2 Va. 474 | Va. | 1843
delivered the following as the opinion of tbe court:
The court is of opinion, that it appears from the evidence that Daniel Roberts did convey the land in the bill and proceedings mentioned to Redmon Cody, the ancestor of the female appellee: that such conveyance, though never recorded, and afterwards lost or destroyed, was effectual as against the grantor to vest the legal title in said Cody: and that the great lapse of time since said conveyance, in connexion with the continued and uninterrupted possession of the land by Cody and those claiming under him, furnishes a sufficient presumption against any claim on the part of the creditors of said Daniel Roberts. The court is therefore of opinion, that as the appellants have continued to hold possession of the property, and have' not asked for a rescission of the contract, it was proper, under the circumstances of the case, to decree a specific performance of the contract; and that in this there was no error in the decree. But the court is further of opinion, that the ancestor of the appellants was not bound to take the title of the appellees until the existence and validity of the said conveyance from Daniel Roberts had been judicially ascertained ; that the burthen of establishing those facts devolved upon the appellees; and therefore that they should have been decreed to pay the costs. The court is further of opinion, that as there is no record of the conveyance from Daniel Roberts, a commissioner should have been directed to execute a deed from him to the appellants. The court is further of opinion, that under the authority of Tibbs &c. v. Matthews &c. decided in this court on the sixth day of May 1829,
In Tibbs &c. v. Matthews &c. the court of appeals adjudged-the decree to be erroneous in this, that it was “personal against the heirs, and not conditional (as it ought to have been) that un^ less they pay the money, the lands be sold” &e.