84 Va. 675 | Va. | 1888
delivered the opinion of the court.
On the 29th of January, 1879, the appellant, Levi Rosen
The said Rosenberger could not, properly, or safely, have paid the residuum of the purchase-money, still in his hands, even to the said Field, because of .the numerous docketed judgments aforesaid against the said Bowen.
In this condition of things the said Bowen, in August, 1882, served a notice on the said Rosenberger, charging that he had failed to comply with his contract, and demanding the immediate return of the possession of the said land; and, shortly thereafter, sued out of the clerk’s office of the county court of Culpeper the summons of unlawful detainer, which is this suit. The case lingered on the docket of the said court until May, 1886, when it was tried by the court, both parties having-waived a jury, and judgment rendered in favor of the plaintiff, Bowen.
The judgment complained of in this court, by writ of error to the judgment of the circuit court of Culpeper, affirming the judgment of the county court of Culpeper, is clearly- and wholly erroneous. The plaintiff, Bowen, was not entitled to demand or to have the possession of the land, because he was not, and never was, in a position to call upon his vendee, Rosenberger, who was lawfully in possession, under the contract, for the unpaid balance of purchase-money, according to
The judgment of the county court was erroneous, and should have been for the defendant, Rosenberger; and the circuit court erred in affirming the judgment of the county court; which said judgments are reversed and annulled.- And the action of unlawful detainer should have been dismissed, with costs to the defendant, Rosenberger, which this court will order.
Judgment reversed.