22 Gratt. 443 | Va. | 1872
delivered the opinion of the court.
There are three assignments of error in this case, which I will notice in their order; and
First, “that it was error to render any decree in the case at a special term of the court without the consent of parties.”
The Code, ch. 158, § S3, among other things,'.provides that “ at any special term, any civil cause may be tried which could lawfully have been, but was not, tried at the last preceding term that was, or should have been, held; and any motion cognizable by such court may be heard and determined, whether it-was pending at the preceding term or not,” &c. “And any cause or matter of controversy in chancery then ready for |hearing may be heard and determined, with the consent of the parties
The decree complained of in this case was rendered at a special term of the Circuit court of Bland county, on the 17th day of December 1869. The cause was not then heard “with the consent of the parties” thereto. But it “could lawfully have been, but was not, tried at the last preceding term that was, or should have been, held.” By an act passed February 23, 1867, Acts of Assembly 1866-7, p. 668, chap. 234, § 2, it was declared that the Circuit court of Bland county should be held on the Wednesday after the third Monday in May and October. This act, it seems, so far as it fixed the time for holding the said court, continued in force until and after the said decree of the 17th day of December 1869, was rendered. Therefore, a regular term of the said court was, or should have been, held on the Wednesday after the third Monday in October 1869, which was the last term that was, or should have been, held preceding the said special term at which the said decree was rendered. It appears that this cause could lawfully have been, but was not, tried at the said term of the said court that was, or should have been, held on the third Wednesday after the third Monday in October 1869, as aforesaid. The subpoena was issued on the 16th day of February 1869, returnable on the first Monday in March next thereafter. The bill was filed at April rules next thereafter. There were but two defendants in the case, James E. Young and Russell Patton, the former of whom was a non-resident of the State. It appears that the process was duly executed on the home defendant, and that the non-resident defendant was duly proceeded against by publication. The home defendant appeared at a special term of the said court on the 26th day of July 1869, and filed his answer, to which the plaintiff replied generally, and the cause was then continued.
The next assignment of error is more substantial, and is the one mainly l’elied on in the case, viz:
Second, “It was error to render a decree for the sale of two-thirds of said tan-yard property, instead of the one-third conveyed by Zimmerman, upon which the lien was reserved by the deed.”
Whether this was error or not, depends upon the true construction of the deed of the 9th day of October 1865, exhibited with the bill, whereby George H. Williams and wife and William Zimmerman and wife conveyed their interest in the said tan-yard property to the said James E. Young.
It is now, as it always has been, perfectly competent for a vendor expressly to reserve on the face of the conveyance a lien on the property conveyed, or any part thereof, for the purchase money remaining unpaid, or any part thereof. Formerly he had an implied lien on the property for the purchase money remaining unpaid, though he conveyed the property to the purchaser without reserving a lien thereon in the conveyance, and without taking a mortgage or deed of trust on the property, unless the implication was repelled by circumstances showing an intention on the part of the vendor not to retain such a lien. The taking of a mortgage or deed of trust, or other security, for the purchase money was held sufficient to repel the implication. This implied
TMb provision, it is thus seen, leaves unaffected a lien “ expressly reserved on the face of the conveyance,” which lien continues to have the same force and effect it always had. The reason of this is obvious. None of the evils growing out of the vendor’s implied lien resulted from a lien expressly reserved on the face of the-conveyance. Being set forth in the very first link of the vendee’s chain of title, purchasers from him had. just as much notice of it as they would have had of eu lien upon the land by deed of trust or mortgage.
The question then is, What is the true construction of the deed? Did the grantors thereby retain a lien on> the whole of the property conveyed, or only one-half of it, as a security for the payment of the purchase money-remaining unpaid? They had, undoubtedly, a perfect right to retain a lien on the whole or the half of said property, according to their pleasure, even though that part of the purchase money remaining unpaid may have-been due and payable only to one of the vendors. Then-which of these two things did they intend to do? The-deed itself must answer that question, and we think it does plainly answer it. There cannot be a doubt about it, if we look only to the words by which the lien is retained, and that certainly is the most material part of-
The deed is between George H. Williams and Martha E. his wife, and William Zimmerman and Sallie E. his wife, of the first part, and James E. Young of the other part; and the grantors, “for and in consideration of $450 paid to the said George H. Williams, the receipt . whereof is hereby acknowledged, and also in consideration of three several notes this day executed by the said James E. Young to the said William Zimmerman, as follows: one note for $100, payable on the 1st day of January 1866, one other note for $200, payable on the 1st day of January 1867, both of said notes bearing interest from date, and also a third note for four hundred dollars, payable on the 1st day of January 1868, without interest, the receipt of which several three notes to Zimmerman is hereby acknowledged; and the further sum of one dollar cash in hand paid by said Young to said Williams and Zimmerman,” &c., “grant, bargain, sell and convey unto James E. Young their interest in a certain tract or parcel of land upon which there is a tan-
We have thus recited substantially, and almost literally, the entire deed, and we see nothing in it which is inconsistent with the construction we have put upon the words by which the lien is retained. On the contrary, we think that construction is supported by the other parts of the deed. The three parties, the two grantors and the grantee, held the property not only as co-partners, but as joint-tenants also. “With respect to unity of possession, joint-tenants are said to be seized, per mi et per tout—that is, each of them has the entire possession as well of every part as of the whole. They have not, one of them a seizin of one-half, and the other of the remaining half; neither can one be exclusively seized of one acre and his companion of another; but each has an undivided moiety of the whole, not the whole of an undivided moiety. From which it follows that the possession and seizin of one joint-tenant is the possession and seizin of the other.” Thus is the law laid down in 1 Lom. Dig. p. 612, § 8, marg. p. 476. “A tenancy in common differs from a joint tenancy in this respect: joint-tenants have one estate in the whole and no estate
Whether, therefore, we look only to the wordsjof the clause retaining the lien, or look also to the context of the deed, we think the lien is upon two-thirds of the tan-yard property; and therefore, there was no error in rendering a decree for the sale of two-thirds instead of one-third.
“Third. It was error in enforcing i'any lien in favor ■of Williams, as he had made a full conveyance and failed ■expressly to reserve a lien.”
The question presented by this assignment of error has already been sufficiently answered, hlo lien in favor of Williams was enforced by the decree. The only lien thereby enforced was in favor of Zimmerman. 1
We think there is no error in the decree, and that it ought to be affirmed. But as there may be some uncertainty in regard to the property belonging to the tan-yard and now subject to the said lien, which might tend to produce a sacrifice at the sale made under the said decree, it is proper, if either party require it, that before such sale Í3 made, an account should be taken of the said property, and of the kind, nature and quantity thereof; and also, if either party so require, it is proper that before such sale is made, an account should be taken of the amount remaining due and unpaid of the debts secured by the said deed of the 9th day of October 1865. The said affirmance ought, therefore, to be with instructions to the court below to conform to the foregoing opinion in regard to the taking of the said accounts, if required as aforesaid, before sale is made under the said decree.
Decree affirmed.