. Wilson v. Branch, 67.
1. Districts—Trustees-Vacancies-City Council-Board of Education.
Acts 1870-71, chapter 308, section three, makes each city ward a school
district; section seven provides that all vacancies may be supplied at
any time within sixty days after occurrence, by the city council, which
shall divide the trustees into three classes, to hold office, one, two
and three years respectively, and enacts that, “should the city coun-
cil, in any case fail to act within the time prescribed, it shall be the
duty of the board of education to fill the vacancy or vacancies with-
out further delay." Kilpatrick v. Smith, 347.
2. CASE AT BAR.-In 1870 the board of education appointed E. and five
others trustees for the city of Portsmouth-three for each ward. City
council failed to divide them into three classes. They continued till
June, 1882, when city council created a new board of school trustees.
In July, 1882 the board of education appointed K. and eleven others
school trustees-three for each ward, the wards having been increased
to four-for said city; who duly qualified, organized, and entered
upon their duties. In August, 1882, E. and the five other appointees
of the city council obtained from the judge of the hustings court of
SCHOOL TRUSTEES (continued).
Portsmouth an injunction inhibiting K. and his eleven co-trustees
from acting as members of the school board of Portsmouth, &c. De-
fendants demurred and answered. The hustings court, on 28th
December, 1882, hearing the cause, overruled the demurrer and per-
petuated the injunction. On appeal to this court--
1. As this case involved the question of title to office, injunction was
not the proper remedy, and the demurrer to the bill should have
been sustained and the bill dismissed.
2. The appointment of E. and his five associates by the city council
was without authority of law, and void.
3. The appointment of K. and his eleven co-trustees by the board of
education was pursuant to law, and is valid. Idem.
3. Counties-Cities and towns.-By act approved 11th January, 1877, (Acts
1876-7, ch. 12, p. 9,) said clause 4 is repealed as to counties, and the
power of the board of education to appoint and remove trustees
therein ceased after 1st July, 1877; but not so as to cities and towns;
as to which the then law still prevails, and is found in Code 1873, ch.
79, 7. By said & 7, the right of the board of education is recognized
to appoint originally all the school trustees in cities. The city coun-
cils are authorized to supply any vacancies which may exist or occur
in the school board, within sixty days after their occurrence: pro-
vided, however, the city council, as soon as practicable after the
passage of this act (31st March, 1871,) shall designate which of the
trustees then in office shall go out at the end of one, which at the end
of two, and which at the end of three years. That section concludes
thus: Should the city council in any case fail to act within the time
prescribed (sixty days), "it shall be the duty of the board of educa-
tion to fill the vacancy or vacancies without further delay." Childrey
v. Rady, 518.
4. Classification-Vacancies.-Without the classification required, there
could be no regular plan of succession to the trusteeships. At the
end of three years from the original appointment, the terms of office
of all the trustees expired, and it became the duty of the board of
education to fill the vacancies, if the city council failed to act within
the time prescribed. Idem.
5. Officers-Oath of office-Vacancies.—School trustees are officers, and
as such are embraced by constitution, art. iii, 6, declaring that "all
persons, before entering upon the discharge of any functions as
officers of this state, must take and subscribe the following oath or
affirmation." This oath is a condition precedent to the discharge of
official duties as school trustees, and the failure to take this oath
causes a vacancy, which, unless filled by the city council within the
prescribed period, must be filled by the board of education. Idem.
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