101 Va. 709 | Va. | 1903
delivered the opinion of the court.
The controversy involved in this appeal is a branch of a litigation embracing seven separate suits in equity, all having the common object of subjecting the real estate of T. G-. Hudson and Isaac Hudson to the satisfaction of liens.
A practice which thus harasses .debtors by a multiplicity of suits, and subjects them to unnecessary cost, is oppressive, and ought not to be sanctioned by a court of equity.
Among the liens involved in that litigation is a deed of trust, bearing date April 25, 1S85, from T. G. Hudson, conveying real estate, to secure a liability to Elias Foglesong, whose administrator is the appellant here. The sole question for decision is whether or not that deed constitutes a lien on one-sixteenth of an acre of land, the property of appellee, W. G. Elliott.
It appears that T. G. Hudson and his father, Isaac Hudson, owned adjoining tracts of land in Bland county. In the year 1819, W. G. Elliott purchased from the former a small lot for a mill site and at the same time purchased from Isaac Hudson and wife one-third of an acre of land, with certain water rights in the adjoining land for the use of the mill.
While the agreement in respect to these sales was in parol, Elliott was at once placed in possession of the property, and immediately commenced the erection of a flouring mill on the lot purchased from T. G. Hudson, and a dwelling house and other improvements on the other lot. On January 5, 1880, Elliott received a conveyance to the lot on which the mill is located; and on July 28, 1885, the one-third of an aere and the water rights were likewise conveyed to him.
It likewise appears that the deed of trust is general in its terms, and does not describe the land conveyed by courses and distances, and that there is nothing on the face of the deed to indicate that it embraces, or was intended to embrace, the mill tract, or any part of it. As the grantor, T. G. Hudson, had years before parted with the possession and all beneficial interest therein to a purchaser who had erected a valuable flouring mill on the property, the presumption is that it was not intended to be embraced in the deed of trust. At all events, where the description of the subject-matter of a deed is too vague and uncertain to be self-explanatory, the burden rests upon those claiming under it to show to what it truly applies.
“Evidence aliunde is admissible in all cases where there is a doubt as to the true location of the survey, or a question as to the application of a grant to its proper subject-matter.” Reusens v. Lawson, 91 Va. 226, 235, 21 S. E. 347.
In this case no evidence was adduced for that purpose, and, although Eoglesong twice gave his deposition in the cause, he made no claim that the Elliott mill property was included in his trust deed, and no denial that he had actual notice of the prior sale. On the contrary, the evidence on behalf of appellee shows conclusively that only one-sixteenth of an acre of the
Exception was taken to the competency of the commissioner who took the account of liens and assets ’in the cause, on the ground that he had been examined as a witness, and the action of the court in overruling that exception is assigned as error.
His deposition had been taken before the account was referred to him, and appellant’s counsel, with knowledge of that fact, raised no objection to his competency until it was ascertained that his. findings were adverse to appellant’s present contention. The exception, under these circumstances, was properly overruled.
The point was made at bar, although not in the petition for appeal, that, while the deed of trust may not have been a lien on the mill property, some of the judgments which were satisfied out of the proceeds of sale of the land included in the deed of trust constituted liens on both properties, and that, under the doctrine of marshalling securities, the trust-deed creditor is entitled to subject the mill property to the extent to which the property affected by his lien contributed to the discharge of prior judgments.
As was said by this court in Lee v. Swepson, 76 Va. 173: “One thing is very clear-Hjiat securities will never be marshalled to the injury of those persons oyer whom the party claiming the benefit of the principle has no superior equity.”
The doctrine obviously has no application under the facts of this case.
The decree complained of, by which it was adjudged that the trust deed in question is not a lien on the property of appellee, is plainly right, and must be affirmed.
Affirmed.